Attorney Steve® BitTorrent Copyright Defense - Can pornographic films be protected under the United States Copyright Law?
Introduction
There are several companies that will or have filed copyright infringement lawsuits over the downloading or sharing of their copyright registered content (ex. Flava Works, Malibu Media and Strike 3 Holdings, LLC). These companies can be very aggressive in pursuing these matters and a few of my clients have asked me - "can these porno movies really be copyrighted, even if they are obscene, or the film title is obscene?" In this blog I seek to dive into this issue. In general, I would say yes, they can be the subject of a valid and enforceable copyright allowing for the copyright holder to file a federal court lawsuit for infringement. Strike 3 Holdings, for example, has filed THOUSANDS of file-sharing movie infringement cases across the United States including in California, Florida, Illinois, Texas, New York, Pennsylvania, Maryland and other states.
Legal Issue
Can you copyright register an obscene adult pornographic video or film?
Hypothetical Facts
A company creates videos advertising sex between "stepdads and stepdaughters" who appear to be minors, and depicts other obscene forms of sex in its videos. The company wants to apply for copyright protection so they can sue infringers who share their videos online. Will the United States Copyright Office register such a video, or will it be denied due to obscenity laws?
Quick Conclusion
Pornographic works may be registered with the U.S. Copyright Office, provided that they contain a sufficient amount of original authorship. (Compendium of U.S. Copyright Office Practices, Chapter 300 - Copyrightable Authorship: What Can Be Registered)
As a general rule, a registration specialist will not examine a work or authorship to determine whether it contains material that might be considered obscene. (Compendium of U.S. Copyright Office Practices, Chapter 300 - Copyrightable Authorship: What Can Be Registered)
No Ninth Circuit or U.S. Copyright Office decisions were identified that discussed whether the U.S. Copyright Office will grant copyright registration for an obscene adult pornographic video or film. However, a number of Ninth Circuit cases note that copyright registration has been granted to owners of pornographic films.
In Braun v. Primary Distrib. Doe No. 1, No. 12-5812 MEJ, No. 12-5813 MEJ, No. 12-5814 MEJ, No. C 12-5786 MEJ (N.D. Cal. 2012), the United States District Court for the Northern District of California noted that the plaintiff registered a copyright in the motion picture, Star Wars XXX: A Porn Parody.
Similarly, in Datatech Enters. LLC v. FF Magnat Ltd., No. C 12-4500 CRB (N.D. Cal. 2013), the plaintiff was the owner of the copyrights to numerous pornographic movies.
It is well settled that, in the Ninth Circuit, obscenity is not a defense to a claim of copyright infringement. (Strike 3 Holdings, LLC v. Doe, Case No. 19-cv-00723-JCS (N.D. Cal. 2019), Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982))
Federal copyright law does not distinguish between pornographic and non-pornographic works. Therefore the nature of the sexual material that a plaintiff is suing to protect is irrelevant. (Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir. 2018))
Law
The Compendium of U.S. Copyright Office Practices, Chapter 300 - Copyrightable Authorship: What Can Be Registered states that pornographic works may be registered with the U.S. Copyright Office, provided that they contain a sufficient amount of original authorship. As a general rule, a registration specialist will not examine a work or authorship to determine whether it contains material that might be considered obscene.
Obscenity
Pornographic works may be registered with the U.S. Copyright Office, provided that they contain a sufficient amount of original authorship.
As a general rule, a registration specialist will not examine a work or authorship to determine whether it contains material that might be considered obscene. See Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 858 (5th Cir. 1979) (concluding that the 1909 Act protects “all creative works, obscene or non-obscene, that otherwise meet the requirements of the [statute]” and that there is “no explicit or implicit bar to the copyrighting of obscene materials”).
However, if a work contains material that appears to fall within the scope of the Child Protection Act, the specialist will refer the work to the Associate Register of Copyrights and Director of Registration Policy & Practice.
If the Associate Register determines that the work clearly falls within the scope of Title 18, Sections 2251-2255, and if the Register of Copyrights concurs, the application, deposit copy(ies), and any other materials that have been submitted to the Office will be referred to the U.S. Department of Justice. See Operating Guidelines Regarding the Child Protection Act; Public Availability, 52 Fed. Reg. 10,177 (Mar. 30, 1987).
