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Well, perhaps you've addressed the obvious questions in detail in the papers, but just working from the blog post:

1) Did you intend the category to be broad or narrow - that is , you start off talking about *obscenity*, but then switch to the very vague *pornography*, and seem to imply you consider it to encompass _Playboy_ - frankly, that seems extremely expansive, on the level of Mackinnon-Dworkin proposed laws.

2) "gives pornography a privileged position"??? It would seem the reverse, that carving out some sort of copyright exception would give pornography a very "privileged" position compared to racism, homophobia, talk-radio (:-)). Copyright generally doesn't entail artistic judgment, and putting that in would seem to be a huge change.

without denying copyright to porn, could it not be classified as a controled substance subject to the laws that appply. We know that certain things are controled by making the tax stamp unavailable. Law could then be crafted to alow the apropriate juristictions to poll their constitient voters to decide if the stamps would be issued. There are still a few "dry" counties in the US. This way copyright would remain intact and WE THE PEOPLE would decide if porn was available in our area. WELCOME BACK ANN!

Seth, the Mitchell court said all porn including obscene porn was copyrightable. Playboy produces pornographic photos and films, perhaps you have never watched The Playboy Channel, but some of the Playboy output might be deemed obscene by some standards.

Porn has a privileged position as opposed to (e.g.) music, where the legitimacy and scope of copyright protections have been bitterly contested. Porn seems to get a pass on these sorts of issues.

bobc - I'm still abroad but thanks for the input! I'll be back next week. One possibility of many is to grant copyright protection for porn that is certified "cruelty free" but not to porn for which the specifics of production are unknown. What do you think?

Yes, I understood the finding of the Mitchell court. And it seems to me to correct, in that since obscenity is a *local* matter, but copyright is a *national* - even *international* matter - they don't mix well. Or would finding something obscene in the most repressive district of the US suffice to forfeit its copyright in the ENTIRE NATION? Do you really mean that? Hence my question - how far are you going with this? What sort of standard are you proposing to deem something "porn" and hence uncopyrightable? You don't have to have every detail down pat, but could you at least give a ballpark estimate, if we are talking _Playboy_ magazine type material or not?

"Porn" is an artistic judgment, "music" is a general category. All music is treated identically for copyright purposes. It's not like classical music gets more copyright consideration because of presumed greater artistry, while gangsta rap gets less because it's deemed anti-social.

I don't know what you think I have proposed exactly. Some courts think pornography is copyrightable, others do not. I think it is worth considering the social utility of treating all porn as copyrightable, in terms of what sort of incentives are created, how the markets work, what kind of harms are linked to production, and to consumption. When sound recordings was added the the Copyright Act as a category of protectable works in 1972 there was a robust debate. This hasn't happened with porn, and I think it should.

Well, I keep trying to get clarification about what you're proposing, especially if in practice it's narrow or broad - what do you intend to cover by "pornography"? The "do not" cases mentioned above talk about *obscenity*, which is very narrow these days (at least for liberal cities).

Again, "sound recording" is a *medium*, "porngraphy" is an *artistic judgment*. They're not commensurate categories.

Should there be a debate on whether gansta rap is copyrightable?

Ann, as someone wth only comon sense to bring to bear on most topics, I think the "cruelty free" idea would be a good one if there was a way to guarantee that the process could not be corrupted or manipulated by the vast amounts of money involved. The poorly expressed idea of my previous comment tries to take into account both Mr. Finkelstein's assurtion (copyright vs. obscenity) and my own views on the right of a local comunity's wishes to be enforced. Of course the majority is not always correct so some sort of process for reasonable objection must also be in place.
Mr. Fiinkelstien's continued call for clarification is a thinly disguised attempt to do just the opposite to clarification.
Since I can only read and employ common sense, my views are suspect next to those of learned people.

I think that Seth's call for clarification is absolutely necessary to this dicussion, since "pornographic" and "obscene" do *not* mean the same thing. *Some* pornography--works that have not been deemed "obscene" according to the community-standards test (or any other)--has always been copyrightable. As Seth has stressed, "pornography" is a term of artistic/moral evaluation used to describe work with sexually explicit content, while "obscenity" is a legal term (one that has not always been used only to refer to works containing sexual content).

