I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
— Supreme Court Justice Potter Stewart, concurring in Jacobellis v. Ohio, commenting on Les Amants. note The quote would turn into a Never Live It Down moment for Stewart as no one remembers that he consistently voted against censorship. But then again, maybe Stewart was being facetiously serious about his ability to distinguish pornography; he was a young naval officer stationed in Casablanca during WWII, and one of his jobs as watch officer was to confiscate the locally-produced hardcore pornography his seamen (stop sniggering) tried to smuggle in.
It's got lots of naked women (or men) in suggestive poses. But it's thoroughly artistic — I swear! Therefore it can't be considered pornography, and it doesn't matter that it's hidden under my bed.
Pornographic works carry a considerable stigma in the U.S. and (to a lesser extent) in other Western countries. However, a great deal of classic works of art contain nudity (and occasionally, sex acts). For this reason, legally a work of art is not considered pornographic under U.S. obscenity laws; what constitutes "artistic merit" is left somewhat vague.
One result is that fictional characters (and occasionally real people) will try to get away with reading, watching, or creating something that most people would consider pornographic by claiming that the item in question is really a "work of art". For teenage boys (the usual claimant) this never works. Occasionally it's the "artist" making the claim, in which case he or she may or may not get away with it. Bonus points if he insists that the fault is in the viewer, who has a dirty mind.
In either case, the item in question will be something very few people would consider "artistic", unless the trope is being played with, particularly if the item in question genuinely does possess artistic merit even if it is porn—i.e., they're defending themselves from the belief that True Art is Clean. After all, who said that porn can't be art? This trope is something of an inversion of Moral Guardians, who are typically presumed wrong — hence why Moral Guardians themselves often use this trope in their works. National Geographic Nudity follows on the same "these naked people are depicted solely for educational purposes" line. Compare I Read It for the Articles.
Inverted in Hana-Kimi, when Mizuki buys an illustrated book that contains some nude photos. She doesn't want to show it to Sano, claiming she doesn't want him to look at porn, though in this case it really is art.
Kill la Kill, full stop, with a Stripperific sailor uniform being one of the key cast members, and an entire faction called Nudist Beach, it can blur the line to hell and back.
Sadly somewhat Truth in Television: many famous antique statues during the late Renaissance / Victorian age in Italy were altered to have leaves covering their genitals. The cast of David at the South Kensington Museum (now the Victoria and Albert Museum), had a detachable plaster fig leaf, added for visits by Queen Victoria and other important ladies, when it was hung on the figure using two strategically placed hooks; it is now displayed nearby.
It gets a lot worse with classical depictions of fertility goddesses. Pretty much all of them are shown naked. Some were shown naked and masturbating. Some of the more noteworthy ones were depicted naked, masturbating, and staring directly at the viewer.
In his book Beauty: A Very Short Introduction, Roger Scruton points out a key difference between pornography and art: the objectification of the human body. About Titian's Venus of Urbino—the painting Mark Twain called "the foulest, the vilest, the obscenest picture the world possesses"—he writes thusly:
"As Kenneth Clark pointed out, in his celebrated study of the nude, the reclining Venus marks a break with antiquity, when the goddess was never shown in a horizontal position. The reclining nude shows the body not as a statue to be worshipped but as a woman to be desired. Even in the Venus of Urbino—that most provocative of Titian's female nudes—the lady draws our eyes to her face, which tells us that this body is on offer only in the way that the woman herself is on offer, to the lover who can honestly meet her gaze. To all others the body is out of bounds, being the intimate property of the face that looks out from it [...]. The face individualizes the body, possesses it in the name of freedom, and condemns every covetous glance as a violation. The Titian nude neither provokes nor excites, but retains a detached serenity—the serenity of a person, whose thoughts and desires are not ours but hers."
Note, though, that it being made by Romans doesn't mean it can't be porn. Archaeologists have discovered obscene wall-paintings in the ruins of Pompeii. On the walls of brothels. It's Not Porn, It's Advertisement. And there exist Greek vases which were decorated with pictures of people having sex. Since Greek vases often had pictures which demonstrated their contents on them, it's maybe best not to think too closely about that one...