BACKGROUND
Braun is an individual doing business as Axel Braun Productions, with his principal place of business located in Porter Ranch, California. Axel Braun Productions directs, markets, and distributes adult entertainment products, including Internet website content, videos, DVDs, and photographs. Id. ¶ 10. Plaintiff is the co-producer and co-claimant of the copyrights in the motion picture, Star Wars XXX: A Porn Parody. Plaintiff registered the copyright for Star Wars XXX: A Porn Parody with the United States Copyright Office, and the Copyright Office assigned the work the registration number PA 1-787-699.
Similarly, in Datatech Enters. LLC v. FF Magnat Ltd., No. C 12-4500 CRB (N.D. Cal. 2013), the plaintiff was the owner of the copyrights to numerous pornographic movies:
Plaintiff Datatech Enterprises LLC ("Datatech") is a United States company and owner of the copyrights to numerous pornographic movies. Defendant FF Magnat Ltd. ("Oron") is a Hong Kong company that operated a file-sharing website Oron.com. Oron describes itself as a legitimate "cloud-based" file storage site that sold premium (i.e., faster) versions of its uploading and downloading services to paying members. Oron also says that it made good faith efforts to combat the alleged illegal activities of a few of its users. Datatech Enters. LLC v. FF Magnat Ltd. (N.D. Cal. 2013).
A discussion of the obscenity defense to a claim of copyright infringement of registered pornographic works may also be instructive.
In Strike 3 Holdings, LLC v. Doe, Case No. 19-cv-00723-JCS (N.D. Cal. 2019), the United States District Court for the Northern District of California noted that while the copyright eligibility of pornography is unsettled in many circuits, in the Ninth Circuit, pornography's protection under copyright law has been settled for decades under Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982):
The D.C. court also characterized its holding as limited, given that "the typical [copyright infringement] case does not involve pornography," the copyright eligibility of which is "unsettled in many circuits." In the Ninth Circuit, however, pornography's protection under copyright law has been settled for decades. See Jartech, Inc. v. Clancy, 666 F.2d 403, 405-06 (9th Cir. 1982). Doe offers no argument in this case why the holder of copyright to pornographic material is less entitled to discovery to identify a purported infringer than the owner of any other work would be. See, e.g., Strike 3 Holdings, LLC v. Doe, No. 18-CV-2648 (VEC), 2019 WL 78987, at *4 (S.D.N.Y. Jan. 2, 2019) (stating that Strike 3's "interest in protecting its copyrighted material from infringement . . . is not lessened by the salacious content of the material").
In Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982), the plaintiffs were producers, distributors, and displayers of adult movies. The defendant city implemented a public nuisance abatement ordinance aimed at ridding the city of its adult movie theaters. Representatives of the defendant city entered a theatre while the plaintiff's film was playing and took photographs every few seconds of the visual screen images while a tape recorder recorded the entire soundtrack of the films. The photographs were subsequently reproduced in small prints of fifty per page, with the dialogue from the tape recordings printed underneath. These materials were used by the defendant city in determining that the theatre was a nuisance and in the subsequent abatement proceedings against the theatre. The plaintiffs sued for copyright infringement. The jury returned special verdicts holding that obscenity is a defense to a copyright infringement action:
James and Artie Mitchell are the producers, distributors and displayers of adult movies. The plaintiffs below (hereinafter, "Mitchells"), are entities, controlled by the Mitchells, which perform these various functions. The defendants in the trial court were attorney James Clancy, and four individual members of the Santa Ana City Council (hereinafter, collectively referred to as "the Council").
On January 19, 1976, Clancy entered into a contract with the City of Santa Ana to act as special counsel to the city for the drafting, adoption and implementation of a public nuisance abatement ordinance aimed at ridding the city of its adult movie theatres. Subsequently, the Council adopted a city ordinance which declared that certain cinematic depictions of sexual activities constituted a nuisance. Later, an amendment to the ordinance provided a procedure for the abatement of such nuisances. On October 26, 1976, the Council adopted a resolution declaring a Mitchell Brothers' theatre to be a nuisance for exhibiting such films. The City Attorney was ordered to abate the nuisance and all of the Mitchells' licenses and permits were revoked.
