Copyright Law and Pornography
56 Pages Posted: 11 Dec 2012
Date Written: November 1, 2012
The government can and should stop providing financial incentives in the form of copyright protection for the production and distribution of pornographic works that cause direct harms, such as child pornography, revenge pornography, crush pornography and filmed sexual abuse. The Article proceeds in five parts. Part I provides an overview of the relationship of copyright law to pornography. Copyright law, viewed in a certain light, plays a structural role in the commoditization of sex and sexual images. In most jurisdictions in the United States, buying and selling sex is illegal, but when sex-for-hire is fixed in a tangible medium of expression, it becomes an act of free speech protected by the First Amendment. That tangible medium also gains protection under copyright law. Pornographers use copyright law to facilitate profitable commercial exploitation of their works.
Against this background, Part II explores the ways in which copyright law in general is not content neutral. Indeed, in order to obtain a protectable copyright, one must demonstrate the existence of 'original' content. Once a copyright is secured, copyright law constructs operate to suppress (by labeling as 'infringing,' and thus illegal) any content that is substantially similar to or derivative of the copyrighted work. From an analytic perspective that suppression operates as a form of content-based, government-sponsored censorship in the broadest sense of the word. To be sure, copyright law allows for 'fair use' as a right or privilege, or as an affirmative defense to an allegation of copyright infringement. In this way, copyright law includes a mechanism that seeks to soften the suppressive aspect of copyright enforcement. Whether an unauthorized use is 'fair' is a legal determination that is, by definition, not content neutral (i.e., it requires substantive consideration of the allegedly offending work). Thus robust copyright protection for any book, image, film, or other copyrightable work requires (at least) two content-specific inquiries by the government: first as to the originality of the initial work, and second as to any fair use by any allegedly offending work.
Part III considers the relationship between pornography and copyright law. Numerous legal scholars have offered critiques and defenses of pornography that are sophisticated and sustained. One of the most well-known critiques of pornography takes a harms-based approach. It considers the potential harm to actual human beings during the production, distribution, or consumption of pornography. This part of the Article applies this harms-based framework in the copyright context and considers how labeling such works non-progressive or non-useful would put them beyond the purview of the Intellectual Property Clause of the U.S. Constitution. Types of pornography that would lose copyright protection under this framework include child pornography, crush pornography, revenge pornography, and pornography in which the performers are physically abused or endangered.
Part IV argues that the government’s withholding of copyright protection from this narrowly defined band of pornographic works will reduce the incentives for its creation and distribution. Thus copyright law could become a powerful tool in the hands of pornography’s opponents. Part V argues that there is, in fact, a clear precedent for amending the Copyright Act to deny protection to 'non-progressive' and 'non-useful' pornographic works. In the trademark context, the Lanham Act prohibits the federal registration of 'scandalous' or 'immoral' marks. Such content-specific restriction has been found to be constitutionally permissible. Although that prohibition is enforced inconsistently, it nevertheless suggests the contours of legitimate, content-based denial of formal governmental protection for certain intellectual property.
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