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This is actually an incredibly interesting (and cunning) assertion. I hope she takes it all the way, and doesn't accept a settlement from the defendants. Havin

This is actually an incredibly interesting (and cunning) assertion. I hope she takes it all the way, and doesn't accept a settlement from the defendants. Having some case law on this matter would be, at the very least, entertaining. It seems the judge would have to rule either that porn is "useful art", or that it cannot be copyrighted. One little copyright troll may just have inadvertently kicked the proverbial hornets' nest.

RexRollman 15y ago
What's interesting is that while some porn does have artistic elements, a lot of newer porn does not: it is literally just people fucking. In the case of the latter, I think the producers would be hard pressed to argue that anything creative or expressive is taking place.
- jarin 15y ago
  Generally when determining obscenity the determining factor of the Miller Test is the community standards. When I worked at a porn company, I remember hearing about a case where the defense proved community standards by getting statistics about pay-per-view porn on local cable providers.
- redthrowaway 15y ago
  So a big-budget knockoff of a Hollywood movie (a la Pirates XXX) would be protected as art, but backroom casting couch wouldn't? Similarly, Star Wars Kid wouldn't be covered, but Tosh's show on it would be? I'm simply fascinated by the possible ramifications of a court deciding this issue.
  - ars 15y ago
    Those things are not obscene. What he's saying it that to rise above obscene, porn would/could add extra artistic stuff to it.
- pron 15y ago
  I don't know. On occasion, "just people fucking" could be quite creative and certainly expressive.
- Jun8 15y ago
  I think this issue is much more general than porn (although it does make it more interesting). I can declare: "Writer X's (e.g. X=John Grisham, substitute your own bad writer) novels are worthless, so I can freely share them". This would be ridiculous statement (cf. Grisham's net worth ~ $200M).
- alan_cx 15y ago
  Could make the same sort of point about music, movies and TV these days. What is the artistic merit of Desperate Housewives, The Transformers, and Britney Spears? Hell, much of that is sold on titillation alone. Sounds like artless porn to me.
roel_v 15y ago
No the judge doesn't. The more likely situation is that the constitutional goals of copyright are not an exhaustive list or precondition of properties of a work to be copyrightable. The article says 'early Circuit ruling', meaning at a) it's 'only' a circuit ruling, and b) that it might have been from a long time ago. What is 'useful art'? Are they going to argue that some horror movies aren't copyrightable? Or Justin Bieber songs? This argument is a stretch, I can't see it going far.
- _delirium 15y ago
  In addition, there's quite a bit of leeway with the necessary & proper clause (though that may not be needed here). Since judges determining on a case-by-case basis the usefulness of a specific work is pretty obviously unworkable, the Copyright Clause's grant of power to Congress must include the right to set clear rules on classes of copyrightable works, even if some non-zero percentage of works in that class don't individually promote the progress of science and the useful arts, because that's a necessary activity for Congress to be able to create a workable copyright system. (That's one possible argument, anyway.)
sambeau 15y ago
Useful Art is taken to mean "invention" so Porn definitely wouldn't fall there (unless something genuinely new was demonstrated).
anigbrowl 15y ago
It will go nowhere. The Supreme Court narrowed the criteria for obscenity so much in the 1970s that very little material qualifies any more, including 99.9% porn. There is abundant case law on the subject already, but most of it is of only historical interest to first amendment scholars these days.
- bilbo0s 15y ago
  Obscenity is not in question...Only utility. You'd be surprised how significant the precision of wording is in law. And I would be surprised if lawyers didn't seek to have this very point litigated.
  - anigbrowl 15y ago
    Not really, as I am a law student and quite interested in first amendment issues. However, the question of whether porn is obscene is at the outer limits of being relevant on HN to begin with, and I'm reluctant to spend a whole afternoon writing an extended argument with citations and so forth. If you're interested in why I think the utility argument is a dead letter, look up the work of Edward De Grazia, a leading legal writer and litigator in this area.
- mynameishere 15y ago
  Why are so many people conflating non-obscenity and "useful art"? Very odd. It's not obscene (wink, wink, sure whatever) but you would have to delve into the lower reaches of willful stupidity to claim that "Anal Creampies 5" is "useful art" and therefore suitable for copyright protection.
  - matthewcieplak 15y ago
    It's not much of a stretch to say that it's useful to the creator, as he stakes his livelihood on it. The constitution does not specify to whom the art must be useful.
  - vidarh 15y ago
    In the legal world, it's not "useful arts" that would be in question, but "science" in this case. "Useful arts" is in contrast to the "performing arts" and "fine arts" - it refers to practical skills, not what we talk about as art today.