On October 12, 1976, the Mitchells filed a suit against the Council for copyright infringement of five properly copyrighted motion pictures. The complaint alleged that an agent of the Council surreptitiously entered their theatre in Santa Ana and employed a process perfected by Clancy, whereby photographs were taken every few seconds of the visual screen images while a tape recorder recorded the entire soundtrack of the films. The photographs were subsequently reproduced in small prints of fifty per page, with the dialogue from the tape recordings printed underneath. These materials were used by the Council in determining that the theatre was a nuisance and in the subsequent abatement proceedings against the Mitchell theatre.
The Mitchells' copyright infringement suit proceeded to trial and on December 14, 1978, the jury returned special verdicts which found that:
"(1) each defendant was responsible for the copying of five movies to which the plaintiffs held a copyright;
(2) the use made by the defendants of the copy of the films was a fair use;
(3) each film was obscene;
and
(4) the profits realized by the defendants as a result of the infringement of the copyright for each film was 'none.' "
On June 29, 1979, the trial court considered a counterclaim filed by the Council, which sought a declaratory judgment that the five pictures were obscene as a matter of law and should be seized as contraband.
The court found that the action had been rendered moot by the determination made in the case-in-chief and that there no longer existed a case or controversy between the parties. Upon these findings, the court concluded that it lacked jurisdiction to render a declaratory judgment on the issue of the obscenity of the films, that it lacked the jurisdiction to authorize the forfeiture of materials found to be outside the copyright laws, and that federal copyright law made no specific provision for the exclusion of "immoral articles" or "obscene matter" from its protection.
On October 31, 1979, the trial court entered judgment for the Council and against the Mitchells for $23,157.11 in attorney's fees. This judgment was based upon the conclusion that the copyright infringement suit brought by the Mitchells was vexatious and brought to harass the defendants.
The court noted that essentially the same plaintiffs had unsuccessfully tried the issue in the United States District Court in Texas. The court felt that the timing of the suit suggested that it may have been instituted to intimidate the Council members in their consideration of the nuisance action pending against the plaintiffs. The court also questioned the plaintiffs' intent in bringing the suit against some, but not all, of the Council members in their individual capacities and in naming special counsel Clancy as a defendant, but not including the actual agent who made the film and sound reproductions.
From these actions, the Mitchells have appealed the special verdicts returned by the jury, finding that obscenity is a defense to a copyright infringement action and that the Council's use was a fair use. They have also appealed the award of attorney's fees. The Council has appealed the court's dismissal of its counterclaim.
On appeal, the Ninth Circuit Court of Appeals rejected the defendant's obscenity defense to the plaintiff's claim of copyright infringement. The Court explained that obscenity is a community standard that may vary to the extent that controls thereof may be dropped by a state altogether. Acceptance of an obscenity defense would fragment copyright enforcement, protecting registered materials in a certain community, while, in effect, authorizing pirating in another locale.
THE COPYRIGHTABILITY OF OBSCENITY
Throughout pretrial proceedings and at trial, the Mitchells unsuccessfully asserted that obscenity was not a valid defense to a claim of infringement.
The Constitution authorizes the granting of copyrights "(t)o promote the Progress of Science and useful Arts," U.S.Const. art. 1, § 8, cl. 8. In response, Congress has authorized the copyrighting of "original works of authorship." 17 U.S.C. § 102 (1976). The Council argues that Congress may not grant copyright protection to obscenity as that would defy the constitutional mandate of promoting the progress of science and useful arts. The Mitchells assert that Congress has reasonably sought to effectuate the constitutional directive by enacting a content-free statute.
This Court, in considering the copyrightability of fraudulent materials in Belcher v. Tarbox, 486 F.2d 1087 (9th Cir. 1973), stated:
There is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work. The gravity and immensity of the problems, theological, philosophical, economic and scientific that would confront a court if this view were adopted are staggering to contemplate. It is surely not a task lightly to be assumed, and we decline the invitation to assume it. 486 F.2d at 1088.
