We previously posted about Massachusetts District Court Judge Young’s order allowing copyright infringement plaintiff Liberty Media to discover (and thereby potentially reveal to the public!) the identity of 38 “John Doe” downloaders of “Amateur College Men Down on the Farm,” a pornographic film. But perhaps the most far-reaching implication of Judge Young’s opinion was a footnote. Judge Young noted that copyright protection was effectively unavailable anywhere for “obscene” material until the 1970s, and that it wasn’t entirely clear “whether pornography is in fact entitled to protection against copyright infringement” at all in the First Circuit.
Wow. Could it really be the case that a $97 billion dollar-a-year industry is essentially unprotected from copyright infringement by competitors, pirates or at least by 38 soon-to-be-no-longer “John Does” in Massachusetts? Or put another way, is there an obscenity defense to copyright infringement?
To get to the bottom of this, we travel 150 years back in time to the premiere of Broadway’s very first musical, The Black Crook, the story of an evil German Count who employs black magic to tear a village girl from her starving-artist boyfriend, only to be foiled by the Fairy Queen of the Golden Realm. The play features songs such as “You Naughty Naughty Men” and “Dare I Tell,” and is apparently riddled with serendipitous opportunities for the removal of clothing by village girls and fairy queens alike. The Black Crook opened on Broadway in 1866 and ran for a record-breaking 474 performances, followed by a national tour which ended up at one of San Francisco’s two major theaters, Thomas Maguire’s Opera House.
You may be asking, “What would I do if I owned San Francisco’s other major theater?” Here is a suggestion: Open a play opposite The Black Crook called The Black Rook, which features the identical lines, songs and, of course, opportunities for disrobing. That is exactly what the Metropolitan Theater did. Clear-cut copyright infringement, right?
Nope. Unfortunately for The Black Crook¸ Federal Judge Matthew Deady was not a fan. In Martinetti v. Maguire, 16 F. Cas. 920 (C.C. Cal 1867), Judge Deady recognized that the elements of copyright infringement were essentially met, but nevertheless refused to extend protection to the play. Deady criticized the “scant and meaningless dialogue” as a mere excuse for “the exhibition of women in novel dress or no dress.” In Judge Deady’s view, the “exhibition of women ‘lying about loose’ or otherwise, is not a dramatic composition, and, therefore,” no-doubt to the delight of the Metropolitan Theater, “not entitled to the protection of the copyright act.” Alternatively, Judge Deady held that since he had no use for the play, extending copyright protection would not “promote the progress of science and useful arts.”
The tables finally turned about a hundred years later in Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F. 2d 852 (5th Cir. 1979), a case involving the public exhibition of pirated prints of Behind the Green Door. The pirates followed the example of the Metropolitan Theater and asserted “obscenity” as an affirmative defense. But this time it didn’t work. The Fifth Circuit pointed out that while the Copyright Act is silent as to the issue of obscenity, the best way to promote the “useful arts” was to protect all works “regardless of subject matter or content, trusting to the public taste to reward creators of useful works and to deny creators of useless works any reward.” This was particularly important when it came to works labeled pornographic, because society’s view of morality was continually changing, rendering obscenity an unreliable barometer for copyright protection.
While a few courts have followed the Fifth Circuit’s lead, elsewhere the case law on this issue is surprisingly scant or non-existent. But that doesn’t mean we can assume that the modern view has prevailed. As recently as 1998, a Judge in the Southern District of New York refused to issue injunctive relief to a copyright plaintiff after determining that the materials in question were “hard core pornography bereft of any plot and with very little dialogue.” So, is there an obscenity defense to copyright infringement in the First Circuit today? Probably not. But Judge Young has given 38 “John Does” the opportunity to give it the old “amateur college” try.