From the article:<p><i>> The strength of a defense based on the non-copyrightability of pornography rests on whether pornography promotes the progress of science and useful arts as prescribed by the Copyright Clause of the U.S. Constitution.</i><p><i>> An argument in favor of refusing copyright protection is the very reason why copyright protection is granted in the first place: it gives incentives for creation.</i><p><i>> Allowing copyright protection on pornographic works, then, would only give more incentive for pornographic creations.</i><p>That's a losing battle right there.<p>First because the Supreme Court already affirmed adult entertainment as encompassed by the first amendment.<p>Second because it is a dangerous precedence to remove legal protections off something based on subjective standards. Today it is for adult entertainment, tomorrow it could very well be (for instance) for political comedy.
There should really be a [2012] in the title.<p>They eventually reached a 'stipulated judgement' that Liuxia Wong had not infringed any copyrights [1] so the case didn't have the chance to remove pornography's copyright protection.<p>[1] <a href="https://dietrolldie.files.wordpress.com/2012/06/stip_judgement_00469ca.pdf" rel="nofollow">https://dietrolldie.files.wordpress.com/2012/06/stip_judgeme...</a>
Even if you could build a case on this argument (which is doubtful; the Supreme Court has ruled that despite the "for limited times" clause, Congress can legislate effectively perpetual copyright if it so desires, so I doubt the "promote science and the useful arts" clause will stop Congress from allowing copyright on whatever), it's wrong on its face. Pornography <i>does</i> promote the progress of science and the useful arts. How many times have we heard it observed that the VCR, and later internet video streaming, wouldn't have had the uptake they did if it weren't for porn? VR is about to undergo the same revolution.
I don't have time to read the whole case (much like the authors of the article I suspect), but as a lawyer that whole claim about "using the doctrine of clean hands to deny copyright" sounds fishy to me. Clean hands is an equitable doctrine based on case law (judge made law based on previous decisions), whereas copyright is statutory. You can't use case law and equity to avoid statutory law, that's one of the basis of our system where the legislature as elected by the people have supremacy over the laws.<p>I suspect what happened was the plaintiff in that case was violating another federal statute preventing the sale of obscene materials in interstate commerce and that's why they couldn't bring their copyright claim, because the were breaking the law and trying to get the court to give them the protection of the law at the same time.
I recall a ruling in Germany that pornography isn't inherently protected by copyright but porn that has some narrative structure around the actual sex scenes being granted protection because of that.<p>So if it's just literally pointing a camera at people having sex, copyright wouldn't apply (though presumably the right to one's own image would still apply?) but if it's previously established that they're a plumber and a housewife overcome by their passions, it's part of a copyrighted work.
This seems pretty silly - the Copyright Clause gives Congress the power to enact a particular kind of legislation and states the broad purpose of such legislation. It doesn't say every single copyrightable work has to 'promote the Progress of Science and useful Arts'. It doesn't say much about what specifically is a copyrightable work at all.
This is as good a time as any to bring along my favourite mathematics professor of all time, Tom Lehrer:<p><a href="https://www.youtube.com/watch?v=iaHDBL7dVgs" rel="nofollow">https://www.youtube.com/watch?v=iaHDBL7dVgs</a><p>His 'Smut' was written more than 50 years ago, but still resonate with the current debate. :)
Hell no - you don't get to decide what I find useful. While I'm not very interested in pornogaphy I have a good few friends who are current or former sex workers, and their work is just as deserving of compensation and legal protection as any other kind of work that admits of performance for an interested audience. I'm far more offended by this proposition than by anything I've ever seen in porn.
A friend developed a cellular automata engine, 20 years ago. He sampled porn for palette mapping. There was Zero correlation of physical shapes. While the visuals were abstract, the color scheme felt warm and inviting. Did the original material help 'promote the Progress of Science and useful Arts'?
Fun fact, perhaps related, perhaps not, according to IP lawyer relatives cartographers had to traditionally add at least some non-factual content to make it not pure fact, which is not copyrightable. So a fully true map is not in their interest. Can someone with better legal knowledge confirm the truthiness of this anecodte?<p>Perhaps, and I am terrified to suggest this, this industry will come up with their own answer to that. Haha.
What about those footprints they embed in a video to prevent re-uploads? Not saying that is a form of copyright... hmm, I should probably read the article.