Is this film legal to buy?

acctually oscar was not a midget, he was an eleven year old boy. but banning it was absolutely ridiculous. a great movie!

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brower8 writes:

One essential part of the definition of illegal pornography requires that the book or movie have "no redeeming value". The Tin Drum has redeeming value as a setting of a recognizable piece of literature, a classic anti-war novel.

This is true in most instances. The late Supreme Court Justice William Brennan created the three-prong test for pornography, which is that sexually explicit material is pornographic if it:

Appeals to the prurient interest
(i.e. is intended primarily to cause sexual arousal)

Violates contemporary community standards

Lacks redeeming social, artistic or political value

This test makes for a definition of pornography which is narrow, because any material which fails even one of these tests is not pornographic.

For example, a close-up shot of genitalia in a medical textbook is not obscene, either because it is not intended to arouse, or because it has social value.

An almost-identical photo in a pornographic magazine might fail the test, and be considered pornographic. So context can be important.

(A good source of historical info and literary gossip: Edward de Grazia's Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius. The court decision which found William S. Burroughs' Naked Lunch not obscene has--effectively though not explicitly--ended the era of censorship of the written word. Visual images, however, remain more contentious.)

However, the above-listed three-prong test probably does not apply to The Tin Drum.

Legal precedent dating back to the late '70s has determined that child pornography is in a category by itself. Where minors are involved, the usual definition of pornography does not matter. If a film satisfies the legal definition of kiddie porn, then it is illegal regardless of, say, any redeeming value it may have.

The definition is vague, and has changed over the years. Essentially, the visual depiction of minors engaged in sexual arousal or activity is always illegal. So are depictions of a "lewd emphasis on the genitals".

This latter criterion is where things become vague, and the prosecutor and judge can exercise considerable discretion, or lack thereof. Hence cases such as the Oklahoma witchhunt against The Tin Drum and those who watched it.

A classic photo by Edward Weston shows his 12-year-old son's penis in close-up. Because Weston is widely considered among the greatest American photographers, (perhaps the greatest), it's unlikely anyone would be prosecuted for viewing or owning this photograph.

Today, anyone taking a photo such as Weston's would likely be prosecuted, if the act or image came to the attention of the authorities. Even if the photographer was widely regarded as serious and artistic, and had the consent of the model's parents. Jock Sturges being a case in point. (Not that his material contains such a "lewd emphasis", except perhaps in the imagination of a would-be censor.) Sturges was never charged with a crime, but his studio was trashed by the Feds, and his negatives and equipment (his life's work and future livelihood) confiscated.

The law says nothing about aesthetic criteria, nor distinguishes art from porn. The fact that Weston's shot was taken nearly 100 years ago shouldn't matter, but it does.

Michaelangelo's David represents a male perhaps 16 years old. Would a photo be kiddie porn if the camera zoomed in on the sculpture's genitalia? Unlikely it would ever be prosecuted as such. But again, only because the work is well-respected, and old enough not to be considered threatening. (By most reasonable folks, anyway.)

Everything I have described is applicable only to federal law. Many states have their own child pornography statutes. Some are more restrictive than the federal standard; others less so. Some make a distinction depending on the viewer: a photo or video becomes child pornography if the viewer is aroused by it. Such laws create a class of material which is legal for most people, but illegal if owned by a pedophile. However well-intentioned, such laws cross the line into criminalization of thoughts and feelings.

Despite the ultimate failure of the prosecution in Oklahoma, the issue is not settled. Under the federal guidelines, The Tin Drum could easily be regarded as kiddie porn. Sadly, the fact that it is a great work of art is, to the law, irrelevant.

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