March 9th, 2012 | By Polypomp

Art or Porn – Can Porn Be Copyrighted?

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Is it art or porn? You decide.

There currently is a court case winding its way through the hallowed halls of the California judicial system asking a very important question, can porn be copyrighted?

Aside from that query, this is a case about a person being subjected to potentially undue harassment and intimidation by a large corporation whose sole interest is money. I am a child of the Napster Generation; I remember when Metallica got them shut down and some of the first piracy settlement letters were sent out. This is a retelling of that decade’s old tale, with a much sexier twist, because this time we’re talking about porno. The lawyers in this case are arguing that porn is not copyrightable because it does not have scientific, social, or artistic value.

This case is also a revisiting of the age old question: is it art or is it porn?

Let’s cover some definitions first. The word is copyright, not copywrite, as I used to think it was spelled when I was a kid. This is because you can copyright more than writing; in reality, the compound word copyright has much more focus on the word right than the word copy.

Breaking the word down, a copyright is the legal rights to make a copy of something, in order to do that you must hold the copyright or it must be in the public domain. The purpose of copyright law is to provide the creators of music, books, and other things with a monetary incentive to create new things.

Public domain refers to works whose copyrights have expired or things created before copyright law, everyone has a right to things in the public domain, though individual translations/versions of songs/books may cost money. Open source software is one example of something in the public domain, including the web browser Mozilla Firefox, the Microsoft word alternative Open Office, and various alternatives to Adobe Photoshop. Pictures and music can also be in the public domain. On average it takes 50-70 years for a copyright to expire, and in some cases they can be renewed. A final important definition is pornography, which, according to Webster’s dictionary, is any media intended to cause sexual arousal. The key word is intent.

Can anything be copyrighted? What are the restrictions? The lawsuit is relying on Article 1, Section 8, Clause 8 of the United States Constitution, as its legal reasoning, which states: “[Congress has the right to] promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is a very limited view of copyright law which has been expanded over the years by the courts.

Enough about copyright law for now; I’m leaving the real meat of that for my next post. This blog entry is going to discuss a question humanity has asked itself since we first drew ourselves naked, is it art or is it porn? It’s oft been said that beauty is in the eye of the beholder; thankfully beholders have many eyes so there is a myriad of possibilities for what is beautiful. It is my belief that perhaps porn is also in the eye of the beholder. You be the judge.

Venus Figurines - art or porn?

Venus Figurines: Are They Art, Or Art They Porn?

I’m going to take you through a chronological journey of mankind’s desire to make naked replicas of ourselves, beginning with Venus figurines. Another common name for Venus figurines is fertility idols. Whatever you call them, they are statues of women often with large breasts and often depicted as being pregnant. The earliest that have found date back to around 30,000 BC. There are a lot of theories about why prehistoric people’s created them, ranging from spiritual to pornographic. At the end of the day, no one really knows and it is all speculation by modern day people who have little in common with our prehistoric selves.

The Verdict: I think you’d be hard pressed to find someone that would call these statues porn in today’s world, and in all honesty they may never have been porn. At this point all we can do is guess at the intention of the statues, without knowing the intention we cannot say if they’re pornographic or not.

The Venus De Milo: Is It Art, Or Is It Porn?

The Venus De Milo is a statue of the Greek goddess Aphrodite, believed to have been sculpted by Alexandros of Antioch. This is one of the most famous statues of antiquity, and since it’s discovery in 1820 on the island of Melos it has been on display at the Louvre, in France. Aphrodite is the ancient Greek goddess of love, the most beautiful woman in existence. Like the Venus figurines, no one is entirely sure why the Venus De Milo was created, though as it depicts a goddess it is likely religious in some way. As we have learned from Victoria’s Secret magazines in the hands of horny youngsters, the original intent of images can be re-purposed.

The Verdict: Highly likely to have had religious intent, equally unlikely to have been a public pornographic exhibition, unless the ancient Aegeans were much more sexually open than expected.

The Kama Sutra - art or porn?

The Kama Sutra: Is It Art, Or Is It Porn?

The Kama Sutra is perhaps the most famous book on lovemaking in the history of mankind. It was written by the Hindu and vedic philosopher Vātsyāyana and it is not tantric text. The purpose of the text was not to be a manual on sex so much as a guide to setting your enjoyment of the senses, or kama, in context with your dharma, virtuous living, and artha, the amassing of wealth.

It is a semi-spiritual text to living a good and balanced life. While there is a major focus on sex, virtuous living was meant to be the main focus, with sex as a part of that. If you’re interested in reading the book you can find a full version online for free. Some of the information is pretty kinky, such as instructions on the proper sound a “bottom” should make when getting spanked; other information is more mundane, such as discussion of the “lower Congress,” a very sly way to say anal sex.

The Verdict: While it is not porn, as it is a manual on how to live life it is undoubtedly copyrightable as a work of literature. But, in the case of the Kama Sutra, it predates any copyright law so it is public domain, though individual versions will cost you money.

Le Gran Odalisque

La Grande Odalisque: Is It Art, Or Is It Porn?

Coming from the Neo-Classical disciplines of Romanticism and Orientalism, Le Grande Odalisque is a painting of an odalisque, an old fashioned word that covers a range of relations from a second wife to a love slave. While the painter, Jean-Auguste-Dominique Ingres, wanted to create an air of eroticism in the painting it wasn’t meant to be overtly sexual. Arguably, its intent was meant to be  commentary on colonialism and exoticism, though it is possible it created feelings of sexual arousal in Frenchmen of the time.

The Verdict: It is believed the intent was social commentary, this would make it copyrightable and art.

Portrait of Madame X

Portrait of Madame X: Is It Art, Or Is It Porn?

The Portrait of Madame X, by John Singer Sargent, was such a sexually controversial painting when it was first publicly shown in 1884, he was requested to repaint over it. The scandal surrounding the painting ruined not only Sargent’s reputation but also that of Madame X, Virginie Amélie Avegno. Virginie was an American expatriate who had gone to France and excelled as a French socialite, largely due to her beauty. She married very well and had a reputation for sleeping around, not at all unlike the celebrities of today, you could go so far as to compare this scandal to a celebrity sex tape for a different era. If you’re interested in seeing it, it’s on display at the New York Metropolitan Museum of Art, if you’d like to read more on the story check out the book Strapless.

The Verdict: While the painting was clearly scandalous for its time, the fact that the artist painted over it clearly shows an effort to cover up his perceived wrongdoing, literally. This is pretty strong evidence that, while it was meant to be sexual and edgy, it was not meant to be overtly pornographic.

Who's Nailin' Paylin?

Nailin’ Paylin: Is It Art, Or Is It Porn?

Released on November 4th, 2008, the day of the Presidential election, Who’s Nailin’ Paylin was a pornographic film released by Hustler studios featuring Sarah Palin look-alike Lisa Ann. While the dialog is pretty terrible and the political commentary preys on the lowest of hanging fruits, the film is still a work of political satire that openly attacked a current political candidate. While there is room for debate over how much the porno actual influenced people’s voting in the election, as Sarah Palin had already made a mockery of herself, it clearly had the potential to influence people’s opinions.

The Verdict: Without a doubt this is a porno. Additionally, it is a work of satire, parody, or perhaps even a political attack ad; all of which are protected under US copyright law. Does this mean that all porno’s are copyrightable as works of satire? No, but it shows the capacity for a porn to be more than just a porn. It leaves a door open to a porn being something with societal, artistic, or scientific value, just like the Constitution and current US copyright law require.

So where does this leave us? Clearly, porn is in the eye of the beholder; from the beginning of humanity’s depicting of ourselves naked we have had the capacity for porn, as well as artistic nudes. Within reason, whatever is porn for one person could be fine art to somebody else. In terms of the case at hand, this implies that it may not be proper for a court of law to decide whether or not porn is art or not, perhaps that is up to people to decide. We’ve also seen that clearly something can be porn but also something more, like political satire in the case of Nailin’ Paylin or parody like 2005′s Pirates.

Stay tuned for next week’s installment, where I go a step further from discussing what is or is not porn, and discuss the specifics of pirating pornography and what this all means for this case.

Comments

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  • Dianne McQuade

    I think that the people that make porn should be protected by these laws too.

    I have a print of the Portrait of Madame X that I bought at the MET.  I had no idea that it was originally a scandalous painting.  I will have to read more about it.  

  • Lizzzphoto

    Definitely they should be copyright protected.  Even if you do not ‘agree’ with what’s being made, the people making the films (books, magazines, or pictures) should still be protected. 

  • Anonymous

    I can’t believe this is even a question in the lawmaker’s minds.  Of course porn should be copyright protected.  I also believe that if more congressmen would live a little and enjoy some porn, they’d be less likely to have affairs.  Less affairs means less chances for sexy spy girls to get sensitive information.  So in essence, more porn for top officials means a more secure nation.  More porn for everyone!

  • http://www.pornogoddess.com/ Kinky Kiki

    Yes, porn should be copyrighted. I agree with Jennifer – it’s ridiculous that this is even a question. 

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  • Rikki_mortel

    porn is an art .is a a one of the categories of the movie industry , i believed every art things came from a brilliant mind every little lines in the porn movies is came from a great writer . so she/he deserve to be copyrighted her craps ..

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