Models Sue Top Agencies for $20M

MANHATTAN (CN) – Professional models sued top modeling and ad agencies and cosmetics firms in a $20 million class action, claiming the defendants continue to profit from models’ work after their contracts expire.

Raske says the agencies typically demand 20 percent booking fees. “These agreements contain industry wide terms and are commonly for a period of three years,” the complaint states.

She claims that the dozens of defendant agencies “commonly, without the knowledge of the models and or without legal authority or permission, either forge the models’ signatures and/or execute documents as if the modeling agencies had contacted the models and had the legal authority to execute the documents.”

She claims the agencies do not disclose “statements/breakdowns to the models.”

“Since the models are unaware of the extended/expanded usages for which the modeling agencies have negotiated and received payment on their behalf, unless the models somehow fortuitously discover the use of their image on a product or in an advertisement, the models never demand or receive payment and at the very least, the modeling agencies are unjustly enriched by the models’ funds,” the complaint states.

Raske claims that when other models voiced similar claims in Fears v. Wilhelmina Model Agency, the agencies “attempted to threaten and intimidate” them into dropping their claims. “The models were told by the modeling agencies that any models that participated in the class action would be ‘blackballed’ and would ‘never again model in New York,'” according to the complaint.

Read more at Courthouse News -> http://www.entlawdigest.com/2012/10/18/1891.htm

Strip Club Fees Aren’t Tax Exempt, Court Says

(CN) – Strip club dances are not “cultural and artistic” enough to qualify for a state tax break, New York’s high court ruled.
The New York Court of Appeals ruled 4-3 that the admission fees and private dance fees of Nite Moves, an adult “juice bar” in Latham, are not tax exempt. State law allows New York to tax admission fees to “any place of amusement,” including sporting events, zoos and ice shows, but grants an exception for “dramatic or musical arts performances.”

Nite Moves owner New Loudon Corp. argued that its exotic stage and private dances qualify as musical arts performances under this exemption. But the appellate majority disagreed, upholding the Tax Appeals Tribunal’s ruling against the strip club.

Read more at Courthouse News -> http://www.entlawdigest.com/2012/10/24/1907.htm

Strippers Win $13 Million Class Settlement

LOS ANGELES (CN) – A federal judge approved a $12.9 million class settlement for exotic dancers who claimed strip clubs denied them benefits by calling them independent contractors.

More than a dozen dancers settled the 3-year-old class action with several operators of adult entertainment clubs. Among other abuses, the dancers claimed that clubs helped themselves to more than half their tips, penalized them for not selling enough drinks to customers, and made them pay stage fees. Defendants included the Spearmint Rhino.

Under the terms of the settlement, the clubs will treat dancers as either employees, partners or shareholders in their businesses, and in California, dancers will no longer have to cough up pay-to-perform fees.

Read more at Courthouse News -> http://www.entlawdigest.com/2012/10/10/1868.htm

 

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Porn 101: Choosing An Agent – Part 2

On October 3, 2012, in Legal, by adultbizlaw

In part one of this article ( Please see: http://adultbizlaw.com/porn-101-choosing-an-agent/ ) I discussed whether a performer should choose a bonded and licensed agent, whom those agents are and what does a proper talent agency contract look like. In this article I will discuss what difference moving to and living in Los Angeles can have to a performer’s career and what your agent can and cannot do in regards to their representation.

Moving to Los Angeles?

The decision to move to Los Angeles to pursue a career in adult is not an easy one. Los Angeles can be an expensive area to live. Rents are usually higher then in other non-metropolitan areas ($1000-$3000 per month for a 1-2 bedroom apartment). Food and dining out can be expensive in Los Angeles as well. Obviously anyone can live anywhere on a budget but for the most part it will be more expensive to live in Los Angeles then most places.

