Copyright Law and Pornography
Sex-for-hire is usually illegal, unless it is being filmed. Debates about pornography tread uneasily into legal terrain that implicates freedom of expression under the First Amendment, the specter of censorship, and genuine concerns about the function and role of pornography in persistent gender inequality. It is less common for conversations about pornography to include a discussion of copyright law. Yet copyright law is a powerful tool that operates to protect the financial interests of pornographers. Owners of copyrighted pornography frequently threaten public exposure of an alleged infringer’s consumption habits in order to force a financial settlement. Thus copyright law operates as both a metaphoric legal shield and sword in the hands of pornographers. This Article introduces to the scholarly conversation consideration of how copyright law might be used by opponents of pornography, particularly those who oppose specific types of pornography such as child pornography, so-called “revenge porn,” “crush porn,” or filmed physical abuse. A strong case can be made that such materials do not warrant copyright protection. Copyright protection is not a necessary prerequisite to authorship, publication or circulation. Withholding copyright protection would sharply reduce the economic value of these particular works, but might also give rise to inconsistent or even incoherent decisions by government actors who would be called upon to make difficult assessments between and among types of pornography.