This is a common topic of discussion of deviantART. The webpage allows frontal nudity (since it is considered art) but nothing that seems porn/hentai (example: someone grabbing a naked woman's boob). This leads to some conflict, because some "artists" upload pictures or their model/girlfriend/themselves with their legs opened in a less-than-subtle way note leading to phrases like "I am no gynecologist, so how come I am always looking at pussy here?"; whereas more artistic drawings/photos are rejected because they show person-to-person contact.
This also gets discussed in cyclical fashion quite often on Furaffinity, where those who believe porn or anything designed to titillate/arouse has no artistic merit by its very nature, so that those who create porn or merely sexually-themed pictures and stories have to resort to this trope as a defense, unless they simply don't care what the Moral Guardians think of their work (and the argument that it is art never convinces them anyway).
By simply being old, pornography can lapse into art. Ancient pornographic material such as illustrated Kama Sutras, and Japanese booklets are now on display in museums as historical artifacts.
Around the start of the Impressionist movement Edouard Manet's two paintings "Luncheon In The Grass" and "Olympia" were met with outrage from critics for placing nude women in an everyday setting. Apparently nudity was okay as long as they were goddesses, nymphs, sprites etc but real women nude in paintings was a big no-no.
Quite a few artists from around the 19th century ran into this problem,it's possible that Thomas Eakins got into trouble for this(and a variety of other indiscretions). Sort of what happens when you get the right combination of prudery, the dawn of public art exhibitions, and artist not being dead enough to get away with nudes.
Likewise, photos of nude women were considered art during photography's heyday as a serious art form, as photography was a recent invention at the time and widely considered a luxury few could afford to maintain. In particular, posing prepubescent girls for nude photos was in vogue when a certain well-known mathematician and writer of nonsense children's literature decided to get in on the photography craze. Unfortunately, Values Dissonance and a lack of cultural context led some independent biographers to believe he had an unhealthy interest in young girls. Or maybe his unhealthy interest in young girls led him to photography. It's hard to say for sure.
A really weird version happens in "Scarecrow: Year One." Jonathan Crane is about thirteen years old, and at dinner his very religious grandmother remarks that she looked under his bed, and the terrified and embarrassed look on little Crane's face makes the reader pretty certain Gran found a Playboy - but then she pulls out an anthology of James Joyce short stories. She proceeds to accuse him of masturbating to it and punishes him harshly, as though it really were porn, while little Crane protests, "It's literature, Gran!" May actually be something to that accusation, as Joyce's Letters to Nora were... impressive.
When Kyle Rayner and Donna Troy broke up, it was for a variety of different reasons. But the thing that kicked it off was Donna Troy walking in on Kyle sketching a topless woman in his apartment and not appreciating his defense of, "But I'm an artist! It's what I do!"
Donna came off especially hypocritical because she works as a photographer who often took pictures of the very scantily-clad Starfire for her portfolio. Apparently if it's a photograph it's art and is all well and good, but if it's drawn it's just smut.
The issue is discussed in Guarding the Globe, where the Guardians of the Globe attend teammate (and professional photographer) Bulletproof's gallery opening. The pictures are all of a naked woman, and Bulletproof is having sex with her in some of them. Outrun, who is established in later issues to be a sex maniac, ends up buying one of them for her personal enjoyment at home
In Strangers in Paradise, Francine discovers that some of Katchoo's art are nudes calls them obscene. At that, Katchoo blows up herself, roaring "Don't you ever call my art obscene!"
Possibly averted or inverted but definitely Lampshaded is Alan Moore's Girls. An incredibly beautiful graphic novel series done in watercolours about Alice, Wendy, and Dorothy meeting each other as grown women... and the copious amounts of raunchy sex they have, with each other, with many people in their youth (the framing device is all the "fairy tales" are actually the girl's first/continuing encounters with sex, with references as to how sex acts became story points) and various other guests at the hotel they happen to find themselves at. It is rigorously defended as "high art" by almost all critics, has fairly good standing amongst the literature circles, despite the vast amounts of sexual depravity and indulgence; and Moore will swear up and down they are all idiots and Girls is nothing but porn. Well drawn and well written porn, maybe, but still porn.