However, not living in Los Angeles will likely mean that the performer will be booked less than a performer that lives in Los Angeles. Living in Los Angeles means that you are more available to work. If a performer lives in Oklahoma and a director/producer wants to cast her in a scene, he/she would have to wait for the performer to come to Los Angeles. That is likely not going to happen, unless the performer is a “pornstar.” If another performer “flakes” on the scene then the producer/director will likely call the agent and ask for a replacement performer to be sent to set immediately. A performer not living in Los Angeles will not have the opportunity for that job. Agents will often push local performers more so then those that live out of state.

A performer living in Los Angeles will usually be booked more since he/she would be more readily available to be booked. Also, living in Los Angeles will allow that performer to meet and develop relationships with more producers/directors/talent in the industry. The more people a performer knows the more opportunities he/she usually has to work. Many new performers think that once they get an agent their work is done. From talent I have talked to over the years it seems as though they believe that their agent is going to be “pounding the pavement” looking for work for them. That is not usually how it happens.

Directors/Producers usually decide on who they may want for a particular movie or scene based on physical attributes ie., hair color, race, breast size or willingness to perform a particular sex act ect. That director/producer will go to the various agent’s websites looking for performers that fit that requirement. When the director/producer finds such talent he/she will starting making phone calls to the agent to inquire into the availability of a particular performer. The job will usually go to a local performer since the producer has less worry about a local performer showing up on the date of the shoot.

An agent does not and cannot sit on the phone calling every production company with potential work for their clients. Some agents do send out email blasts and some even still do what are called “go-sees.” Other than that performers should not expect much more from their agents in the way of promotion. That is something talent has to do for themselves either in person who using social media such as Facebook and Twitter. Many performers are also now hiring a publicist to also promote them within the industry. This is something that I highly recommend. A good publicist will be able to secure appearances and interviews that may lead to more work.

Obviously, living in Los Angeles and meeting the directors/producers will increase a performer’s circle of friends and increase their potential chances for work. However, living in Los Angeles does not guaranty a performer more work, just the opportunity to meet those people that might offer them more work. Moving to Los Angeles is a decision that has to be considered carefully. The increase in living expenses might off set the amount of income earned through any additional work that the performer receives. As a general rule though it is my experience that performers living in Los Angeles do get booked more often then those that are not.

What Can an Agent Legally Do ?

On January 24, 2009 an article I wrote titled “Balancing Talent Agents, Performers and Producers” was published on XBiz.com and in their XBiz World Magazine (Please see: http://www.xbiz.com/articles/104087/fattorosi ). Even though this article is over three years old many of the things I wrote about remain true. Below are some excerpts from that article. I would suggest that anyone reading this article also read my original article linked to above.

Kill Fees: Are They Allowed ?

Producers can charged performers kill fees in case the performer does not perform as required by the producer. Kill fees are a legally confusing situation. If a performer flakes on a shoot, the producer will suffer damages. A kill fee is a contract term between the producer and the performer, not between the agent and the performer.

Kill fees cannot be used by an agent to punish a performer for not performing the scene. Also, a kill fee cannot be charged to a performer unless they understood before accepting the job offer that a kill fee is part of the contract for taking the job. A performer can instruct their agent not to book them for any producers that require kill fees. Also, a performer should request all information pertaining to kill fees prior to accepting any scene and that information should be in writing.

If an agent attempts to charge a performer a kill fee without having the performer accept the kill fee as a term of that employment, the agent would be violating their duty to the performer and that performer could file a Petition to Determine Controversy to have any charged kill fees refunded as well as possibly challenging the underlying contract with the agent. Thus, agents charge a kill fee at their own peril.

Cashing a Performer’s Check ?

Some agents also request that performers sign an agreement called a “Power of Attorney” so that the agent can cash and deposit into their own bank account the money paid to a performer. This is done for two reasons. The first is that the agent wants to get paid his/her agency’s fees. The second is that many producers are now refusing to pay talent directly and would rather pay the agent. I assume that production companies believe this provides them some sort of insulation against liability to the performer. This is simply not true. None the less, performers are routinely having their checks sent to their agent and then they are paid by the agent.