RexRollman 15y ago

What's interesting is that while some porn does have artistic elements, a lot of newer porn does not: it is literally just people fucking. In the case of the latter, I think the producers would be hard pressed to argue that anything creative or expressive is taking place.

jarin 15y ago
Generally when determining obscenity the determining factor of the Miller Test is the community standards. When I worked at a porn company, I remember hearing about a case where the defense proved community standards by getting statistics about pay-per-view porn on local cable providers.
redthrowaway 15y ago
So a big-budget knockoff of a Hollywood movie (a la Pirates XXX) would be protected as art, but backroom casting couch wouldn't? Similarly, Star Wars Kid wouldn't be covered, but Tosh's show on it would be? I'm simply fascinated by the possible ramifications of a court deciding this issue.
- ars 15y ago
  Those things are not obscene. What he's saying it that to rise above obscene, porn would/could add extra artistic stuff to it.
pron 15y ago
I don't know. On occasion, "just people fucking" could be quite creative and certainly expressive.
Jun8 15y ago
I think this issue is much more general than porn (although it does make it more interesting). I can declare: "Writer X's (e.g. X=John Grisham, substitute your own bad writer) novels are worthless, so I can freely share them". This would be ridiculous statement (cf. Grisham's net worth ~ $200M).
alan_cx 15y ago
Could make the same sort of point about music, movies and TV these days. What is the artistic merit of Desperate Housewives, The Transformers, and Britney Spears? Hell, much of that is sold on titillation alone. Sounds like artless porn to me.

roel_v 15y ago

No the judge doesn't. The more likely situation is that the constitutional goals of copyright are not an exhaustive list or precondition of properties of a work to be copyrightable. The article says 'early Circuit ruling', meaning at a) it's 'only' a circuit ruling, and b) that it might have been from a long time ago. What is 'useful art'? Are they going to argue that some horror movies aren't copyrightable? Or Justin Bieber songs? This argument is a stretch, I can't see it going far.

_delirium 15y ago
In addition, there's quite a bit of leeway with the necessary & proper clause (though that may not be needed here). Since judges determining on a case-by-case basis the usefulness of a specific work is pretty obviously unworkable, the Copyright Clause's grant of power to Congress must include the right to set clear rules on classes of copyrightable works, even if some non-zero percentage of works in that class don't individually promote the progress of science and the useful arts, because that's a necessary activity for Congress to be able to create a workable copyright system. (That's one possible argument, anyway.)

sambeau 15y ago

Useful Art is taken to mean "invention" so Porn definitely wouldn't fall there (unless something genuinely new was demonstrated).

anigbrowl 15y ago

It will go nowhere. The Supreme Court narrowed the criteria for obscenity so much in the 1970s that very little material qualifies any more, including 99.9% porn. There is abundant case law on the subject already, but most of it is of only historical interest to first amendment scholars these days.

bilbo0s 15y ago
Obscenity is not in question...Only utility. You'd be surprised how significant the precision of wording is in law. And I would be surprised if lawyers didn't seek to have this very point litigated.
- anigbrowl 15y ago
  Not really, as I am a law student and quite interested in first amendment issues. However, the question of whether porn is obscene is at the outer limits of being relevant on HN to begin with, and I'm reluctant to spend a whole afternoon writing an extended argument with citations and so forth. If you're interested in why I think the utility argument is a dead letter, look up the work of Edward De Grazia, a leading legal writer and litigator in this area.
mynameishere 15y ago
Why are so many people conflating non-obscenity and "useful art"? Very odd. It's not obscene (wink, wink, sure whatever) but you would have to delve into the lower reaches of willful stupidity to claim that "Anal Creampies 5" is "useful art" and therefore suitable for copyright protection.
- matthewcieplak 15y ago
  It's not much of a stretch to say that it's useful to the creator, as he stakes his livelihood on it. The constitution does not specify to whom the art must be useful.
- vidarh 15y ago
  In the legal world, it's not "useful arts" that would be in question, but "science" in this case. "Useful arts" is in contrast to the "performing arts" and "fine arts" - it refers to practical skills, not what we talk about as art today.