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Is adult pornography enforceable as a copyright or is it obscene and lack originality?

Posted by Steve Vondran | Nov 28, 2019 | 0 Comments

Attorney Steve® Copyright Essentials - "Original Works of Authorship" vs. Obscenity laws.

California obscenity copyright defense lawyer

Next Phase Distribution, Inc. v. John Does 1-27 

Introduction

Nowadays you have two major companies seeking to enforce their "registered copyrights" relating to adult pornographic videos - Strike 3 Holdings, LLC and Malibu Media, LLC. There is also a company called Flava Works and there may be some others we are not yet aware of, and undoubtedly there will be more production companies in the future.  One question that arises in the context of copyright defenses is whether or not an adult porno film qualifies for copyright protection.  In other words, is the alleged copyrighted Work:

  • Original
  • Obscene
  • A "work of authorship"

This blog talks about case law in the area of "obscenity."  If the work is obscene, it would not be enforceable.  This may be raised as a defense in a copyright infringement action.  

2019 Update:  Strike 3 Holdings is filing "Bill of Discovery" actions in Florida Miami-Dade (County Court).  Many IP's are named in the action and motions to quash are being filed.  We have just seen one case where it appears they are not pursuing the IP subscriber after facing a very detailed motion to quash.

Federal Case law regarding obscenity

Here is one case from the Federal Courts in New York - Case 2:15-cv-03504-JFB-SIL, holding that an adult movie infringement case may pass the initial test for copyrightability:

MALIBU MEDIA, LLC, Plaintiff, against JOHN DOE,

subscriber assigned IP address 98.116.160.61, Defendant

"Relying on Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165 (S.D.N.Y. 2012), Defendant argues in opposition that “judges in [the] S.D.N.Y. are seriously questioning the eligibility of the copyright protection for obscene motion pictures.” See Def.'s Reply Mem. at 4. However, in Next Phase Distribution, Inc., the court held that, although “the case law is unsettled regarding whether pornography may legitimately be copyrighted, for the limited purposes of this Motion for Discovery, the fact that [the plaintiff] is the registered copyright owner of the Motion Picture satisfies the requirement of a prima facie showing of copyright infringement.” 284 F.R.D. at 171 n.5.

Indeed, the court allowed the plaintiff to serve a subpoena on the defendant's ISP because the plaintiff “alleged a prima facie case of copyright infringement and it [could not] identify [the John Doe defendant] without a courtordered subpoena.” Id. Similarly, Malibu Media's allegations that it is the registered owner of the copyrights at issue in this action are sufficient to allege a prima facie case for copyright infringement. See also In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. at 87 n.8 (“For purposes of this analysis, it is assumed that plaintiffs' works are entitled to copyright protection, though that may be an open question.”).

Other cases 

There was a nice discussion of adult porno films in the case of Liberty Media Holdings LLC v. Swarm Sharing Hash File and Does 1-38:

"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.

Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174 - Dist. Court, SD New York 1998

In this case the Court noted:

"While the Court has issued similar orders authorizing the seizure of pirated copies of major commercial films, this application involves different considerations as evidenced by Exhibit A, which lists more than 200 titles under several categories, including, "Straight Anal," "Lesbian," "Transsexual" and one even more explicit category. A viewing of three videotapes, unlicenced copies of which plaintiff purchased in defendants' stores, confirms what the titles suggest — they are hard core pornography bereft of any plot and with very little dialogue. These videotapes are obscene. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Thus, the question presented by this application is whether the Court should exercise its equitable powers and commit the resources of the United States Marshal's Service to support the operation of plaintiff's pornography business. While the Court may not discriminate in the exercise of its powers because it disagrees with the content of protected speech, the First Amendment does not protect obscene material. Miller, 413 U.S. at 23, 93 S.Ct. at 2614.

So, it appears the first amendment will not protect obscene material, but this may be protected under copyright law, but this answer is not completely clear.  The Court continued:

Plaintiff's videos indicate that they are produced in California and plaintiff's affidavits state that they are distributed in New York, among other places.

Based upon review of the videotapes and information contained in plaintiff's application, probable cause exists to believe that the plaintiff is violating 18 U.S.C. § 1466, which makes it a felony to engage in the business of selling or transferring obscene material shipped in interstate commerce.

It further appears that the videos plaintiff seeks to protect are subject to forfeiture under 18 U.S.C. § 1467. See generally Alexander v. United States, 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (affirming six year sentence and forfeiture where defendant was involved in the business of distributing obscene material).

Given the clearly criminal nature of plaintiff's operation, it is self-evident that the Court should not use its equitable power to come to plaintiff's assistance and should invoke the doctrine of unclean hands and leave the parties where it finds them. Dunlop-McCullen v. Local 1-S AFL-CIO-CLC, 149 F.3d 85, 90 (2d Cir.1998). Yet, that which logic would suggest is called into doubt by cases from two circuits that have held that obscenity is not a defense to a claim of copyright violation. See Jartech v. Clancy, 666 F.2d 403 (9th Cir.1982); Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.1979).

In addition, one Circuit Court opinion expresses the view that the Court does not have discretion to deny a copyright holder the extraordinary remedies available under the Copyright Act. Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th Cir.1972).

18 U.S.C. 1466A

(a) In General.—Any person who, in a circumstance described in subsection (d),

knowingly produces, distributes, receives, or possesses with intent to distribute,

a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that—

(1) (A)depicts a minor engaging in sexually explicit conduct;

and

(B) is obscene;

or (2)

(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

and

(B) lacks serious literary, artistic, political, or scientific value; or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

So this is the question, does an adult pornography video lack serious literary, artistic, political or scientific value?  I have seen no cases holding that a Strike 3, Flava, or Malibu Media movie meets this standard, thus, an obscenity defense may not be viable.  Keep in mind, however, in these peer-to-peer file-sharing cases there are usually MULTIPLE VIDEOS at issue.  If one were able to knock out a video or two on obscenity grounds, this could potentially create a real legal issue.  For now, there is no accusation or insinuation that any of their videos violate obscenity laws.

The key issue, to me, is the word "artistic."  This word may mean different things to different people, including a jury.

Contact a California Copyright Infringement Lawyer

We have helped many clients defend cases of alleged infringement including but not limited to cases alleging:

  • Photography or image infringement
  • Software infringement audits and license compliance (ex. Business Software Alliance, BSA, SIIA, Siemens, CNC, Vero, Autodesk compliance, Software Compliance Group) and others.
  • Font infringement
  • Infringement of Strike 3 Holdings adult videos
  • Infringement of boxing matches (ex. Joe Hand Promotions, J&J Sports and G&G Closed Circuit)
  • Jewelry infringement
  • Logo infringement
  • Video file-sharing cases
  • Mobile application infringement
  • Copying text from a website

Call us if you have any questions.  We are able to handle copyright infringement cases nationwide subject to the local rules of admission of the federal courts.  We have been admitted in California (all districts), Arizona, Texas, and New york. 

We can be reached at (877) 276-5084.  For most nonlitigation cases (we have litigated over 150 federal court cases), we are able to charge a low flat rate (ONE TIME FEE). 

We are a leader in the area of copyright infringement law.  In this area, there is no substitute for experience, knowing the case law, negotiation skills, and working relationships built up with opposing counsel over the years.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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