Quick note: This post will discuss pornographic material and even name some of them, but it will not contain any example as such. I think this makes the article safe for work, but you know you're own workplaces and what is and isn't acceptable material far better than I possibly could so use your own judgement.
Erotic art and entertainment, or porn as its known on the street and the web has created some curious wrinkles for copyright and the concept of intellectual property. Pornographic works were for a long time considered illegal and still are in some jurisdictions. And while over the course of the 20th century there has been a trend of decriminalisation and legalisation of pornography, though some kinds are still criminalised and remain taboo. And even in parts of the world that have had a relaxed attitude to erotic work it still carries stigma. I was listening to a podcast hosted by two friends who have worked for years in film and television in the crew departments, the subject of pornographic films came up and one of the hosts related an anecdote of how some of his workmates have earned extra money working for porn production companies. Even today in liberal California working on porn movies is considered damaging to career and reputation so the practice of pseudonyms is still very common even for camera and stage work.
This is a bit of a problem for the concept of copyright and the public domain. In most of the world the ownership of a work and for how long is attached to an individual or a small group of individuals, which if you don't know who they really are presents an issue for how you can approach the owners for permission or to check copyright is still enforced. With the example of film makers in California in the present day its not so bad, a simple e-mail to the companies registered contact information should clear up any questions, unless of course the contact information is no longer valid. But for older works, before the rise of the digital economy and back when large parts of the industry faced legal sanction and total social ostracisation that becomes much harder. It wasn't uncommon for the people who worked on pornographic material to have used a shell identity as protection.
For life+ nations this means its almost impossible to say for certain on much pornographic material from the past. Of course the problem of the anonymous creator goes b.eyond pornography, I'm merely focussing on it here as thanks to historical circumstances this problem is endemic to that industry. Its a bit of a sticky situation if you forgive the pun. Though there are some pornographic material on the internet archive and wikimediacommons that is, as far as anyone can tell in the public domain. Yes I have seen some of it, and no I will not be linking any, what would the advertisers say? Some countries have made provisions for anonymously published works, though the criteria for these and the protections afforded vary wildly from country to country. In the United Kingdom an anonymous work that remains anonymous is protected for 70 years.
Works of unknown authorship are where the identity of the author(s) is unknown, or where it cannot be identified by reasonable enquiry. A work where the author was once known, cannot be later regarded as a work of unknown authorship. 70 years from the end of the year in which it was made. If during that period the work is made available to the public (publication, exhibition, etc.), 70 years from the end of the year in which it was first made available.
https://www.gov.uk/government/publications/copyright-notice-duration-of-copyright-term/copyright-notice-duration-of-copyright-term
And in the United States we're still in the period of 95 years from publication so any pornographic material released over there made before 1928 will also be in the public domain. In addition, the United States has another interesting facet in regards to pornography. In the United States for much of its history until the 1980s works had to be registered to enjoy copyright protection. Exactly what steps were needed for registering differed a bit depending on the specific legislation but it did require filling out information on who the owners were. This at a time when porn was illegal or at least absolutely toxic to reputation and career. So, most pornographers just didn't bother registering. So the majority of pornographic and erotic content made before the 1980s in the United States has no registration and therefore no IP protection.
There have been some notable legal cases regarding this. Debbie Does Dallas was a very popular and well known pornographic movie, so popular in fact the creators managed to secure an exclusive deal on the new video market. But, an exclusive deal on a film without a copyright notice isn't a sound business strategy. Many people ignored that agreement, the distributors placed retroactive copyright notices on their video releases and the creators of the film sort legal action to combat the unauthorised versions. It failed because the film wasn't copyrighted. This was an important case as it helped establish that its the original release of the work that overrides all others. There were several more attempts by film and TV producers to retroactively copyright lapsed or unregistered content via home video and ultimately it came to nothing. Well not nothing, it did encourage re-releases, extended cuts and bonus footage releases since you could make a stronger but by no means guaranteed case for copyright protection on substantially altered material.
Debbie Does Dallas didn't end its legal trials there though. Because the film heavily featured the Dallas Cowboys and its Cheerleader squad and its logo and imagery the owners of the trademark for the Dallas Cowboys took umbrage at an unauthorised film of that calibre so also pursued legal action against the film. So, the first of the Debbie Does Dallas series is in the public domain as is the character of Debbie herself, but its usage could fall under trademark disputes.
Overall it remains a contentious issue for intellectual property discussion. Remaining legal quandaries, moral opposition and the culture of secrecy mean it will continue to cause friction. There are two potential ways of resolving this, reform to the copyright system to encourage public ownership or ending the moral climate of embarrassment and reputational damage associated with the vice industry so we can have some clarity on its production.
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