Sex exceptionalism in intellectual property.

AuthorRothman, Jennifer E.
PositionII. Copyright's Purported Move Toward Indifference About Sex and Morality C. Lingering Sex Exceptionalism and Sex Normativity in Copyright through Conclusion, with footnotes, p. 143-170
  1. Lingering Sex Exceptionalism and Sex Normativity in Copyright

    The stability of the existing law is unclear since most federal circuit courts have not made holdings on the question of whether pornographic (or other "immoral") works merit copyright protection and a number of courts have expressly suggested that such an exception to copyright may persist. Moreover, legislators and scholars have made repeated calls over the years to use copyright law to discourage pornography and obscenity. A number of copyright doctrines, such as originality and fair use, also can disfavor works with sexually explicit content. I will look in more detail at each of these pockets of lingering differential treatment of sex or at least of disfavored forms of sex.

    1. Continued limits on protectability

      Although two federal circuits have concluded that there is no longer a bar to copyright protection for obscene, pornographic or immoral works, some courts continue to suggest that immoral and obscene works sit outside copyright's purview, (125) and most federal circuits have not considered the question. This leaves open the door to restrict copyright for works with sexual content. Such an event is not too far-fetched given both recent and longstanding advocacy urging the elimination of copyright protection for pornographic works, (126) and an increasing interest in looking back to the common law for contemporary guidance. (127)

      Even absent an explicit exclusion for immoral, obscene, or pornographic works, existing doctrines limit the copyrightability of sexually explicit works and provide a narrow scope of copyright protection to such works. These doctrines do not single out sexual content, but in combination lead to thin copyright protection for works that are primarily composed of sexual activities. Originality, for example, is a requirement for copyrightability; however, it is challenging to establish the originality of sex acts and courts can be dismissive of the inventiveness of particular depictions of sex.

      Other copyright doctrines such as the merger doctrine and scenes a faire further limit the scope of protection afforded to sexually explicit works. (128) The merger doctrine precludes copyright protection when there is only one (or a very few ways) to express a particular idea--in such instances the expression merges with the relevant idea; because ideas are not copyrightable, neither is the merged expression. (129) One well-known case involving merger held that the idea of a jewel-encrusted bee pin could only be expressed in one way and therefore the defendant's "copy" did not use any protectable elements. (130) In the context of pornography, the expression of fellatio or a "cum shot" might similarly be considered to merge with those "ideas," such that no one could enforce copyright over a particular sexual act.

      Scenes a faire are common elements that necessarily flow from the choice of a particular setting or genre. If plot devices or types of characters, for instance, are considered stock, generic features in a genre, then they will be nonprotectable scenes a faire. For example, in a work about a superhero, scenes that depict the superhero performing "feats of miraculous strength," wearing a "tight-fitting acrobatic costume[]," "fight[ing] wealthy megalomaniacal villains," or propelling himself into flight are all unprotectable scenes a faire. (131) In the context of pornography, a possible example of a scene a faire is the common trope of a delivery person arriving with a pizza box and staying on for a sexual encounter.

      Putting together the requirement of originality, and the doctrines of scenes a faire and merger, we rarely see courts finding copyright infringement in the context of pornographic works outside of exact copying. Such limits may well be appropriate but unquestionably mean that works that are primarily composed of sexually explicit content are likely to have very narrow copyright protection. Thus, calls to deny such works protection seem both unnecessary and primarily focused on conveying an anti-sex message.

    2. Fair use and the hidden doctrine of copyright dilution

      Sex exceptionalism most often percolates up in today's copyright law when courts analyze the fair use defense to copyright infringement. (132) The fair use provision of the Copyright Act specifically provides an exception to copyright infringement when works are used for certain "purposes such as criticism, comment, news reporting, teaching ... scholarship, or research." (133) These enumerated examples in the preamble to the fair use section are not exhaustive but provide preferred zones of uses. When evaluating pornographic works, courts often dismiss the possibility that pornography could fall into any of these categories. Works that incorporate others' copyrighted works into something with sexual content therefore have often been held unfair.