If you give your agent the power to cash and deposit your checks that is an individual decision. Some performers would rather have the agent take care of paying themselves. Others rather control their own finances and pay the agent later. If you do sign a “Power of Attorney” realize that you can revoke the it at any time in the case of abuse by the agent. However that must also be done in writing. I would suggest that any performer that wants to revoke this to do so in an email to their agent so if necessary the performer will have evidence of it later. If the agent continues to cash their check without written authorization they will be violating their talent agency agreement with the performer as well as possibly committing the crime of forgery.

What if an Agent Violates the Contract ?

If a performer feels as though an agent has violated the talent agency agreement they do have legal recourse. However, it is limited. A performer cannot file a lawsuit against an agent. The only legal claim that a performer can make against an agent is to file a Petition to Determine Controversy with the California Department Labor Standards and Enforcement. That department has exclusive jurisdiction to hear and decide all cases between talent and agents. On occasion, the DLSE does publish significant decisions that relate to cases between talent agents and performers. (Please see: http://www.dir.ca.gov/dlse/DLSE-TACs.htm )

A performer can file the Petition themselves, however it is better to retain a lawyer to handle any claim against a talent agent. However, be aware the process of filing the Petition to the final decision of the DLSE may be in excess of one year. The state of California’s courts and other departments are underfunded due to budget cut backs and cases now are taking much longer then usual to be resolved. It is often better for the performer to negotiate a resolution of any issue with their agent if possible.

Conclusion

Overall, it should be noted that an agent works for the performer and should be conducting business in a way that is in the best interest of his client. Often this is forgotten and at times it seems like the talent is working for the agent. Performers must remember that an agent also represents dozens of other performers with a limited staff and cannot always provide the personalized service that they wish they were receiving.

Performers must take responsibility themselves for finding work as well as promoting themselves. Hiring a publicist, using social media and attending industry functions are all ways to market their services. As the industry continues to shrink and less work is available the scenes that are remaining will go to those that work the hardest and smartest to get them.

 

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Porn 101: Choosing an Agent – Part 1

On September 26, 2012, in Legal, by adultbizlaw

Once you have made the choice to get into the adult industry the next step is making the decision as to whether you need an agent and who that agent will be. Who you choose as your agent is probably one of the most important decisions you will make as performer. Your agent will shape your career and be able to use their mainstream and industry connections to help you further your career. Your agent will be the person within the industry that you have the most contact with at first. Therefore, its important that you choose your agent carefully and research who you may be hiring to represent you. Talk to other performers about their agent(s). Twitter makes it quite easy to approach and ask other performers in the industry what they like or do not like about their agent(s). And make sure you get more then one opinion.

After choosing an agent you will have to decide whether you will relocate to Los Angeles or will you simply visit Los Angeles and work while you are there. Living in Los Angeles or traveling there will make a difference in not only how much work you can expect but also what your life will be like and how your career will proceed. From a career perspective, living in Los Angeles will probably result in more work since you can be booked at the last minute if another performer isn’t available, refuses the job offer or “no-shows.” However, living in Los Angeles is probably much more expensive than where you may live now. Also, living in Los Angeles will allow to you develop relationships, business and personal, with producers, directors and other performers that may help and assist with how your career proceeds.

I would recommend that anyone seeking an agent in Los Angeles chose only a licensed and bonded talent agent. In California, all agents are required by state law to be licensed and bonded. Also, any agent booking work for talent in California also has to be licensed and bonded in California. Even if your agent is located in New York and that agent is booking work for you in Los Angeles, they too must be licensed and bonded in California. You can check to see which agents are licensed and bonded by searching on this database -> http://www.dir.ca.gov/databases/dlselr/talag.html

Who’s Licensed & Bonded ?