A number of old "white-coaters" such as Man & Wife (1969) cross this trope with National Geographic Nudity in an "It's not porn, it's a marital manual!" way. Indeed, this particular example has nothing but some screen-crawls at the beginning explaining the alleged educational necessity of the movie, an alleged doctor giving a long lecture on the need for husbands and wives to educate themselves in how to satisfy each other, and then a long series of shots of allegedly married couples having sex in various positions with a voice-over explaining some of the alleged benefits and drawbacks of each position. Considering how vanilla this all is, you might just end up taking the movie's claim to be strictly educational at face value after all.
High school students in the third Porky's attempt this on the Principal when caught misusing the Audio-Visual Club's equipment to view a stag film. They insist the film cannot be judged without viewing it in its entirety. While the gym teacher isn't buying it one bit, the principal is more than eager to screen it.
Spielen wir Liebe, possibly the most controversial film of all time, features full frontal nudity and simulated sex between underage participants. The boy and the two girls featured were fourteen and twelve respectively when they made this film. Its defenders have tried—unsuccessfully—to make this argument with the courts in Germany and the Netherlands, where it is now banned as child pornography and the company that released it on DVD has been forced to recall every copy it could. (This has not stopped rips of it—for better or for worse—from remaining available on the internet.)
In Throw Momma from the Train, Billy Crystal plays a creative writing professor whose students have the barest concept of stringing a sentence together in the first place. During class they critique a man's work entitled "100 Girls I'd Like to Pork" (literally just a list with accompanying pictures and no story at all) which the "author" declares to be a coffee table book. "This isn't literature!" argues Billy Crystal, to which the guy says something like "Well, it's a fantasy, like Melville, and this is my white whale." Another classmate declares it "very brave."
Humorously, in the second-to-last scene when Billy Crystal's character is just about to finish his novel, you can see that same student's book in printed form on the desk. The title was changed and sounds very artistic, and has a colorful, almost mythological in tone cover illustration. You might not even notice it without the passing remark deVito's character makes, which just makes it even funnier.
Mark is an art dealer in Love Actually, whose gallery showcased a series of Christmas themed nudes. He said the trope name to a bunch school girls giggling at the photograph of nude carolers. What was funnier is that a deleted scene showed that Mark’s first comment when he opened the pictures:
Mark: Oh my God. It’s Porn.
Nightwatching is allegedly about Rembrandt's angst whilst painting his most famous work. Being a painter, this manifests as an awful lot of sex, drinking, sex, swearing and sex. And sitting around naked.
Discussed in the Discworld novel Thud! — it's noted that the Stripperific clothing of exotic dancers is logically more obscene than "great art" showing completely naked women, on the account of (according to Sergeant Colon) the dancers having "No urns", or Plinths, or cupids in their presence.
And again in Wintersmith, although when Nanny Ogg says the presence of cupids shows it's Art, and not just women with no clothes on, Granny Weatherwax sniffs, "Well, they're not foolin' me."
When Commander Vimes visits his wife's estate in Snuff, he finds that her ancestors bought nude statuary. He reflexively checks that the statues are holding fruit, as "holding fruit" makes it art. Later on, he regrets that the master bathroom has been decorated in... meticulously detailed scenes of nude frolicking with no fruit or urns to be seen.
Guy Blod, a sculptor in Left Behind, decides an appropriate memorial for the late Antichrist would be an enormous, highly-detailed metal nude. He reacts this way to "Tribulation Saints" who find the statue unsettling. (No one else cares — by this point in the series, all television is either porn or Gorn. Even the news.)
