Is Pornography Copyrightable? (does not promote the progress of science and the useful arts)

[The Straight Story]

Is Pornography Copyrightable?


SAN FRANCISCO (CN) - A woman claims a pornographic filmmaker tried to coerce her into settling a bogus copyright infringement case - and that even if she did download its porn, which she did not, pornography is not copyrightable, because it is not a science or a useful art.
Liuxia Wong sued Hard Drive Productions in Federal Court, after refusing to settle its demand for $3,400.
...


Wong says that even if she had downloaded "Amateur Allure Jen," there was no copyright infringement because obscene materials cannot be copyrighted.

"Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: '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,'" Wong says in her original complaint.

"Thus, copyright is authorized only for works which promote the progress of science and useful arts. ...

"Early circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright.

http://www.courthousenews.com/2012/02/03/43613.htm

[VWolf]

1. I find pornography to be extremely "useful" n/t

[Drale]

2. How do you define art?

People claim a picture of a giant soup can is art but I don't see it.

[cthulu2016]

3. I almost hate grabbing fruit hanging this low, but...

1) The works in question are not "obscene." That determination can only be made by a jury on a case by case bais. No pornography is categorically obscene, as a matter of law. (By law, anything involving minors is illegal whether obscene or not... that's how very stringent a term "obscene" is. Even some clearly illegal child pornography is not legally obscene.)

2) The arts and sciences clause explains the motive for the existence of copyright law. It has no meaning relative to individual works covered by the copyright laws established under it.

3) And even if one wanted to play her idiotic game, the constitution is best read as saying that copyright laws should, in the entirety of their effect, promote science and the useful arts, which is best accomplished by applying copyright law to all works. (There was a time, ages ago, when the copyright office had to affirmatively grant copyright upon receipt and examination of a work, and at that time this crackpot's argument would have been valid. But that is not the state of the law. In fact, this next word I am about to type is copyrighted as I type it.)

4) And more to the point what promotes science in the fucking copyright clause is the word "limited"... the promotion of science and art arises from having copyrights EXPIRE at some point. That's the fricking point. So learn to read or hire a lawyer who can read. The woman's argument is actually an argument that copyrights on porn should be unlimited since their expiration would not advance art and science.

[TheWraith]

4. How does one define "useful" arts?

Is a painting "useful"? How about a cartoon character?

[eShirl]

5. sex isn't a useful art?

[Lionessa]

6. Au contraire! Seems to me the only more used and therefore useful videos are

How-To videos. I am pretty certain that porn more than any other than how-tos have a definite level of being a catalyst to activity, even if it's only one hand. Other videos are simply watched.

[NYC Liberal]

7. I say if the "limited times" restriction can mean "any specifically defined amount of time"

(100 years, 1000 years, as long as it's "specific&quot , then porn can be considered a "useful art."

[RC]

8. Define pornography.

It is in the eye of the beholder.
Many years ago the local cable company mailed out cable guides. One issue had a picture of Madonna on the cover. Several people wanted to recall all those guides and destroy them because the head shot of Madonna on the cover was pornographic. They also wanted to have the front cover torn off the counter copies. Save the children and all that.

Why are pictures of skin pornographic, even when the same person is seen in the same swim wear at a public swimming place? Sports Illustrated anyone? We all have skin. Where is the line? Is there really a line? Who is qualified to place that nebulous line?

[HopeHoops]

9. Easy - Pornography (n) something most people like but few will admit to liking.

[craigmatic]

10. Under that definition neither do most blockbuster movies but that didn't stop them from shutting

down megaupload. Most porn ends the same anyway. Who doesn't watch streaming movies/porn from a clip site now a days?

[melm00se]

11. there is a specific test

for determining if something is "obscene" and it was set during the Miller v California case heard before the Supreme Court.

The Court held that for a work to be "obscene" the following 3 standards must be met:

- Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

strike out on all 3 and the work can be deemed obscene.

[RC]

16. Which average person? What is an average person? You? Me?

I think I am above average, does that mean my opinion counts for more than yours does?
Whose "contemporary community standards"? Small town, large city, located in the East, West, North, South... ??
"patently offensive way", depends on how thick or thin your skin is. And sometimes whether you are getting any.
"Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value". That includes most posts on DU. So what? The Lounge is obscene?
"sexual conduct" is the only concrete concept here. The rest are all subjective.
We can engage in sexual conduct, even in naked groups, with less outrage than looking at pictures or movie of it. Why is that?

[cthulu2016]

19. The Miller court was trying to legalize porn

but did not have the guts to do so, so they created a test that no work could actually fail if the test was taken seriously.

The thing is, not content standard can pass constitutional muster. All "no vulvas" or "no erections" or "no anal" laws are unconstitutionally broad. So it has to be case-by-case, which is just Russian Roulette for artists.

The following year a Georgia jury found the Mike Nichols film CARNAL KNOWLEDGE (a best picture nominee) obscene, sentencing a thatre owner to jail.

So the court, rather than fixing Miller by eliminating the facially unconstitutional concept of obscenity as an exception to the 1st amendment tried to clean up their mess by adding "lascivious display of the genitals" and/or "actual" sex as a bare minimum for obscenity.

Miller remains the worst supreme court decision since Dred Scot, IMO.

[melm00se]

21. Korematsu v. United States

and Buck vs Bell make the Miller decision look like sound legal judgements

[melm00se]

20. those are excellent points

and commonly raised points by the defense in obscenity trials.

but until Miller is overturned, it's the measurement used.

[cthulu2016]

17. Only a jury can make the determination

No work is obscene until a jury says it is, and then the work is STILL not obscene because a future jury is free to say it isn't obscene in a different case.

And a work can be judged not obscene a thousand times by a thousand juries and then be found obscene by the 1001st. (No double jeopardy for works since they are not charged with a crime and cannot go to magazine-jail.)

So there is no such thing as an obscene work. Like really... no such thing. If the work is the same and it's obsenity changes from case to case, day to day, then we are not talking about a real quality of the work.

[Zalatix]

12. Hmmmmmmmmm......... I cannot really decide on that one.

What qualifies as porn?

Movies like Angel Heart could feasibly straddle the line.

[msongs]

13. seems like if she "didn't download it" she has no standing in the issue of copyright anyway. nt

[bullwinkle428]

14. As opposed to the latest Adam Sandler movie?

[msanthrope]

15. Damn you. You beat me to it.. nt

[XemaSab]

18. I would argue that it should be protected by copyright

just so that the "actors" and other people involved with the production get paid.

Yeah, there's loads of free porn out there, but for people who are still making a living doing porn, hey, that's their livelihood. If someone else can copy and resell the, er, "fruits" of their "labor," then that's devaluing their work as certainly as if someone copies and resells "Twilight."

[FarCenter]

22. To be copyrightable, works must be original and creative

Arguably, lots of porn is neither.