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This is a copyright infringement suit, arising under the now-superseded Copyright Act of 1909. But it is more than the usual commercial contest between copyright holder and alleged infringer. The infringers asserted as an affirmative defense that the copyrighted material a movie was obscene, and that, therefore, under the equitable rubric of “unclean hands” plaintiffs were barred from relief. After viewing the film the court found it obscene, adopted the unclean hands rationale, and denied relief to the copyright owners. Review of this holding requires us to consider the constitutional limits upon the power granted to Congress to issue copyrights, the manner in which Congress has chosen to exercise that power, and the applicability of the unclean hands doctrine.

I. The statutory language

The statutory provision that controls in this case reads: “The works for which copyright may be secured under this title shall include all the writings of an author.” Motion pictures are unquestionably “writings” under the Copyright Act.

The district court did not base its decision on standards found within the Act, which it described as “silent as to works which are subject to registration and copyright.” The Act is not “silent.” Rather, the statutory language “all the writings of an author” is facially all-inclusive, within itself admitting of no exceptions. There is not even a hint in the language of s 4 that the obscene nature of a work renders it any less a copyrightable “writing.” There is no other statutory language from which it can be inferred that Congress intended that obscene materials could not be copyrighted.

Moreover, there is good reason not to read an implied exception for obscenity into the copyright statutes. The history of content-based restrictions on copyrights, trademarks, and patents suggests that the absence of such limitations in the Copyright Act of 1909 is the result of an intentional policy choice and not simply an omission. From the first copyright act in 1790, Congress has seldom added restrictions on copyright based on the subject matter of the work, and in each instance has later removed the content restriction. These congressional additions and subsequent deletions, though certainly not conclusive, suggest that Congress has been hostile to content-based restrictions on copyrightability. In contrast Congress has placed explicit content-related restrictions in the current statutes governing the related areas of trademarks and patents. The Lanham Act prohibits registration of any trademark that “consists of or comprises immoral, deceptive, or scandalous matter,”and inventions must be shown to be “useful” before a patent is issued.

The legislative history of the 1976 Act reveals that Congress intends to continue the policy of the 1909 Act of avoiding content restrictions on copyrightability.

It appears to us that Congress has concluded that the constitutional purpose of its copyright power, “to promote the Progress of Science and useful Arts,” is best served by allowing all creative works (in a copyrightable format) to be accorded copyright protection regardless of subject matter or content, trusting to the public taste to reward creators of useful works and to deny creators of useless works any reward. It is not surprising that Congress would choose to rely on public acceptability as a measure of a work’s worth rather than on the judgment of such public officials as the Register of Copyrights and federal and state judges. As Justice Holmes said, in rejecting the argument that under an earlier version of the Copyright Act the courts had a duty to pass upon the artistic merits of engravings and prints.

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value, it would be bold to say that they have not an aesthetic and educational value, and the taste of any public is not to be treated with contempt.

In our view, the absence of content restrictions on copyrightability indicates that Congress has decided that the constitutional goal of encouraging creativity would not be best served if an author had to concern himself not only with the marketability of his work but also with the judgment of government officials regarding the worth of the work.

Further, if Congress were receptive to subject matter restrictions on copyright, there are many reasons why it would be unlikely to choose obscenity as one of those restrictions. Obscenity law is a concept not adapted for use as a means for ascertaining whether creative works may be copyrighted. Obscenity as a constitutional doctrine has developed as an effort to create a tolerable compromise between First Amendment considerations and police power. It is an awkward, barely acceptable concept that continues to dog our judicial system and society at large. The purpose underlying the constitutional grant of power to Congress to protect writings is the promotion of original writings, an invitation to creativity. This is an expansive purpose with no stated limitations of taste or governmental acceptability. Such restraints, if imposed, would be antithetical to promotion of creativity. The pursuit of creativity requires freedom to explore into the gray areas, to the cutting edge, and even beyond. Obscenity, on the other hand, is a limiting doctrine constricting the scope of acceptability of the written word.

Denial of (copyright) Registration could work to discourage the development of the Arts. At least one commentator has argued that denial of registration will increase the circulation of material to the public, by removing the right to sue for unauthorized publication and dissemination of copied material. This view, however, ignores the potentially discouraging effect a stated policy of denial on the ground of obscenity would have on authors, publishers and promoters of works inhabiting the hazy border between obscenity and protected speech.

Society’s view of what is moral and immoral continually changes. Denying copyright protection to works adjudged obscene by the standards of one era would frequently result in lack of copyright protection (and thus lack of financial incentive to create) for works that later generations might consider to be not only non-obscene but even of great literary merit.

Furthermore, creative activity does not, in itself, result in effective expression. Modes of expression must be disseminated in order to reach an audience or readership. This requires physical effort, and investment in tangible goods and services is necessary to distribute the various forms of expression. Effective dissemination of creative work costs money.

All distribution of expression would not cease in the absence of copyright. An author or other person with beneficent motives might pay for the distribution, at little or no cost to the recipient. This sort of largesse is routinely inflicted on the public during political campaigns. An author also might be able to earn some money by selling quickly before pirates could market their copies. However, the large amounts of capital presently invested in disseminating information and thought in newspapers, magazines, books, movies, and other forms of copyrightable material would flow elsewhere if there were no property right to protect the value of these investments.

The Supreme Court has implied a “right to hear” in the first amendment. In essence, this is the right to reach an audience or readership. The economic basis of copyright facilitates exercise of this right by providing the financial wherewithal for its exercise.

