The opinion of the court was delivered by: MISHLER
Sherpix, Inc., the claimant in this proceeding, imported a cartoon film titled "Sinderella." It arrived at John F. Kennedy International Airport on May 27, 1972. The film was offered for entry on May 31, 1972 by claimant's customs broker. It was seized by customs agents on June 6, 1972 after viewing the filming as obscene under the authority of section 305 of the Tariff Act (19 U.S.C. § 1305). The government instituted this proceeding by filing a complaint in the office of the Clerk of this court on June 16, 1972.
The sole issue on the merits of the claim is whether the film is obscene.
The government's case was a showing of the film. The claimant offered the opinion of three experts and the testimony of Louis Sher, president of Sherpix.
"Sinderella" is an animated cartoon with accompanying sound. The running time of the film is about 6 1/2 minutes. The general outline of the plot is the story of Cinderella interspersed with bits and parts of Little Red Riding Hood, Puss N' Boots and Goldilocks and The Three Bears. While the narrator recites the script with the tonal wonderment of a fairy tale free from vulgarity, the film depicts sexual organs and sexual acts. The first scene shows Sinderella in the woods; she finds something on the ground which upon her urging becomes an erect phallus, she then inserts it between her legs in masturbation. Other scenes depict Sinderella performing sexual acts with the above-mentioned fairy-tale characters as well as the prince in a bedroom of the palace and shadowy outlines indicating The Three Bears having sexual relations with Sinderella in rapid succession. There is hardly a frame of the film that does not show genital organs, the sexual act, or movement from which sexual activity is suggested.
Professor Charles Winick, a professor of sociology and a licensed psychologist, conducted a consumer study of viewers of sexually explicit materials authorized by the President's Commission on Obscenity and Pornography. He interviewed 5,000 consumers in that study and wrote on changing attitudes toward sexual behavior of the American public since 1945. He made a study for the National Association of Broadcasters to develop a method for quantifying the contents of cartoons. He testified that cartoons almost always tend to be humorous and their visual stimuli of movement and action and wit interest all age groups. Professor Winick found redeeming social value in the wit and humor of the film. He found that combining aspects of the four fairy tales ". . . in the cartoon format of a modern version of these several elements of folklore and fairy tales" was witty and clever. In his opinion the film is not likely to stimulate sexual fantasies because viewers do not identify with the semi-abstract shapes and figures of a cartoon.
Professor Frank Hoffman is a professor of English at the State University College in Buffalo and is in charge of a program in folk-lore and motion pictures. He found that the film followed ". . . the outline of the traditional story of Cinderella developed in a humorous, witty, satirical manner with an orientation towards sex." He states that portrayal of an erect phallus and sexual acts "adds humor, satire, wit to the tale." Professor Hoffman opined that the film's depiction of sexual acts does not offend contemporary national community standards.
Professor Richard Brown is a professor at New York University. He teaches various courses relating to the history and production of motion picture films. He too found redeeming social value in the humor and satire of the film and felt that it did not affront contemporary community standards.
Louis Sher testified that he intended showing the cartoon in combination with an X rated picture.
The claimant is the sole distributor of the film in the United States.
The test to determine obscenity as defined in Roth v. United States, 354 U.S. 476, 489, 77 S. Ct. 1304, 1311, 1 L. Ed. 2d 1498 (1957), is "[Whether] to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Referring to the definition in Roth the Court stated in A Book, etc. v. Attorney General of Com. of Mass., 383 U.S. 413, 418, 86 S. Ct. 975, 977, 16 L. Ed. 2d 1 (1966):
"Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value."
The difficulty in applying the test laid down by the Court is demonstrated in United States v. One Carton Positive Motion Picture Film, 367 F.2d 889 (2d Cir. 1966).
Circuit Judge Moore, writing for the court, quoted with approval a statement from a Swedish psychiatrist as follows:
"A society which is unable to endure '491' is a sick society; a society which is prepared to learn from it will ...