Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188

Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188 relates to a Full Court judgment in relation to an appeal from the Federal Magistrate. The principal issues on appeal werewhether the magistrate erred in refusing the proposed amendment to the points of defence and limiting cross examination on the legality of the sale of the DVDs; and whether the magistrate erred in his approach to quantification of damages under s 116 and of additional damages under s 115(4) particularly having regard to the content of the works and statutory provisions affecting their distribution and sale.

Finkelstein J also discussed the subsistence of copyright in hard-core pornography and remedies that should be awarded for infringement:

  • “This appeal raises what in Australia is a novel and important question about the subsistence of copyright in film recorded on DVDs and in the associated artwork. The films are not the usual kind of commercial film one expects to find on a DVD. A list of the more than 200 titles of the works in suit indicates that they are all hard-core pornography: they are usually referred to as “adult films”. We were not asked to view any of the DVDs. Nonetheless I have proceeded on the basis that the films depict explicit details of actual sexual activity, have little by way of plot and not much dialogue. Ever since Deep Throat, one of the most popular pornographic films ever made, producers of adult films have reaped millions of dollars in profits. There is a price. Linda Lovelace, the “star” of Deep Throat described in great detail the abuse inflicted on her both before and during the production of Deep Throat: see Linda Lovelace’s Ordeal (1980). Many people find these kinds of films obscene. Does that prevent them from attracting copyright? If copyright,…

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