Further, Congress in not enacting an obscenity exception to copyrightability avoids substantial practical difficulties and delicate First Amendment issues. Since what is obscene in one local community may be non-obscene protected speech in another, and the copyright statute does not in other respects vary in its applicability from locality to locality, Congress in enacting an obscenity exception would create the dilemma of choosing between using community standards that would (arguably unconstitutionally) fragment the uniform national standards of the copyright system and venturing into the uncharted waters of a national obscenity standard.

II. Constitutionality of the copyright statute

The conclusion that the 1909 Act was all-inclusive and did not provide an exception for obscenity does not end our inquiry, however. We must consider whether the statute, in allowing copyright of obscene material, was constitutional and whether despite congressional intent the courts should take it upon themselves to permit the defense of obscenity in copyright infringement cases. We first turn to the question of constitutionality.

The Copyright and Patent Clause of the Constitution provides that “The Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and Inventors the exclusive Right to their respective Writings and discoveries....” The words of the copyright clause of the constitution do not require that Writings shall promote science or useful arts: they require that Congress shall promote those ends. It could well be argued that by passing general laws to protect all works, Congress better fulfills its designated ends than it would by denying protection to all books the contents of which were open to real or imagined objection....

Within the limits of the constitutional grant, the Congress may, of course, implement the stated purpose of the Framers by selecting the policy which in its judgment best effectuates the constitutional aim. This is but a corollary to the grant to Congress of any Article I power.

Judging by this standard, it is obvious that although Congress could require that each copyrighted work be shown to promote the useful arts (as it has with patents), it need not do so. As discussed in the previous section, Congress could reasonably conclude that the best way to promote creativity is not to impose any governmental restrictions on the subject matter of copyrightable works. By making this choice Congress removes the chilling effect of governmental judgments on potential authors and avoids the strong possibility that governmental officials (including judges) will err in separating the useful from the non-useful. Moreover, unlike patents, the grant of a copyright to a non-useful work impedes the progress of the sciences and the useful arts only very slightly, if at all, for the possessor of a copyright does not have any right to block further dissemination or use of the ideas contained in his works.

The all-inclusive nature of the 1909 Act reflects the policy judgment that encouraging the production of wheat also requires the protection of a good deal of chaff. We cannot say this judgment was so unreasonable as to exceed congressional power. We conclude that the protection of all writings, without regard to their content, is a constitutionally permissible means of promoting science and the useful arts.

III. Judicially-created defenses to infringement actions involving immoral or obscene works

Assuming for the moment that the equitable doctrine of unclean hands has any field of application in this case, it should not be used as a conduit for asserting obscenity as a limit upon copyright protection. Creating a defense of obscenity in the name of unclean hands or through any other vehicle adds a defense not authorized by Congress that may, as discussed above, actually frustrate the congressional purpose underlying an all-inclusive copyright statute. It will discourage creativity by freighting it with a requirement of judicial approval. Requiring authors of controversial, unpopular, or new material to go through judicial proceedings to validate the content of their writings is antithetical to the aim of copyrights. If the copyright holder cannot obtain financial protection for his work because of actual or possible judicial objections to the subject matter, the pro-creativity purpose of the copyright laws will be undercut.

The Supreme Court and this court have held that equitable doctrines should not be applied where their application will defeat the purpose of a statute.

Furthermore, the need for an additional check on obscenity is not apparent. Most if not all states have statutes regulating the dissemination of obscene materials, and there is an array of federal statutes dealing with this subject, as well. See note 16 Supra. As Professor Chafee concluded, the difficulty inherent in formulating a workable obscenity defense to copyright is sufficient reason not to allow such a defense unless the other criminal and civil statutes dealing with the obscenity problem are shown to be plainly ineffective:

Sometimes the legislature has expressly entrusted questions of obscenity to the courts, as in criminal statutes, and then judges have to do the best they can, but the results have been quite erratic. This should be a warning against rushing into new obscenity jobs which no legislature has told them to undertake.

The question of how to deal with the relationship between copyrights and obscenity is not best suited for case-by-case judicial resolution but is instead most appropriately resolved by legislatures. Congress has not chosen to refuse copyrights on obscene materials, and we should be cautious in overriding the legislative judgment on this issue.

Apart from the question whether denying copyright protection to obscene works will, on balance, produce more or less creation and dissemination of obscenity, there is, of course, a separate issue of the chilling effect upon authors of new or controversial material that is within the bounds of protected speech but, in the eye of some one or more viewers, arguable obscene.

Finally, permitting obscenity as a defense would introduce an unmanageable array of issues into routine copyright infringement actions.

For reasons that we have set out, obscenity is not an appropriate defense in an infringement action, whether piggybacked on the unclean hands rubric or introduced in some other manner. But even if obscenity were not objectionable as a defense, the unclean hands doctrine could not properly be used as the vehicle for that defense.

In the present case the copyright holders’ actions are not inconsistent with any policy of the copyright laws. The infringers’ attempt to immunize their illegal acts by wrapping themselves in the mantle of a “public injury” caused by plaintiffs is antithetical to the purpose of these laws. The effort cannot be sustained. In an appropriate case a misuse of the copyright statute that in some way subverts the purpose of the statute the promotion of originality might constitute a bar to judicial relief. This is not such a case. The unclean hands doctrine was not applicable.

REVERSED and REMANDED.

1. 根据本案法官裁决，版权法的立法本意并不禁止淫秽作品得到版权保护，其依据是什么？商标法的政策考虑有何不同？

2. 淫秽作品得到版权保护是否违反了美国宪法中的“版权和专利条款”，是否未能促进科学和技术的进步？