Used as an excuse by the Anti-Hero in Eric Ambler's novel The Light of Day. At one point in his life, he published illegal pornography of no literary value in several European countries and got prosecuted for it. When questioned about this by the Turkish police, he engages in sophistry and references the previous banning of works like Lady Chatterley's Lover (which had just been allowed to be published in England at the time Ambler's novel was written).
Also, one annoying character in his Slaughterhouse-Five was showing to his squadmate what was described as "a print of the first dirty photograph in history". Allegedly, the author of the original photograph (an assistant to Louis Daguerre), when confronted by the authorities, resorted to the "It's art" defence.
"Le Fèvre argued that the picture was fine art, and that his intention was to make Greek mythology come alive. He said that columns and the potted palm proved that. When asked which myth he meant to represent Le Fèvre replied that there were thousands of myths like that, with the woman a mortal and the pony a god. He was sentenced to six months in prison. He died there of pneumonia. So it goes."
"So, you claim this film expresses an environmentalist theme?" "Yes. The woman feels very passionately about the zucchini."
Henry Miller was irritated by both the people who hated his books as porn, and the people who loved them as porn. His own argument was that sex is an important part of life and he didn't want to leave it out any more than he'd leave out anything else important.
William S. Burroughs makes a sly nod this trope in his book Naked Lunch (which was itself on trial for being pornographic, but later found to have redeeming merit) with the character of The Great Slashtubitch, an "impresario of blue movies and short-wave TV" who takes pornography very seriously as an art form. Disgusted by "counterfeit orgasm", he thinks it takes "sincerity and art, and devotion" for actors to work in his films in lieu of "shoddy trickery" like "dubbed gasps, rubber turds and vials of milk concealed in the ear and shots of yohimbine sneaked in the wings". Slashtubitch appears again in Burroughs' later book The Wild Boys, spelled Slastobitch and elaborates upon his position.
Slastobitch: The new look in blue movies stresses story and character. This is the space age and sex movies must express the longing to escape from flesh through sex. The way in is the way through . . . The scene where Johnny has crabs and mark makes him undress . . . Who are these boys? Where will they go? They will become astronauts playing the part of the American married idiots until the moment they take off on a Gemini expedition bound for Mars disconnect and lave the earth behind forever . . .
Umberto Eco wrote an essay in the '70s about how to tell films with artistic value from porn. He argued that porn movies always contain a lot of padding before sex scenes to titillate the audience.
'I lit the oil lamp. Now! Where were me old pornographic photographs...("It's all lies officer! I bought them as art studies, I am a keen art student of twenty-one" etc.)'
Along the lines of the Discworld ruminations, in Best Served Cold, there is a passage in which the Anti-Hero Monza (who lives in a Renaissance Italian Fantasy Counterpart Culture) sees a piece of art that makes her question the distinction: "There was a huge canvas in a gleaming frame on one wall-a woman with an improbable bosom bathing in a stream, and seeming to enjoy it a lot more than was likely. Monza never had understood why getting out a tit or two made for a better painting. But painters seemed to think it did, so tits is what you got."
Live Action TV
30 Rock: in the episode "Cougars", Frank's poorly rendered painting of a mermaid had to have the breasts covered for Standards, yet the outside of 30 Rockefeller Center is covered with carvings of topless women which are shown every week in the title sequence.
Boston Legal has a university professor accused of soliciting prostitution under the guise of "research". He had made a video of himself with the prostitute that the prosecution is going to use as evidence. But, taking advantage of the odd American legal rule, his own lawyers argue that he actually was creating pornography and was therefore protected under the First Amendment. If it's porn, it's not prostitution and therefore not a crime!
Played for laughs in Chappelle's Show, when Dave becomes Oprah Winfrey's "baby's daddy." Oprah doesn't bat an eye when she sees him painting a portrait with a gorgeous nude model, but after she leaves we see that he's just painting a big-boobed stick figure on the canvas.
Dick: She's nakeder than they are; why is this for aesthetic appreciation and this for arousal? Mrs. Dubcek: Well, this is Michelangelo, while this is... Michael and Angelo.