By definition, if a text is judged "obscene" (by whatever standard), then its publication and distribution are illegal, right? (I'm not a copyright person, but rather a cultural historian who occasionally works on obscenity in the 19th-century U.S.) It is my understanding--but please correct me if I'm mistaken--that any legally proscribed speech is not offered copyright protection (this would include libelous and seditous speech, as well as obscenity). It seems to me that the Mitchell court's decision as Ann has described it (I have not read the decision) effectively eliminates the category of "obscenity," by saying that even works of pornography that have been judged to be "obscene" are copyrightable.

In the 19th century, as now, work that contained sexually explicit subject matter--what we would call "pornographic"--was in some cases legal, and thus copyrightable, and in other cases (and locations) it was deemed obscene. The real question seems to be whether or not the legal category of the "obscene" should still exist, and if so, is there a less vague (and variable) way of defining it than by "community standards." Since the category does not seem likely to disappear anytime soon, a more productive area of exploration would be to examine what content qualifies as "obscene" at different times and in different places, since that decision is what determines whether or not a work would enjoy copyright protection. (Donna Dennis is doing very interesting work on how "obscenity" was defined in the antebellum U.S., arguing that works that explictly depicted *female* sexual pleasure were more likely to be deemed obscene.)

As for a "cruelty free" designation for pornography... well, that seems to be an area of regulation which the government (or any other regulatory body) had perhaps best avoid. Aside from which, cruelty, like obscenity, is often in the eye of the beholder. A "fully consensual" label for pornography would be more helpful, if just as difficult to apply.

a relative of mine earns over $400,000 per year but puts in less than 40 hrs./wk.. That's obscene!
To most of my family anyway. LOL!

Prof. Bartow and Mr Sidetable, by "cruelty free" are you concerned with the depiction of cruelty or actual cruelty to the performers i.e. coercion, actual violence, non-payment for services rendered? Actual cruelty seems like a pretty legitimate area for government to be involved.

I can't speak for what Ann means when she refers to "cruelty free." Things like coercion or non-payment of wages are crimes, and thus of course are appropriate areas for government involvement. Some critics of pornography, though, use the term to refer to depictions of cruelty (or the representation of acts the performance of which requires behavior that some reasonable people might construe as "cruel"). That is the gray area to which I was referring.

The most obvious example is S&M-themed porn. Performers in these movies can give their full and informed consent to participating in activities--bondage and other forms of restraint, flagellation, beating, etc.--that in any other context would be considered cruel. But there clearly is a subculture that enjoys S&M (both the activity itself and representations of it), and baffling as the preference may be to me, I'm not willing to say that those kinds of movies shouldn't be made.

Seth,
There is a lot of evidence that people are coerced in various ways to "perform" in pornography. I am not aware of any evidence that people are threatened with violence or beaten to force them to produce gansta rap.

If you go back and read the post, you will see that I have proposed that the relationship between pornography and copyright law be studied and discussed. If all you want to do is throw up your hands and complain that pornography and/or obscenity have not or cannot be defined, I guess the conversation is kind of over.

"Cruelty free" means no coercion or unwanted violence. Compliance with OSHA standards would be a start.

Quote: "You don't have to have every detail down pat, but could you at least give a ballpark estimate, if we are talking _Playboy_ magazine type material or not?"

If you're proposing to study and discuss something, is it an unreasonable question to ask for *some idea* of what that encompasses? "Pornography" is such a loaded term that it would seem a prerequisite to clarify it.

I haven't said it can't be defined - I've asked for *some* definition, primary aimed at determining if it's meant to to be a narrow (obscenity) or broad (nudity) usage.

Note there's definitely people who would argue that gansta rap *produces* violence and beatings ("Cop Killer"). I suspect they'd certainly like to "study" if that's the case. And if you're implicitly defining "pornography" to mean only "that which involved real humans" (as in, cartoons or paintings or CGI are excluded), well, that's an unusual definition.