I had an idea.
While the First Amendment may guarantee, precedentally, under the Miller Test, that Hollywood et al may be able make movies that “have historic and artistic significance”, thus potentially passing the Miller Test, that end up being things like some of the movies that Brooke Shields was in, as a minor.
But, does that necessarily guarantee their (the Content producers, and Copyright holders, who exploited the minors) right to have Copyright on those specific works?
Because if you take away the Copyright, you erode the profit incentive.
Without the profit incentive, there is no incentive for the Big Moneyed interest, or most moneyed interests, to make more of them.
The consequences on distribution, would be more complicated.
On the one hand, margins on the “without Copyright” works would go way down.
This is, in that way, a disincentive regarding profit driven distribution.
However, I must also concede that might increase proliferation of those Hollywood et all works, because without Copyright, anyone could distribute them, without having to pay a Copyright fee to do so.
They in essence, for better or worse, then become Public Domain.
As a way of mitigating that concern, we could, as part of the new legislature, for all the works prior to the date of enactment of the Copyright limitations I proposed,
Mandate that 100% of the Copyright Rights for those prior works goes to the minors that were in them, and/or their heirs, as restitution, for their prior poor treatment, by their handlers, and the State, who should have known better.
That would also solve this problem, partially, “However, I must also concede that might increase proliferation of those Hollywood et all works, because without Copyright, anyone could distribute them, without having to pay a Copyright fee to do so.”
I am not speculating on ending Copyright generally, or universally.
But, rather, I am proposing a limit to Copyright, in the US, at least, on any work that features real minors, in a state of undress, particularly.
Including, as a very rare exception to my own reluctance regarding Ex Post Facto.
It’s a half measure, but sometimes baby steps are required.
None of what I have speculated on, in this email, is meant to limit or erode the First Amendment, or to kill art.
We are all familiar with the recent absurd concerns surrounding the Statue of David, etc.
It is meant, to protect a vulnerable population.
Thoughts?