Abstract

http://ssrn.com/abstract=2302619
 


 



Evil Angel Eulogy: Reflections on the Passing of the Obscenity Defense in Copyright


James R. Alexander


University of Pittsburgh at Johnstown

December 20, 2012

Journal of Intellectual Property Law, Vol. 20, No. 2, 2013, 209-314

Abstract:     
This article traces the historical development of the Clean Hands Doctrine (CHD), and its ancillary accepted affirmative (obscenity) defense in copyright infringement, and its residual application to pornographic works. As an equitable doctrine, the CHD was an entirely reasonable judicial response to the earliest statutory provision of copyright protection in the early 18th century in England as applied to different forms of literary property and in particular those suspected of having seditious, blasphemous and immoral tendencies. With no statutory guidance regarding substantive (or content) restrictions on extending copyright protection to literary property and generally reticent to rule on a completely discretionary basis, the Chancery court relied on established equitable maxims or principles as ratio for individual rulings, in the process developing an ersatz structure of procedural precedent. In the process, it sequestered content as a procedural issue deferred to law prior to any equitable consideration, leaving unresolved the more substantive issue of whether all works of literary property were eligible for copyright protection, or differentially when and in what forms could literary works be accorded protection.

The CHD, and more specifically the obscenity defense, was adopted wholesale and with little consideration into American jurisprudence in the 19th century, on occasion nuanced by historical debate over the meaning and intent of the Copyright Clause. Subsequent American statutory delineations for copyright protection, after a few nascent efforts to restrict eligibility to only those works that were original and informative, retreated to a marked absence of discussion of content, throwing judicial consideration of copyright protection almost entirely onto procedural issues, such as registration. By the latter part of the century, courts began to sporadically differentiate between the substantive and procedural elements of the CHD, the former spawning a transforming debate over doctrinal acceptance of the 1868 Hicklin test of obscene tendency and the latter focusing more narrowly the discretionary authority to the Register of Copyrights to reject works of certain content. I argue that this differentiation, and the subsequent obfuscation of obscenity standards resulting from a range of cases leading to and built upon Roth v. U.S. (1957), inevitably led to the appellate ruling in Mitchell Brothers v. Cinema Adult Theater (1979), now generally considered accepted doctrine, that the CHD does not support a substantive exclusion of selected content from copyright protection.

Number of Pages in PDF File: 106

Keywords: copyright, obscenity, libel, clean hands, literary property, legal history, cinema

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Date posted: July 30, 2013 ; Last revised: August 22, 2013

Suggested Citation

Alexander, James R., Evil Angel Eulogy: Reflections on the Passing of the Obscenity Defense in Copyright (December 20, 2012). Journal of Intellectual Property Law, Vol. 20, No. 2, 2013, 209-314. Available at SSRN: http://ssrn.com/abstract=2302619

Contact Information

James R. Alexander (Contact Author)
University of Pittsburgh at Johnstown ( email )
Johnstown, PA 15904
United States
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