Alexander on the Passing of the Obscenity Defense in Copyright

Here's an article we missed earlier this year: "Evil Angel Eulogy: Reflections on the Passing of the Obscenity Defense in Copyright," by James R. Alexander (University of Pittsburgh at Johnstown). The article appeared in Volume 20 of the Journal of Intellectual Property Law (2013). Here's the abstract:

This article traces the historical development of the Clean Hands Doctrine (CHD), and its ancillary accepted affirmative (obscenity) defense in copyright infringement, and its residual application to pornographic works. As an equitable doctrine, the CHD was an entirely reasonable judicial response to the earliest statutory provision of copyright protection in the early 18th century in England as applied to different forms of literary property and in particular those suspected of having seditious, blasphemous and immoral tendencies. With no statutory guidance regarding substantive (or content) restrictions on extending copyright protection to literary property and generally reticent to rule on a completely discretionary basis, the Chancery court relied on established equitable maxims or principles as ratio for individual rulings, in the process developing an ersatz structure of procedural precedent. In the process, it sequestered content as a procedural issue deferred to law prior to any equitable consideration, leaving unresolved the more substantive issue of whether all works of literary property were eligible for copyright protection, or differentially when and in what forms could literary works be accorded protection.

The CHD, and more specifically the obscenity defense, was adopted wholesale and with little consideration into American jurisprudence in the 19th century, on occasion nuanced by historical debate over the meaning and intent of the Copyright Clause. Subsequent American statutory delineations for copyright protection, after a few nascent efforts to restrict eligibility to only those works that were original and informative, retreated to a marked absence of discussion of content, throwing judicial consideration of copyright protection almost entirely onto procedural issues, such as registration. By the latter part of the century, courts began to sporadically differentiate between the substantive and procedural elements of the CHD, the former spawning a transforming debate over doctrinal acceptance of the 1868 Hicklin test of obscene tendency and the latter focusing more narrowly the discretionary authority to the Register of Copyrights to reject works of certain content. I argue that this differentiation, and the subsequent obfuscation of obscenity standards resulting from a range of cases leading to and built upon Roth v. U.S. (1957), inevitably led to the appellate ruling in Mitchell Brothers v. Cinema Adult Theater (1979), now generally considered accepted doctrine, that the CHD does not support a substantive exclusion of selected content from copyright protection.

The full article is available here, at SSRN.