Is Pornography Copyrightable?

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.