This Recent Development traces in part II the emergence of the rule that obscenity is not copyrightable. Part III then examines the courts' reasoning in Mitchell Brothers and Jartech and analyzes the impact of these cases on copyright law. Part IV finds that although these courts properly vindicate free expression, they fail to recognize adequately the national policy against obscenity and the inconsistency of affording federal copyright protection to materials that violate federal obscenity laws. Thus, this Recent Development argues that the strong national policy against obscenity, as manifested in federal anti-obscenity statutes, requires courts in some cases to deny copyright protection to obscene works that violate a national obscenity standard, even though that standard may not coincide with a local community standard. A federal court could substitute for the community standard a balancing of various national interests such as the following: (1) whether the degree of obscenity requires denial of copyright on public policy grounds; (2) whether organized crime is present in the works' creation, sale, or distribution; (3) whether the works depict sexual exploitation of children; and (4) whether the marketability of the work relies heavily on national distribution. This list, though not exhaustive, represents concerns of the federal government that Jartech and Mitchell Brothers overlook when they give full copyright protection to works that inherently violate federal anti-obscenity policy.
Kurt L. Schmalz,
Problems in Giving Obscenity Copyright Protection: Did Jartech and Mitchell Brothers Go Too Far?,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol36/iss2/5