You Naughty, Naughty Men: Is There An Obscenity Defense to Copyright Infringement?

We previously posted about Massachusetts District Court Judge Young's order allowing copyright infringement plaintiff Liberty Media to discover (and thereby potentially reveal to the public!) the identity of 38 "John Doe" downloaders of "Amateur College Men Down on the Farm," a pornographic film. But perhaps the most far-reaching implication of Judge Young's opinion was a footnote. Judge Young noted that copyright protection was effectively unavailable anywhere for "obscene" material until the 1970s, and that it wasn't entirely clear "whether pornography is in fact entitled to protection against copyright infringement" at all in the First Circuit.

Wow. Could it really be the case that a $97 billion dollar-a-year industry is essentially unprotected from copyright infringement by competitors, pirates or at least by 38 soon-to-be-no-longer "John Does" in Massachusetts? Or put another way, is there an obscenity defense to copyright infringement?

To get to the bottom of this, we travel 150 years back in time to the premiere of Broadway's very first musical, The Black Crook, the story of an evil German Count who employs black magic to tear a village girl from her starving-artist boyfriend, only to be foiled by the Fairy Queen of the Golden Realm. The play features songs such as "You Naughty Naughty Men" and "Dare I Tell," and is apparently riddled with serendipitous opportunities for the removal of clothing by village girls and fairy queens alike. The Black Crook opened on Broadway in 1866 and ran for a record-breaking 474 performances, followed by a national tour which ended up at one of San Francisco's two major theaters, Thomas Maguire's Opera House.

You may be asking, "What would I do if I owned San Francisco's other major theater?" Here is a suggestion: Open a play opposite The Black Crook called The Black Rook, which features the identical lines, songs and, of course, opportunities for disrobing. That is exactly what the Metropolitan Theater did. Clear-cut copyright infringement, right?

Nope. Unfortunately for The Black Crook¸ Federal Judge Matthew Deady was not a fan. In Martinetti v. Maguire, 16 F. Cas. 920 (C.C. Cal 1867), Judge Deady recognized that the elements of copyright infringement were essentially met, but nevertheless refused to extend protection to the play. Deady criticized the "scant and meaningless dialogue" as a mere excuse for "the exhibition of women in novel dress or no dress." In Judge Deady's...