Are Artistic Works that Depict Obscene or Criminal Acts Copyrightable?

by Matt Poldberg & James Boyajian

If obscene acts or criminal acts such as “solicitation, conspiracy to commit prostitution, pimping and/or pandering” appear in a pornographic film, is the footage legally protect-able under Federal copyright law?

Liuxia Wong, one of the many of defendants in infringement suits aimed at BitTorrent users, was accused of sharing the unlicensed adult movie “Amateur Allure Jen” on BitTorrent.  The content owner, Hard Drive Productions, informed her that she could be liable for $150,000 if its infringement case went to court, but that it would be willing to settle for just $3,400.

Often, defendants feel that between lawyers’ fees, litigation costs, and time lost, it is better to just pay a smaller amount to make a suit “go away” than to fight it; and this is exactly what copyright trolls like Hard Drive Productions bank on.  But with the help of IP litigator Steven Yuen, Liuxia Wong decided to get creative and sue Hard Drive Productions for declaratory relief in the Northern District Court of California, claiming that “Amateur Allure Jen” could not be copyright-protected in the first place because it contained obscene and criminal content such as “solicitation, conspiracy to commit prostitution, pimping and/or pandering.”

Wong’s complaint argued that obscene and criminal content does not “promote the Progress of Science and useful Arts” under the Patent-and-Copyright Clause of the U.S. Constitution Art. I Sec. 8, Cl. 8, and alluded to “[e]arly Circuit law in California” to that effect.  But such an argument will be an uphill battle, if not entirely barred, as Ninth Circuit precedent has held that obscenity is NOT a defense to a copyright infringement claim.  See, e.g., Jartech v. Clancy, 666 F.2d 403 (9th Cir.1982) (citing Mitchell Brothers Film Group v. Cinema Adult Theatre604 F.2d 852 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980)); but see Devil Films, Inc. v. Nectar Video , 29 F. Supp. 2d 174 (S.D.N.Y. 1998) (rejecting copyright protection over obscene matter where a plaintiff with “unclean hands” violated a federal statute prohibiting the business of selling obscene material in interstate commerce).  The problem with an obscenity defense, according to the Jartech decision, is that it would “[f]ragment copyright enforcement, protecting registered materials in a certain community, while, in effect, authorizing pirating in another locale.”

In the early seminal decision authored by Justice Oliver Wendell Holmes, the Supreme Court held (7-2) that,

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside the narrowest and most obvious limits . . . copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value, – it would be bold to say that they have not an aesthetic and educational value, – and the taste of any public is not to be treated with contempt . . . That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs’ rights. . . . the plaintiffs have rights entitled to the protection of the law.

Bleistein v. Donaldson Lithographic Co., 188 U.S. 239 (1903) (establishing principle of “aesthetic non-discrimination”).   There is commercial value in the adult movie industry today just as there was in the adult frescoes industry of the 16th Century.  And in light of Bleistein, Judges are unlikely to make artistic or moralistic calls on what kinds of works promote the progress of arts and sciences.  It would be surprising if the N.D. California Court diverges from the Bleistein, Mitchell, and Jartech line of cases to grant Ms. Wong her desired declaratory relief on the basis that obscene art is not copyrightable.  Less clear is the issue of works containing criminal content, such as films containing actual rape or prostitution.  But one can imagine that, while such works may be banned, seized, and destroyed by the government under statutes which do not run afoul of the First Amendment, there is no precedent precluding copyright protection of them.  Thus, if the court finds that Ms. Wong’s IP address distributed an unlicensed copy of Hard Drive Production’s original movie, she will be guilty of copyright infringement.

Matt Poldberg & James Boyajian are two of the co-founders of www.StreamIndustry.com, a trade site dedicated to analyzing the convergence of media, communications, and entertainment industries for the public.  Matt is a Web-developer/design consultant based in Venice Beach and James is an intellectual property attorney based in downtown Los Angeles.

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