Is Pornography Copyrightable?

[Barry-xlovecam]

http://www.courthousenews.com/2012/02/03/43613.htm

Better hope this lawsuit is dismissed -- the only real question raised is pornography a "useful art" but the question may be too subjective to be decided upon by a court of law. (Let's hope -- it is an election year ...)

Free Speech precludes the *obscenity* argument (it's a red herring argument).

Suing individual infringing downloaders has backfired badly ...

[Spunky]

I'd talk to a lawyer regarding this

[mikesouth]

Waste of time already decided many times, it is copyrightable.

[just a punk]

Originally Posted by mikesouth

Waste of time already decided many times, it is copyrightable.

Quoted for truth.

[DWB]

Get Gideon Gasmaster in here to sort it out.

[bookbuster]

they should really stop suing people that download on bit torrent because they are obviously going to lose a landmark case if they keep this up.

[epitome]

Originally Posted by bookbuster

they should really stop suing people that download on bit torrent because they are obviously going to lose a landmark case if they keep this up.

And your role in the industry is?

[bookbuster]

Originally Posted by epitome

And your role in the industry is?

What is the strategy here? Lets not issue cease and desist letters when we find our material being pirated. The bit torrent links are not labeled as copyrighted and mislabeled often. Then we record everyone ip's, sue half of the united states, and hope nothing bad happens?

this will back fire

[epitome]

Originally Posted by bookbuster

What is the strategy here? Lets not issue cease and desist letters when we find our material being pirated. The bit torrent links are not labeled as copyrighted and mislabeled often. Then we record everyone ip's, sue half of the united states, and hope nothing bad happens?

this will back fire

1) it doesn't matter if it's labeled as copyrighted. If it is, it is.

2) Lawyers get paid well and can determine if they are suing the correct people. There are dumb lawyers and plaintiffs and if they are doing it wrong, they will pay in the long run. Doesn't mean nobody should sue when you're getting ripped off.

[Barry-xlovecam]

Originally Posted by mikesouth

Waste of time already decided many times, it is copyrightable.

Looks like it depends on who you ask -- In the second case a Federal Judge alludes to the unsettled status of copyright when it comes to porn

Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F. 2d 852 - Court of Appeals, 5th Circuit 1979 p. 855

It appears to us that Congress has concluded that the constitutional purpose of its copyright power, "[t]o promote the Progress of Science and useful Arts," U.S.Const. art. 1, § 8, cl. 8, is best served by allowing all creative works (in a copyrightable format) to be accorded copyright protection regardless of subject matter or content, trusting to the public taste to reward creators of useful works and to deny creators of useless works any reward. It is not surprising that Congress would choose to rely on public acceptability as a measure of a work's worth rather than on the judgment of such public officials as the Register of Copyrights[6] and federal and state judges. As Justice Holmes said, in rejecting the argument that under an earlier version of the Copyright Act the courts had a duty to pass upon the artistic merits of engravings and prints,

p. 858

We can only conclude that we must read the facially all-inclusive 1909 copyright statute as containing no explicit or implicit bar to the copyrighting of obscene materials, and as therefore providing for the copyright of all creative works, obscene or non-obscene, that otherwise meet the requirements of the Copyright Act.[12]

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NO. 11-10802-WGY
October 31, 2011

Footnote p.4
2
It is undisputed that Liberty Media is a distributor of
lawful, albeit hardcore, pornography, and the Motion Picture is
itself hardcore pornography. Notably, it is a matter of first
impression in the First Circuit, and indeed is unsettled in many
circuits, whether pornography is in fact entitled to protection
against copyright infringement. Copyright protection in the
United States was ?effectively unavailable for pornography? until
the landmark decision by the Fifth Circuit in Mitchell Brothers
Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55, 858
(5th Cir. 1979) (holding that the Copyright Act neither
explicitly nor implicitly prohibits protection of ?obscene
materials,? such as the films at issue there, and rejecting the
defendant?s affirmative defense of ?unclean hands?). See also
Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982)
(stating, in the context of copyright infringement of a
pornographic film, that ?[p]ragmatism further compels a rejection
of an obscenity defense? because ?obscenity is a community
standard which may vary to the extent that controls thereof may
be dropped by a state altogether?). Compare Devils Films, Inc.
v. Nectar Video, 29 F. Supp. 2d 174, 175-77 (S.D.N.Y. 1998)
(refusing to exercise its equitable powers to issue a preliminary
injunction against infringement of pornographic films and ?commit
the resources of the United States Marshal?s Service to support
the operation of plaintiff?s pornography business,? holding that
the films were ?obscene? and illegally distributed through
interstate commerce), with Nova Prods., Inc. v. Kisma Video,
Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB),
2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the
question of whether particular pornographic films are ?obscene?
is one of fact for the jury, and that, even were the films deemed
to be obscene, it would not prevent their protection under a
valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell
Bros., 604 F.2d 852). Congress has never addressed the issue by
amendment to the Copyright Act. See Ann Bartow, Pornography,
Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799,
833 (2008). This issue, however, is not presently before the
Court and the Court expresses no opinion on it here.

The possibility that the issue be revisited is troubling to say the least ...
Liuxia Wong v. Hard Drive Productions, Inc. is in the 9th Federal Circuit so the venue is favorable to the Porn Industry in general.

[Porno Dan]

I know a little bit more about this some people on this board.

One of the main reason I still release DVDs is that I register two of them every week to the US Copyright Office via http://copyright.gov/ and I get back certificates of registration in accordance with title 17, United States code, attesting they are registered with the Copyright office.

This enables us to go after end users who illegally download my content.

[sixsax]

Originally Posted by bookbuster

The bit torrent links are not labeled as copyrighted and mislabeled often.

Trolled the thread right there.

[gideongallery]

Originally Posted by mikesouth

Waste of time already decided many times, it is copyrightable.

it been proven many times it free speech and has a right to exist

however the point about weather it entitled to the monopoly power of copyright has not yet been argued and proven.

[Nautilus]

That's troubling development to say the least...

[dgraves]

Originally Posted by bookbuster

they should really stop suing people that download on bit torrent because they are obviously going to lose a landmark case if they keep this up.

or win one!

[gideongallery]

Originally Posted by sixsax

Trolled the thread right there.

it not a troll it a fact

This fact john steele sue people business model includes honeypoting gay porn under titles of tv shows.

People download the current season of castle and find a porn video instead (and get sued for infringement because of it)

What would be really interesting if this was one of those cases because under that situation any distribution charges have a legit defence (tricked into distributing obscene material -- see the nasty dollars kiddie porn issue that happen here)

Leaving them totally free to take out monopoly protection for porn.

Thank you John Steele.

[baddog]

Originally Posted by gideongallery

it been proven many times it free speech and has a right to exist

however the point about weather it entitled to the monopoly power of copyright has not yet been argued and proven.

I don't think anyone is suggesting you can copyright the weather.

[scarlettcontent]

yes .

[Dirty Dane]

The South-Korean case showed that even if porn were illegal it were still copyrightable.

[gideongallery]

Originally Posted by Dirty Dane

The South-Korean case showed that even if porn were illegal it were still copyrightable.

remind me again what you keep saying every time i bring up precedents from EU.

Oh yeah it not the united states so it doesn't count

South-Korean legal system has some significant differences to the American System.