      Until recently, courts have dismissed the possibility that sexually explicit works could have any communicative impact other than a sexual one and have dismissed the possibility that sexual content itself can carry important social commentary. (134) Yet, even pornography that ostensibly is targeted only at sexual arousal (a value that itself should merit greater credit) can carry meaningful messages. For example, gay porn has been described by some in the community as liberating, affirming, educational, and in service to the disruption of dominant narratives of sexuality that presume heterosexuality. (135)

      Not only have courts dismissed the potential of sex to provide important commentary, but as part of assessing fair use, courts also have made overall assessments of the worthiness of a particular use. The Ninth Circuit, for example, has treated the fair use analysis as one that interrogates the "propriety" of the use. (136) Such an evaluation could lead to a conclusion that uses judged immoral or obscene would not qualify for fair use because they would be deemed improper. (137) Even if such uses are acceptable, the law often places no value (or a negative value) on sex. Therefore, when the worth of the use is balanced against the interests of copyright holders, sex (and the defendants) often lose.

      Even when courts faithfully apply the fair use factors set forth in the statute, rather than make broader judgments about the worthiness of a given use, the factors themselves provide great judicial latitude to determine what qualifies as fair. The four non-exclusive fair use factors are: (1) the purpose and character of the use (including whether it is a commercial or nonprofit use); (2) the nature of the original copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. (138) The first and fourth factors are usually the most influential, and in the context of sexual content often weigh heavily against fair use.

      The first factor--the purpose and character of the use--provides great latitude for courts to disapprove of the type of use made of the work. As discussed, when pornographic works are at issue, courts often discount the worthiness of the use. In addition, the first factor calls for an evaluation of whether a use is commercial. Commerciality is not determinative of fair use but it does weigh against it. Pornographic works and other sexually explicit works are often sold for profit. They accordingly are almost uniformly considered commercial in nature.

      Courts also consider in the first factor whether a use is a "transformative" one. (139) In a broad sense, transformative uses are those that recast, alter, or comment on the original. What qualifies as transformative in practice is more confounding. (140) There is universal agreement that parodies are transformative, but less agreement about what else counts. (141) Because courts have sometimes dismissed the ability of sexually explicit content to comment on the original work or constitute a parody, such uses have until recently been less likely to be considered transformative. (142) Some pornographic works, however, may be particularly transformative and important both personally and culturally. In the context of "transgressive" pornography--such as gay porn--this is particularly true because the works comment on and disrupt the standard narratives about sex.

      The fourth fair use factor--the effect of the use on the copyrighted work's market or the copyrighted work's value--has also been wielded against defendants who have used others' works in a sexual context. Harm to the plaintiffs markets weighs heavily against a finding of fair use. Because some courts have concluded that the association of a copyrighted work with a sexually explicit or pornographic use will lead consumers to think less favorably of the original work, such uses sometimes have been treated as having a negative market effect on the underlying work (and its derivatives). (143) This analysis is akin to trademark dilution, which protects the strength of marks from being whittled down either by blurring (the creation of multiple associations in the minds of consumers) or by tarnishment (the creation of negative associations with the mark). (144)

      Copyright law does not have an explicit doctrine of dilution, but we see something similar to dilution permeating fair use analysis, particularly in cases involving sex. A couple of scholars have recently noticed (and criticized) several forms of such "copyright dilution." (145) Copyright dilution views uses that potentially "tarnish" the image of the original less favorably. As in the context of trademark dilution, uses in the context of sex are often treated as presumptively tarnishing. (146)

      A few specific examples demonstrate how these fair use factors have been interpreted against defendants who use works in sexual contexts. In MCA, Inc. v. Wilson, the Second Circuit rejected a fair use defense for a song titled the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT