Fair use vs plagiarism

[AchtungNight]

Yes. Know your publishers. And be ready to fall on a sword for your audience if you must. My adult entertainment hero Larry Flynt held such an attitude, as do I.

Full disclosure- two other websites, both now defunct, have turned down my work in totality based on certain criteria. Lit has turned down certain of my works while publishing others. I must keep advertising my work and growing as a writer meanwhile.

It is a constant tightrope I walk between two high towers in a certain American city. High winds, extreme temperatures, and various audience reactions are concerning me as I dance on the wire. Airplanes are approaching the building and a giant monkey is climbing a building nearby- or maybe my building. I’m not sure. My building is shaking and I can smell bananas, that’s all I know. I can also hear Godzilla roaring in the distance. Phillip Petit never walked a wire tense as this!

 

[XerXesXu]

Agreed. This opinion isn't based on actual law, at least as far as US law is concerned.

1. First, it's not clear what kinds of fiction would qualify as "obscene" under US law anymore. There have been a few rare cases in the last 20 years of people being prosecuted for writing violent pedophilia, but they're rare, and it's not at all clear that the Supreme Court, if it ruled on the issue, would agree. NOBODY can say with any confidence that this or that piece of fiction would qualify as "obscenity" and therefore not be entitled to copyright protection. There simply isn't enough legal guidance in the case law to give anybody any confidence that something would be found to be obscene. People publish stories all the time that contain the most heinous and vile descriptions of rape and murder and mayhem and sexual depravity, and they don't get prosecuted for obscenity. "Obscenity" appears to be almost extinct in the US, at least as far as fiction is concerned.

2. I'm not aware that "obscenity" is a legal basis for denying copyright protection, or that it would be a valid defense against a copyright infringement claim. If you sued somebody for copyright infringement, but they alleged the defense that your story was obscene and therefore not subject to copyright protection, I don't think they'd have a leg to stand on if in fact you were never prosecuted for obscenity for your story. The US Copyright Office has published Circular 33 regarding the kinds of subject matter that are not entitled to copyright protection, and it doesn't mention obscene matter.

It's complicated, as you hint in 2.
Remember pornography isn't necessarily obscene. Pornography can be copyrighted. Obscenity is defined by state laws and justiciable by state or federal jurisdiction.

This is a piracy case where obscenity and federal jurisdiction concurred:
Devil Films v Nectar
Relief under the Copyright Act was refused on well-established equitable grounds, the judge thought the Plaintiff should be prosecuted, not assisted by the Court.

If a work can be stripped of relief for infringement under the Copyright Act, it's difficult to say that the Act affords Copyright protection to obscene material. It's merely silent on the matter.

 

[MillieDynamite]

The defining issue, according to the Supreme Court, was if the product had a socially important message or an understandable artistic value. Whatever the fuck that actually means. I have written this from memory, but it is something along those lines.

It's complicated, as you hint in 2.
Remember pornography isn't necessarily obscene. Pornography can be copyrighted. Obscenity is defined by state laws and justiciable by state or federal jurisdiction.

This is a piracy case where obscenity and federal jurisdiction concurred:
Devil Films v Nectar
Relief under the Copyright Act was refused on well-established equitable grounds, the judge thought the Plaintiff should be prosecuted, not assisted by the Court.

If a work can be stripped of relief for infringement under the Copyright Act, it's difficult to say that the Act affords Copyright protection to obscene material. It's merely silent on the matter.

 

[SimonDoom]

The defining issue, according to the Supreme Court, was if the product had a socially important message or an understandable artistic value. Whatever the fuck that actually means. I have written this from memory, but it is something along those lines.

The test for obscenity under Miller v. California, issued in 1973 is this:

"The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary."

As you say, WTF does any of this mean today?

This remains the law on the books. But it's hard to take it that seriously. The USA is deluged with content that could plausibly be said to violate this standard, and yet little of it is prosecuted. I suspect the Supreme Court Justices have no interest in wading in on the issue if they can avoid it (and they have the power to avoid almost anything they want to).

The case cited by XerXesXu is interesting, and I wasn't aware of it. It was a 1998 district court case, the opinion of which was rendered by a 65 year old judge appointed by George HW Bush. The issue was whether the judge should grant a preliminary injunction against the defendant's ongoing piracy of the plaintiff's porn videos. The judge observed that the titles of the infringed videos included ""Straight Anal," "Lesbian," "Transsexual" and one even more explicit category." (my emphasis). He watched some of the videos and found that they were obscene, and refused to grant the injunction, although he ALSO said he declined to find that obscenity was an outright defense to copyright infringement.

