“Are porn films copyrightable and hence covered by copyright protection?” a friend asked me yesterday. His concern was that “immoral” films often face statutory limitations with respect to their distribution.
“That is a very good question”, I thought and gave him a short answer.
Basically, my answer relied on that pornographic films are works in the first place, more precisely – cinematographic works and that as such they will very likely qualify for copyright protection. I further opined that any limitations to their distribution should not prejudice their character as works of copyright and hence their protection under copyright law.
In this blog post I will give a more profound answer thereby covering the Berne Convention as well as the national laws of three countries. I chose those countries because they not only have a long-established and prominent copyright protection, but they have also a well-developed entertainment industry and, as a part thereof, production and consumption of pornographic films.
Good, let me will start with the
Article 2 of this treaty, also referred to as the mother of copyright, reads as follows
(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.
Convention’s Article 2 bis leaves it to the members states to decide whether certain categories of works are to be protected, but limits the categories only to (i) speeches, (ii) lectures and addresses and (iii) collections of (i) and (ii).
Anyway, the convention remains silent on the question whether moral deliberations should prevent a work from copyright protection.
The United Kingdom (UK) ratified the Berne Convention with effect from 5 December 1887. Even though films have since then represented a single branch of copyright works, courts on the British Islands may nevertheless refuse to recognise copyright protection for policy reason such as immorality.
In a somewhat older case from 1916 Younger J ruled that there was no copyright in a film because it constituted a “sensual adulterous intrigue”. The House of Lords has cited this ruling with approval as far back as 1990, though not necessarily in conjunction with pornography.
In the very recent case of Media C.A.T. that involving the copyright infringement in pornographic films, however, Birss QC did not question the copyright character of the pornographic works in suit.
What remains to say is that there is still some doubt as to the exact effect of immorality under UK law. It is unclear whether immoral works lack copyright at all, or that equity will not enforce the copyright.
Although the United States acceded to the Berne Convention as late as 1989, their federal copyright law has always protected motion pictures and other audiovisual works. However, the same has not always been true with respect to pornographic works.
According to the PrawfsBlawg, “obscene” (=hardcore) pornography could not qualify for copyright protection until 1979. It was the Court of Appeals for the 5th Circuit which declared obscene films protected by copyright law. This ruling led to the FBI copyright warnings now found at the start of videotapes or other media carrying a film.
With respect to the copyrightability of films, the German Copyright Act more or less repeats Article 2 of the Berne Convention. The Copyright Act likewise remains silent on (im)morality driven exclusions of copyright.
However, Article 184 of the German Penal Code reads as follows:
1) Whosoever with regard to pornographic written materials (section 11 (3))
- offers, gives or makes them accessible to a person under eighteen years of age;
- displays, presents or otherwise makes them accessible at a place accessible to persons under eighteen years of age, or which can be viewed by them;
- offers or gives them to another in retail trade outside the business premises, in kiosks or other sales areas which the customer usually does not enter, through a mail-order business or in commercial lending libraries or reading circles;
3a. offers or gives them to another by means of commercial rental or comparable commercial supply for use, except for shops which are not accessible to persons under eighteen years of age and which cannot be viewed by them;
- undertakes to import them by means of a mail-order business;
- publicly offers, announces, or commends them at a place accessible to persons under eighteen years of age or which can be viewed by them, or through dissemination of written materials outside business transactions through the usual trade outlets;
- allows another to obtain them without having been requested to do so;
- shows them at a public film showing for an entry fee intended entirely or predominantly for this showing;
- produces, obtains, supplies, stocks, or undertakes to import them in order to use them or copies made from them within the meaning of Nos 1 to 7 above or to facilitate such use by another; or
- undertakes to export them in order to disseminate them or copies made from them abroad in violation of foreign penal provisions or to make them publicly accessible or to facilitate such use,
shall be liable to imprisonment of not more than one year or a fine.
What does it mean? It means that porn films are copyrightable under German law, but their distribution, basically to persons under 18, is criminalised.
It appears that pornographic films are capable of attracting copyright protection under the relevant jurisdictions of the United Kingdom, the United States and Germany.
While the UK and the US have interlinked copyrightability with public morality and their courts have certain powers to determine whether copyright should subsist in obscene films, Germany follows a clear-cut approach stating that even pornographic films are copyrightable, albeit their distribution might be subject to morality or other public policy driven limitations.
Want to tell how your jurisdiction deals with the copyrightability and/or distribution of pornographic works?
Simply use the comment section below.