Can copyright be trumped by a penal law against obscenity?

Kat friends Adar Bengom (Ortal) and Jenia Melkhior, from Herzog Fox & Ne'eman in Tel-Aviv, report on how obscenity may render copyright in a work unenforceable in certain circumstances, at least according to one court in Israel.

Can concerns over obscenity cut back on copyright protection? Given a recent ruling given by the Israeli Magistrate Court in Herzliya, the potential answer may be “yes”. In the case of Sex Style v. Abutbul, the plaintiff, a producer of pornographic movies, sued the defendant, an individual who operates an adult website, for copyright infringement. It was alleged that the defendant’s website provided links without authorization to 15 pornographic movies. While the court ruled that the movies are entitled to copyright protection, it declined awarding statutory damages for infringement on the ground of such content, being obscene, was therefore illegal.

At the beginning of its analysis, the court determined that the movies are pornographic (rather than being merely erotic), based simply on the plaintiff‘s statement of claim and without further discussion. After a (very) brief discussion on the copyrightability of the movies, which the court concluded in the positive, the court then turned to the question of whether the copyright in the movies is enforceable in light of the nature of their contents. To address this question, the court relies on the Israel Penal Law, 1977, which prohibits the publication of “obscene” content.

Since there is no definition of “obscenity” in the Penal Law, the court turned to the Telecommunications Law, 1982, which specifies three types of “obscene” content, namely, “(1) presenting sexual intercourse that includes violence, abuse, debasement, humiliation or exploitation, (2) presenting sexual intercourse with a minor or a person presenting to be a minor, or (3) presenting a person or an organ of a person as a readily available sexual object".

The court was of the strong view that obscenity cannot be limited to pedophilic content only [see below], applying a broad interpretation for the scope of the aforementioned types of obscene content in the Telecommunications Law. In fact, according to the court’s description of the movies in question, the movies seem to consist of mere sexual acts, quite likely explicit ones, but that do not include any violence or humiliation. The court seems to characterize the contents in a way that aligns them with the relevant definitions of the Telecommunications Law.

For instance, the court ruled that the title of one of the movies debases women and thus falls under one of the above definitions. Indeed, the court seems generally to focus on the titles of the movies as an indication of whether the content is abusive (e.g., titles such as “slut” “teens (females) in uniform” and “female soldier in raunchy sex”). The court was not apparently influenced by the fact that since the 1980's the police de facto have not enforced the Penal Law in respect of obscene materials except for pedophilic content and that there is therefore no case law post-1980's in this regard. The court noted this but did not find it as determinative in applying the provision of the Penal Law to the instant matter.

The court could have ruled simply on the basis of the foregoing, i.e., that the content is illegal and therefore the copyright should not be enforced, however, it proceeded to provide a lengthy discussion of numerous public policy considerations supporting its result. We will only mention our “top four”. The first refers to what the court calls feministic considerations and the negative impact on women’s image. The court chooses to apply a very partial interpretation of various feminist texts to draw the conclusion that pornographic content negatively affect women’s image. In doing so, it can be argued that the court twists both the "MeToo" movement and the writings of various scholars, such as Catharine MacKinnon, in order to serve its purposes, while not necessarily keeping in line with the original purpose and meaning of such writings.

The second consideration focuses on the frontal nudity and close-up of intimate organs. This seems to also draw the line in the court’s opinion between erotic and pornographic content. The third consideration is that in one of the movies, the actors are wearing Israeli army uniforms and this alone might rise to the level of illegality, as it might constitute a legal offence under Section 217 of the Penal Law titled "Contempt of Uniform". This section provides as follows:

"If a person was not a soldier or police officer and he wore an army or police uniform or a garment similar to them or a garment that bears a soldier's or a police officer's distinctive mark, in a manner or under circumstances that are likely to bring contempt on that uniform, or if he employed another person in the performance of one of those acts, then he is liable to three months imprisonment"

Lastly, the court concludes its decision with an “institutional” consideration, according to which the court’s staff should not be forced into viewing such hard-core pornographic content. In the court’s mind, this highlights the difficulty of enforcing the copyright in the movies, “since at least some of the public might feel uncomfortable watching such content let alone in public”.

The court here has embarked on a dangerous slippery slope since by applying the court's reasoning, enforcement of any otherwise copyright-protected content that is illegal or against public policy, such as gambling or sports betting, might be denied. In view of this, it should also be considered where the line should be drawn between content that is clearly illegal and content whose illegality is ambiguous. These bloggers can only hope that the plaintiff chooses to appeal.