This past year, Liberty Media Holdings, LLC, filed a copyright infringement lawsuit against thirty-eight unknown defendants. The defendants, who were identified only by their IP addresses due to the nature of the alleged infringement, were charged with illegally downloading and sharing it’s copyrighted motion picture, “Corbin Fisher Amateur College Men Down on the Farm.” In case it wasn’t painstaking obvious from the get go, Liberty Media is a distributor of “lawful, albeit hardcore, pornography, and the motion picture is itself hardcore pornography” (Kluft).
What makes this particular case so unique, is the long and troubled history shared between both pornography and copyright. Interestingly enough, until the mid 1970’s, pornography wasn’t even eligible for copyright right protection, and to this day, it’s entitlement to the aforementioned protection is still disputed in the First Circuit courts. But before I get too far ahead, a bit of history…
In 1866, The Black Crook became the first ever musical to premiere on Broadway. And boy did it have it all: ample opportnuties for the removal of already scant amounts of clothing, catchy musical numbers, and more. Not only was The Black Crook inconceivably successful, running a record-breaking 474 performances, but it’s surprising success spawned the creation of a similar musical, cleverly entitled The Black Rook. The Black Rook was nearly identical to The Black Crook in almost every conceivable way, with the only apparent difference being the opera house responsible for hosting the Rook (The Metropolitan Theater). This would become one of the earliest cases of would-be copyright infringement (Martinetti v. Maguire). The ruling judge, Judge Matthew Deady, while recognizing that all the elements of copyright infringement had been met, refused to extend protection to the Crook. The use of “scant and meaningless dialogue” as a mere excuse for “the exhibition of women in novel dress or no dress,” in Judge Deady’s opinion, would not meet the qualifications of a dramatic composition (Kluft). Moreover, Deady thought that extending copyright protection to The Black Crook would not “promote the progress of science and the useful arts,” and therefore, should “not [be] entitled to the protection of the copyright act” (Kluft).
Only with the Fifth Circuit’s 1979 verdict in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55, 858 (5th Cir. 1979), was the obscenity exception finally lifted. According to the Fifth Circuit, although 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’” (Kluft). Due in part to these continually shifting societal views on morality, it became apparent that obscenity was no longer a reliable guage for copyright protection.
Kluft, David. “You Naughty, Naughty Men: Is There An Obscenity Defense to Copyright Infringement?” Web log post. Trademark and Copyright Law Blog. Foley Hoag LLP, 8 Nov. 2011. Web. 13 Feb. 2012.