03 February, 2014

Pornography and Copyright Law

Often overlooked by many as 'artistic', pornography and other adult materials still carry quite the value in today's society. An estimated 3000 dollars is spent every second on pornographic material, netting 13 billion dollars yearly on average. As such there clearly is huge value in the protection of adult materials, yet more often than not the material is dismissed due to its nature as a sexual work. Regardless of some prevailing attitudes towards pornography, I thought it would merit exploration as a protected work under copyright.

United States

Under US law certain works are protected under copyright, which include both motion picture works and photographic works, among which most pornographic materials are produced. The categories do not mention any exceptions for obscene works, and prima facie should include any and all adult materials, provided they do not infringe any other legislation relating to the protection of children for example. Whether pornographic materials were protected under copyright was a question that had not been unequivocally answered until the case of Mitchell Brothers Film Group v Cinema Adult Theater. In the case the Court of Appeal saw that "[c]reating a defense of obscenity [may]... actually frustrate the congressional purpose underlying an all-inclusive copyright statute". In addition to this, the Court saw that "[i]t will discourage creativity... Requiring authors of controversial, unpopular, or new material to go through judicial proceedings to validate the content of their writings is antithetical to the aim of copyrights. If the copyright holder cannot obtain financial protection for his work because of actual or possible judicial objections to the subject matter, the pro-creativity purpose of the copyright laws will be undercut". The position in the aforementioned case has been since affirmed in later cases, clearly showcasing that the judiciary has no intention to exclude 'obscene' materials such as pornography. The Court did not discuss any potential negative impacts that obscene materials could have, and arguably this does not merit much argument, as sex and sexual activities are inherently a part of human culture, and have been for as long as culture has existed. A line has to be drawn when the material crosses over to the territory of illegality, but "normal" pornography should be protected under copyright.

Ann Bartow has argued that Article 1 of the US Constitution could provoke more discussion as to the copyrightability of pornography, as the law's intention is to "...promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries", as one could argue that pornography does not promote the progression of useful arts. This writer would see that adult materials could just as well promote the useful arts, as sexuality and sex represent a side of humanity which is essential and necessary, both as arguably a form of art, and as a form of entertainment, bar the exceptions of illegal materials in such a category.

United Kingdom

In the UK the Copyright, Designs and Patents Act 1988 functions in a similar fashion to its US counterpart, although the precedent is still unclear as to the legislation's position in relation to pornography. In the case of Glyn v Weston Feature Film Company Justice Young, obiter, saw that potentially obscene works could be protected, such as the one in question in the case; however refused to do so as "[t]he episode described in the plaintiff's novel, and which she alleges has been pirated by the defendants, is in my opinion grossly immoral in its essence, in its treatment, and in its tendency". Arguably societal norms have changed immensely since the decision in Glyn, and immorality through sexual acts is not seen as wholly good or evil, especially in a more entertainment based medium such as pornography.

The Obscene Publications Act 1959 does provide some offenses relating to 'obscene' materials; however its potential impact on pornographic material is questionable. The CPS has provided some guidelines in terms of such materials, and clearly indicates it would only apply to "extreme pornography" or material containing children.


Similar views have been shown in other common law jurisdictions, and it can be argued that pornography is protected under copyright, bar some exceptions mentioned above. As the morals of society change, and the consumption of different forms of media evolve as well, whether adult materials will be fully accepted will remain to be seen. Some measures have been initiated in the UK to block pornographic materials, and the outcry goes to show just how important this topic is in the public mindset. Morality should not be wholly dictated by the legislature or the judiciary, and those decision should reflect society as a whole, not merely the values of a small part. Pornography and the law will keep on finding a balance, and it can be said the medium is here to stay, and protected under copyright.

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