The Belcher decision was relied upon by the Fifth Circuit in rejecting obscenity as a defense to copyright infringement in a case which also involved the Mitchells. Mitchell Brothers Film Group v. Cinema Adult Theatre, 604 F.2d 852 (5th Cir. 1979), cert. denied, 445 U.S. 917, 100 S.Ct. 1277, 63 L.Ed.2d 601 (1980). That opinion traced the history of copyright laws, and in it the Fifth Circuit observed that any time a content-based statute had been passed by Congress, it has shortly thereafter been replaced with a content-free law.
The leading treatise on copyright has called the Fifth Circuit's Mitchell Brothers case "the most thoughtful and comprehensive analysis of the issue." Nimmer on Copyright, § 2.17, p. 2-194.2 (1980). Nimmer also considers Mitchell Brothers to represent the prevailing view on this issue. While the case dealt with the now repealed Copyright Act of 1909, specifically 17 U.S.C. § 4, the language of the present statute requires the same interpretation. Prior law referred to "all writings of an author," while the current statute employs the similar phrase "original works of authorship." 17 U.S.C. § 102 (1976).
Pragmatism further compels a rejection of an obscenity defense. Under the dictates of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether. Paris Adult Theatres I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); United States v. 2,200 Paper Back Books, 565 F.2d 566, 569-70 (9th Cir. 1977). Acceptance of an obscenity defense would fragment copyright enforcement, protecting registered materials in a certain community, while, in effect, authorizing pirating in another locale.
In Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir. 2018), the defendant owned a website that hosted pornographic images and videos for users to view. The plaintiff, a creator and distributor of pornographic movies, sued the plaintiff for copyright infringement after it found unlicensed clips of its movies on the defendant's website. The Ninth Circuit Court of Appeals noted that federal copyright law does not distinguish between pornographic and non-pornographic works and therefore the nature of the sexual matter that the plaintiff is suing to protect was irrelevant:
Much of Ventura's briefing draws our attention to the lurid sexual material on Motherless. And Ventura is suing to protect its own pornographic creations from infringement. But federal copyright law does not distinguish between pornographic and non-pornographic works, so the nature of the sexual material that Ventura creates and Motherless hosts is irrelevant.
Flava Works case
There was another case that discussed obscenity and illegality in porn movies. In Flava Works, Inc. v. Gunter, 689 F.3d 754, 755-756 the court held:
"Flava specializes in the production and distribution of videos of black men engaged in homosexual acts. Although some people would disapprove of such a service, there is no suggestion that it is illegal; and anyway the prevailing view is that even illegality is not a bar to copyrightability. Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982); Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55 (5th Cir. 1979); Belcher v. Tarbox, 486 F.2d 1087, 1088 (9th Cir. 1973); 1 Nimmer & Nimmer, supra, § 2.17, pp. 2-195 to 2-197. As pointed out in the Jartech case, "obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether. Paris Adult Theatre I v. Slaton, [*756] 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973); United States v. 2,200 Paper Back Books, 565 F.2d 566, 569-70 (9th Cir. 1977).
Acceptance of an obscenity defense would fragment copyright enforcement, protecting registered materials in a certain community, while, in effect, authorizing pirating in another locale." 666 F.2d at 406. A separate question, which is unresolved, and is unnecessary to resolve in this case, is the applicability of the doctrine of in pari delicto (equally at fault), which we discussed recently in Schlueter v. Latek, 683 F.3d 350, 355-56 (7th Cir. 2012), to an infringement suit by the holder of copyright on an illegal work. It could be argued that the courts shouldn't be bothered with a suit that, whichever side wins, will have been won by a wrongdoer. No matter; as we said, there is no contention that any of Flava's videos are illegal."
Legal Authorities Cited
Braun v. Primary Distrib. Doe No. 1, No. 12-5812 MEJ, No. 12-5813 MEJ, No. 12-5814 MEJ, No. C 12-5786 MEJ (N.D. Cal. 2012)
Datatech Enters. LLC v. FF Magnat Ltd., No. C 12-4500 CRB (N.D. Cal. 2013)
Strike 3 Holdings, LLC v. Doe, Case No. 19-cv-00723-JCS (N.D. Cal. 2019)
Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982)
Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597 (9th Cir. 2018)
Here is another good article regarding porn and copyright law.
Contact a Copyright Porn Lawyer
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