Nobody can predict exactly what the courts will do, and there's some small risk that a judge somewhere might be so offended as to try to clamp down on this stuff, but as a practical matter, I think we've mostly moved on from the view that videos about anal, lesbian, and transexual sex are obscene. You just don't see people getting prosecuted for that stuff, and all of the judges on the Supreme Court now are young enough that they've grown up in the era of porn. Heck, there were rumors that Justice Thomas was an avid porn watcher before he became a DC Circuit Judge.

 

[AchtungNight]

The defining issue, according to the Supreme Court, was if the product had a socially important message or an understandable artistic value. Whatever the fuck that actually means. I have written this from memory, but it is something along those lines.

I admit I have used this to defend myself against possible attacks on my erotica fanfics. “Why is there social commentary condemning the paparazzi, gropers, and religious fanaticism in your works, Ach?” My answer- “to keep them from being judged obscene.” For the same reason I write with all the quality I can for the merits of what I am trying to advertise and depict.

 

[XerXesXu]

The test for obscenity under Miller v. California, issued in 1973 is this:

"The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary."

As you say, WTF does any of this mean today?

This remains the law on the books. But it's hard to take it that seriously. The USA is deluged with content that could plausibly be said to violate this standard, and yet little of it is prosecuted. I suspect the Supreme Court Justices have no interest in wading in on the issue if they can avoid it (and they have the power to avoid almost anything they want to).

The case cited by XerXesXu is interesting, and I wasn't aware of it. It was a 1998 district court case, the opinion of which was rendered by a 65 year old judge appointed by George HW Bush. The issue was whether the judge should grant a preliminary injunction against the defendant's ongoing piracy of the plaintiff's porn videos. The judge observed that the titles of the infringed videos included ""Straight Anal," "Lesbian," "Transsexual" and one even more explicit category." (my emphasis). He watched some of the videos and found that they were obscene, and refused to grant the injunction, although he ALSO said he declined to find that obscenity was an outright defense to copyright infringement.

Nobody can predict exactly what the courts will do, and there's some small risk that a judge somewhere might be so offended as to try to clamp down on this stuff, but as a practical matter, I think we've mostly moved on from the view that videos about anal, lesbian, and transexual sex are obscene. You just don't see people getting prosecuted for that stuff, and all of the judges on the Supreme Court now are young enough that they've grown up in the era of porn. Heck, there were rumors that Justice Thomas was an avid porn watcher before he became a DC Circuit Judge.

Value issue: c. whether a “REASONABLE” person: Pope v Illinois

It’s true that obscenity law is so vague and unpredictable In the USA that enforcement activity in relation to adults has been almost abandoned. During the Clinton administration, prosecutions dropped by 90% when stories about the president receiving blowjobs were common currency in the newspapers and on TV bulletins.

The USA has an eccentric obscenity law compounded by an equally eccentric copyright law. Obscenity must be judged by a jury according to a state obscenity law according to the standard of the community standards of the jurisdiction of the STATE district court in which it’s prosecuted – there are many communities within a state. Hypothetically, a specific item can be obscene under a state’s obscenity law in some state district court jurisdictions, but not in others. And in addition, just because it’s obscene on Monday doesn’t mean it’ll be obscene on Tuesday and vice versa, the standards must be ‘current’. Prosecuting for obscenity has become a low priority for state and federal authorities because they have limited budgets, the return on investment is so unpredictable, and they have more pressing priorities that will show up as successes in their annual performance statistics. That’s how bureaucracy works. That doesn’t mean that obscenity law can’t be prayed in aid by any litigant.

In the USA the creator has copyright, OR NOT, in their creation, from the moment of creation. Before their claim is justiciable (has any substance), it must be registered with the Copyright Office. The Office receives a CLAIM of copyright, an appropriate form and appropriate fee. It files them and issues the claimant with a chit. If the claimant subsequently goes to a court to enforce their claim the court will ask for their chit. Claimants who don’t have one are told to go away and get one before any proceedings can be issued. The chit is a condition precedent to justiciability of any claim to copyright, nothing more than that.

But simply because the claimant has a chit doesn’t mean that no defendant can contest that claim. Any contestant can, and they can contest it on the ground that the material is obscene and uncopyrightable/unenforceable. At trial, the jury will decide whether the material is obscene.

A claimant to copyright will find himself in the same position as prosecuting authorities when met with a defence of obscenity. Is it really worth putting money into these proceeding when the outcome is so unpredictable? That’s the way the real world works.