In the final season three episode of Blackadder, Edmund mentions (among a few other things he's extorting out of the Prince) the "highly artistic but also highly illegal set of French lithographs". He describes them as a "sack of French porn" about thirty seconds later, so whether they're porn, artistic or they fall into that grey area in the middle is left up to the viewer.
From the second seris episode "Money", the compromising paintings of The Bishop of Bath & Wells could potentially form the basis of an exhibition of challenging young artists.
In The Office (US), Ryan attempts to pass off his amateur black-and-white photos as "artistic"; one is a topless photo of his ex(?)-girlfriend Kelly, which Ryan says is about "exposure in the workplace".
In a deleted scene, Stanley says this when his coworkers catch him looking at Hentai.
And this happens while the singer is floating in the air on her back and her girlfriend has just disappeared out of frame.
On Three's Company, Jack answers an ad for a modeling job, only to find out that the photographer wants him to pose naked for a Playboy-esque magazine. But he insists on calling it "nude."
Jack: What's the difference?
Photographer: "Naked" is dirty. "Nude" is art.
From an episode of Bottom, as Eddie tries to defend his purchase of an old porn magazine as an 'investment':
Richie: It doesn't matter how you art it up, Eddie, it's still a... "jazz mag".
Eddie: That's what they said to Michelangelo about the Sistine Chapel!
Richie: No it's not! The Sistine Chapel is art. If they said anything they would have said "Blimey! Nice painting Mr. Angelo. Now that's what I call art, and it's not porny at all!"
Eddie: It bloody well is dirty you know. There's those three birds on the top of the third pillar from the left with the blue ribbon. Corr — some of the things they're doing would make your nose bleed!
In Party Down, actor Steve Guttenberg owns a painting of a erect nude man holding a porcupine. The profound artistic value of the artwork is summed up by the following statement: "He wants to have sex with the porcupine. But he can't."
In How I Met Your Mother episode "Home Wreckers", Ted's new stepfather Clint gives Ted a graphic painting of Ted's mother hugging Clint (who is holding a guitar) while both are naked. Narrator!Ted comments, "There was no guitar."
The Dead Kennedys included a print of H. R. Giger's painting "Penis Landscape" (which depicted a wall of penises entering a wall of vaginas) with their landmark album Frankenchrist. Members of the band were charged with Distributing Harmful Matter to Minors based on this, and though the case did not result in a conviction (the painting was, finally, ruled "art" and not "porn"), the band's Alternative Tentacles record label was driven almost to bankruptcy because of trial costs.
In the Goon Show, Major Bloodnok would regularly be involved in the illegal distribution of "photographs for Art Lovers" which would, at the very least be concealed within a brown paper bag.
This is how the nude revues at the Windmill Theatre in London came about. The Lord Chamberlain, at that time the national censor, was forced to rule that since naked statues were allowed on public display, naked women could appear on stage as long as they didn't move. If they moved, they were obviously not statues, and therefore, "rude".
Grand Theft Auto: Vice City. This is mentioned in the cutscene for the first porn studio mission. After walking onto the set and before revealing he's the new boss, Tommy starts yelling at director Steve Scott about the various props on the set.
Tommy: Why'd you get into this business, ya prick? Huh? For the pussy, that's why. What is this?
Scott: This is my art.
Then as it cuts back into the gameplay, Tommy says "What's that guy think this is? Some free art crap? Jeez, like anyone ever watched movies about fish."
The video game Turgor (known to English-speakers as The Void). Even though you spend a large amount of the game watching nude women seductively posing for you, the majority of critics thought saw it as a serious piece of art, and thought the Fanservice actually served a thematic purpose. It could be that the nudity is just as prominent, or that the gameplay requires patience and careful planning, or just the fact that true art is offensive, incomprehensible, and foreign, but few have accused it of being purely a vehicle for Fanservice.
The Soft Dorothy Software logo seen in Glider and Pararena, an 1889 engraving of a topless fairy, caused problems with shareware distributors (including a ban from Compuserve that was later rescinded). The developer even got "all of two pieces of hate mail" and muses that that's still more eyebrows than the original art probably ever raised in Europe.
