Is *Tako to Ama* obscene pornography?
<p><em>Tako to Ama</em>, better known as <a href="https://en.wikipedia.org/wiki/The_Dream_of_the_Fisherman%27s_Wife" rel="nofollow noreferrer"><em>the dream of the fisherman's wife</em></a> or <em>pearl diver and two octopi</em>, is an 1814 woodblook print by Housukai. It is widely reprinted from its original source for artistic purposes, often cropped. However, the problem is not that it is <em>art</em> it is in part its history, and content matter.</p>
<ul>
<li>It was originally part of a dedicated erotica book called <em>Kinoe no Komatsu</em> ('Young Pines') and accompanied by an erotic tale.</li>
<li>It depicts oral intercourse of a nude female with two octopi.</li>
</ul>
<p>This makes me wonder: Does this work get the treatment of an <strong>artistic</strong> nude or <strong>obscene</strong> pornography in the US (or for more specific: California), or does this depend on how the picture is framed?</p>

<p>There are federal laws against distributing <a href="https://www.law.cornell.edu/uscode/text/18/1470" rel="nofollow noreferrer"><em>obscene</em> material to minors</a>, or producing or possessing <em>obscene</em> <a href="https://www.law.cornell.edu/uscode/text/18/1466A" rel="nofollow noreferrer">material depicting minors</a>. Other prohibitions against <em>obscene</em> material  include mailing it (§1461), importing it (§1462) and producing it (§1465).
<a href="https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity" rel="nofollow noreferrer">Here</a> is the DoJ guideline on laws restricting <em>obscene</em> material. As developed in  Miller v. California, 413 U.S. 15, Smith v. US, 431 U.S. 291, and Pope v. Illinois, 481 U.S. 497, there is a three-pronged test</p>
<blockquote>
<p>Whether the average person, applying contemporary adult community
standards, finds that the matter, taken as a whole, appeals to
prurient interests (i.e., an erotic, lascivious, abnormal, unhealthy,
degrading, shameful, or morbid interest in nudity, sex, or excretion);</p>
<p>Whether the average person, applying contemporary adult community
standards, finds that the matter depicts or describes sexual conduct
in a patently offensive way (i.e., ultimate sexual acts, normal or
perverted, actual or simulated, masturbation, excretory functions,
lewd exhibition of the genitals, or sado-masochistic sexual abuse);</p>
<p>Whether a reasonable person finds that the matter, taken as a whole,
lacks serious literary, artistic, political, or scientific value.</p>
</blockquote>
<p>There is no prohibition against pornographic material, so we needn't be concerned with whether the material is pornographic, the pertinent question is whether it is <strong>obscene</strong>. This has to be determined by consulting &quot;the average person, applying contemporary adult community
standards&quot; and whether a &quot;reasonable&quot; person will find that it
lacks serious literary, artistic, political, or scientific value. This can only be determined at trial.</p>

<p>It seems to me that the work is obviously pornographic, but it seems equally clear that it has serious historical and artistic value -- even to a juvenile -- so it would not be considered obscenity and would remain generally protected under the First Amendment.</p>

united-states california pornography