Giroux Amburn, P.C.

Does Copyright Protect Pornography?

Did copyright law intend to protect obscene works?

By Lina Asmar, Attorney | Published in Michigan Lawyers Weekly | September 30, 2019

Hundreds of copyright infringement lawsuits are being filed across the country by pornographic movie production companies Malibu Media and Strike 3 Holdings, in essence, creating an additional profit center for these entities. They allege illicit downloading of copyrighted pornographic movies through BitTorrent, a peer-to-peer file sharing service.  Whether these cases are viable depends in part on whether the pornographic movies are obscene. Some courts have held that obscene material is not entitled to copyright protection. Since it appears that none of the production companies’ lawsuits have gone to trial on this issue, it remains an open question whether copyright protection extends to pornographic movies deemed obscene by the trier of fact.   

How the Production Companies Build Their Suit.

The production companies begin the legal process by first identifying an IP address tied to the illicit downloading, and then sue a “John Doe” as the IP address subscriber.  Next, they request and frequently receive court permission to serve a third-party subpoena on the internet service provider (ISP). In the subpoena, they compel the ISP to identify the subscriber by name and address. The production companies then pressure the identified subscriber into paying a great deal of money to settle the claim or risk costly litigation and the public embarrassment of being named in a lawsuit alleging illegal downloading of pornographic movies.

If copyright infringement is found to exist, the production companies are potentially entitled to statutory damages of between $750 and $30,000 per infringement.  It is common for the John Doe to download 30 or more pornographic movies. The potential damages calculation is staggering and outside of any realistic payment potential by the average John Doe infringer.  The cost to subscribe to one of the production company’s websites such as Tushy.com or Vixen.com and download the movies is minuscule compared to the potential damages for illegal downloads.  

Copyright Protects Original Works of Authorship.

The above practices by the production companies raise the issue of whether this is an appropriate use of copyright law. The answer may lie in whether the production companies’ pornographic movies are deemed obscene because arguably, copyright protection does not extend to obscene works.

Copyright is derived from the United States Constitution Article 1, Section 8, which authorizes Congress to give authors rights in their original expression of ideas to promote the progress of science and useful arts.  In the Copyright Act, Congress provided copyright protection for an author’s original works of authorship that are fixed in any tangible medium of expression. Works of authorship include motion pictures, pictorial works, and other audiovisual works in which most pornographic materials are identified.  

The First Amendment Does Not Protect Obscenity.

Congress did not make clear if it intended to extend protection to every kind of work.  Copyright law does not identify specific content that is ineligible for copyright protection.  As a result, copyright law protects pornography because content-based restrictions on copyright eligibility could abridge the freedom of speech of the First Amendment.  That said, obscene works do not receive First Amendment protection.  In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court found that the First Amendment’s freedom of speech does not apply to obscenity.  Specifically, under Miller, obscenity is found when the average person, using contemporary community standards, would find that a work appeals to the prurient interests, depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and lacks serious literary, artistic, political, or scientific value. Thus, the First Amendment protects pornography – if it is not obscene.

Copyright law incentivizes the production of pornography and enables pornographers to employ court resources to prevent and benefit from infringing uses; however, some courts have found obscene pornographic works to not be copyrightable. See Devil Films, Inc. v. Nectar Video, 29 F.Supp.2d 174, 177 (S.D.N.Y.1998) (Once a court has determined that copyrighted material is obscene, there seems no reason to require it to expend its resources on behalf of a plaintiff who it could as readily be tried for a violation of the federal criminal law). See also Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F.Supp.2d 444, 447 n.2 (D. Mass. 2011) (If the Works at issue are determined to be obscene, they are not copyrightable).  Other courts have reached a different conclusion.  

Should Copyright Protect Content That is Deemed Obscene? 

Despite these decisions, copyright owners of pornography, including potentially obscene pornography, are aggressively enforcing their copyrights since there is still no controlling authority on whether obscene pornographic works are entitled to copyright protection. Is this an intended use of copyright law as tracing back to the constitutional imperative of promoting “the progress of science and useful arts?”  Until we have an answer, we can expect companies like Malibu Media and Strike 3 Holdings to continue using the courts to facilitate a burgeoning business – extracting settlements from John Doe downloaders.  

If You Need Help with a Copyright, Patent, Trademark, or other Intellectual Property issue. Contact the IP Attorneys of Giroux Amburn. 248-531-8665

About the Author

Lina Asmar is an associate of Giroux Amburn, PC where she concentrates her practice on IP matters involving patent, copyright, trademark and trade secret protection, infringement, enforcement and litigation.

She earned a B.S. in Biological Science from Wayne State and her Juris Doctorate from Arizona Summit Law School. She is a registered patent attorney. Asmar is a member of the SBM; OCBA and MIPLA.

Lina is passionate about working with clients to protect, defend and prosecute their intellectual property including patents, trademarks, trade rights, and copyrights. 

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