Or, to put it another way, is there an obscenity defense to copyright infringement? Surprisingly, this may be an open question. This interesting article by David Kluft of Foley Hoag traces the protection available for obscene works. Early cases held that there was no protection for obscenity and it wasn’t until 1979 that the 5th Circuit held in Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F. 2d 852 (5th Cir. 1979) that copyright protection did not hinge upon the “morality” of the content because society’s views of what is “moral” changes over time. While a few courts have followed the 5th Circuit’s lead, as recently as 1998, a New York district court refused to enjoin an alleged infringer, stating that the subject matter was “hard core pornography bereft of any plot and with very little dialogue.” So, a plaintiff may have an uphill battle obtaining copyright protection for pornographic subject matter.
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