These striking depictions of the EXQUISITE FAUNA native to Alternia remind you of the PUREST PHYSICAL IDEAL that must be sought by anyone who professes a LOVE OF STRENGTH. When those of lesser bloodlines turn up their uncultured noses at such stunning material, it MAKES YOU FURIOUS.
The other trolls seem to consider the portraits to be fine art as well, possibly because trolls don't reproduce that way. To them, it's about as pornographic as a flower.
In a non-canon El Goonish Shive comic, Susan catches Sarah looking at nude photos, but Sarah assures her that it's only for art reference.
Dave Kelly's webcomic from 2000, simply entitled Smut, was nothing but drawings of strange cartoon characters having sex while saying strange things. It's still unknown whether or not it was meant to parody this trope or is playing it very straight.
Bender and the Ship's computer have an argument concerning this subject in an episode of Futurama.
An episode of The Simpsons played with this; the "pornographic" work in question was Michelangelo's David◊. It goes something like this: Marge has successfully crusaded to get cartoon violence off the air. When her fellow Moral Guardians come to her to complain about David, she says she's okay with it because it's art. A bit later, Roger Meyers Jr. (the head of Itchy and Scratchy) confronts her on a news interview show and asks her how she can be for one form of expression and against another. She isn't able to give a satisfactory answer, so society declares her protest invalid and hypocritical and lets animated violence return (to the delight of Springfield's children).
Family Guy gives us this joke in the first season:
Peter: What's the difference between pornography and art? ... A government grant!
In US law, one of the few ways that a work can be banned is if it's declared "obscene".note Often such a ban proves unenforceable, but that's another matter entirely. One of the requirements of being declared obscene is that it has no artistic or other redeeming value. For instance, a picture of a naked person, or of people having sex, cannot be banned if it's proven that the picture has artistic merit or if it has educational or scientific merit (e.g. a picture in a book on anatomy, medicine, biology, or sexual education). This distinction has never been made clear; the basic thrust of the rule, famously articulated in Potter Stewart's opinion in Jacobellis v. Ohio, is "I know it when I see it." This has earned the nick name "the limp dick test" in some legal circles. Because of how vague the definition of pornography was, the justices of the Supreme Court had to watch every film accused of obscenity (and had its case appealed up to the Supreme Court) and judge them on an individual basis. Yes, during the 1950s to 1970s, one of the jobs of a Supreme Court justice and clerk is to gather one-day-per-year in the darkened basement of the Supreme Court building (Room 22-B) and watch the year's crop of "art" films. Because of Justice John Marshall Harlan II's failing eyesight, Justices Thurgood Marshall and Potter Stewart took great pleasure in narrating the action on screen ("By George, extraordinary!" was the oft-heard sarcastic reply from Harlan; incidentally, all three Justices were advocates of free speech).
The more detailed rule, articulated in 1973's Miller v. California, is three-pronged:
Would a reasonable person, applying community standards, think the material appeals primarily to the prurient interest (i.e. is it primarily intended to get one sexually aroused)?
Does the material depict some sexual act, predefined by state statute, in a patently offensive way?
Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?
If the answer to all three is "yes," then it can be banned (not that it necessarily will be banned). This is still ultimately a "know it when I see it" doctrine, since it depends on the subjective determinations of "community standards" regarding "prurient interest" and "serious literary, artistic, political, or scientific value". The latter element is what Stewart was talking about (the work in Jacobellis was The Lovers, a pretentious French art film that certainly had artistic value, albeit extremely French artistic value).
One of the most prominent ways pornography can be legalized. Lawyers claimed it's just art where actors simply played people who acted as promiscuous, therefore, it's not de facto prostitution. This argument is way more effective if it really is just just art on a paper or some other non-living medium, with no real breathing people involved. (e.g. Ancient Greek vase gay pornography, the demonstration drawings on The Other Wiki, hentai, etc.)
A strip club owner in New York argued that his dancers were artists and thus not subject to anti-nudity laws. A judge agreed, although it's still under dispute.