Is pornography copyrightable?
Absolutely yes, says Marc Randazza, counsel for First Amendment Lawyers Association (“FALA”) in an amicus curie brief filed this week in Malibu Media v. Fantalis et al., in the Northern District of Colorado.
FALA submitted its brief to respond to the what-is-becoming-more-common assertion that pornography somehow is no longer entitled to copyright protection. Even though it has been more than 100 years since the Supreme Court articulated an objective test to determine copyrightability– a test that turns on a work’s originality rather than its subjective worth — at least two judges have suggested that the issue may not be so settled. See here and here.
The ramifications of copyrightability hinging on subjective tastes and preferences would be huge; the results very scary. Randazza writes —
Such a limitation would naturally progress beyond pornographic films, and would embrace literature and photographs as well, reaching its tendrils out to grasp erotica and then works that some may find objectionable for other reasons – swallowing ever more content in an expanding void of non-copyrightability. The restriction [defendant] seeks threatens to plunge protection for free speech back into a much darker era in American free expression.
While the copyright limitations [defendant] seeks may start out aimed at the adult industry, and potentially even solely affecting it, it is certain that it would bleed into other creative sectors and discourage their production as well. The message sent by requiring a subjective analysis of utility as a prerequisite to copyright registration is clear: If someone disapproves enough about what you make to complain to a court about it, even when their position is unsupported by law, you will be denied your Constitutional ability to protect it. The casualties of such legal poison will be far-reaching and indiscriminate.
In its brief, FALA warns of the dangers of allowing subjectivity to seep into copyright law, and reminds us what copyright was like back in the “darker era” of free expression, in the late 1800s, when courts made subjective determinations about the “usefulness” of creative works. In, Broder v. Zeno Mauvais Music Co., 88 F. 74 (N.D. Cal. 1898), for example,
the Court objected to the use of the word “hottest” in the song “Dora Dean,” and found that the song lacked copyrightability for as long as the word “hottest” remained within its composition. Id. In a decision that would be mind-boggling today, the San Francisco-based court wrote that “the word ‘hottest,’ as used in the chorus of song ‘Dora Dean,’ has an indelicate and vulgar meaning, and that for that reason the song cannot be protected by copyright.” Id.
Similarly, the rights of pornographers and pornography under copyright law should not be a hot issue today. Pornography and erotic art have been around since the dawn of man. There is nothing new or novel about today’s porn which should cause courts to exclude it from protection under copyright law. Like it or not, pornographers produce original, creative works that should continue to have copyright protection.
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