According the Licensed Adult Talent Agency Trade Association ( Please see: http://www.latata.org ) the following agents are currently licensed and bonded in adult entertainment in California;

  1. LA Direct Models
  2. Spiegler Girls
  3. Type 9 Models
  4. Foxxx Modeling
  5. Adult Talent Managers
  6. Matrix Models
  7. OC Modeling
  8. World Modeling
  9. Metro Talent Management
  10. Kiser Models
  11. Vangard Talent
  12. 101 Models
  13. Motley’s Models

(Author’s Note: I represent Metro Talent Management, however I do not endorse or recommend any of the other above listed agents. The list is merely provided as a starting point for your own research. Choose the agent that will best serve your needs as an performer. If you are an agent and want to know how to become licensed and bonded in California please see http://www.dir.ca.gov/dlse/Talent_Agency_License.html )

What’s a Talent Agent Contract Look Like ?

As a licensed and bonded agent, your agent is only allowed to use a pre-approved Talent Agency Agreement. A California Labor Commissioner MUST pre-approve and stamp all talent agency contracts. A sample of the current Labor Commissioner approved contract can be found here -> Talent_Exclusive_Contract

If your agent hands you a contract that does not look the above contract, has additional pages or is not approved by the state of California Labor Commissioner that is not a valid talent-agent contract and you should not sign it. As a part of being licensed and bonded, every agent is required to have any changes or additions to the standard contract approved by the Labor Commissioner before providing it to talent to sign. Without such approval those pages or parts are not enforceable.

However, your agent may ask you to sign a model release and a 2257 document to place your photographs on their website. Those are acceptable to sign since your agent will need your agreement to start promoting your pictures on their website.

As a rule, your agent should provide you will copies of everything you have signed so make sure you receive copies for your records. If your agent does not provide a copy make sure you take a photograph of every page of the contract with your phone and keep those photos for your records in case you need them in the future.

How Much Do I Pay My Agent ?

If your agent is not licensed and bonded they cannot receive a fee for booking you work. Often people will claim to be managers and or publicist and attempt to book work for you. If they do, legally they cannot take a fee for doing so. Only licensed and bonded agents may collect a fee for booking work for you. The fees an agent may charge is not limited however the standard in the adult entertainment industry is between 10-20% of the total gross fee paid to the performer for each job secured. The amount of fees that the agent will charge you must be stated on the talent agency contract.

If you would like to research the laws pertaining to talent agents in the state of California please see -> http://www.agentassociation.com/frontdoor/agency_licensing_detail.cfm?id=572

In my next article on this subject I will discussed living in Los Angeles, what you can expect from your talent agent and what they are allowed and not allowed to do.

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By now most of the world has heard of the film “Innocence of Muslims.” The clips of this movie prompted widespread violence and anti-American demonstrations across much of the Muslim world.

Video clips of the movie were initially uploaded to YouTube in July 2012. Videos dubbed in the Arabic language were uploaded during early September 2012. On September 9, 2012, an excerpt of the YouTube video was broadcast on an Egyptian Islamist television station. Demonstrations and violent protests against the film broke out on September 11 in Egypt and Libya, and spread to other Arab and Muslim nations and some western countries. On September 11, 2012 an armed attack occurred on the U.S. diplomatic mission in Libya in which the U.S. Ambassador J. Christopher Stevens and three other Americans were killed ( Please see: http://en.wikipedia.org/wiki/Innocence_of_muslims )

Originally titled “Desert Warrior” and shot in English. The film was transformed into the “Innocence of Muslims” by dubbing over certain lines in the movie and adding references to the Prophet Muhammad. This was obviously not what the actors had intended by their participation in the production.

So what does this have to do with porn ?

On Thursday, September 20, 2012, a Los Angeles judge denied one of the movie’s stars lawsuit to remove the videos from YouTube (Please see: http://www.washingtonpost.com/national/on-faith/actress-in-anti-muslim-movie-sues-for-its-removal-online-sues-filmmaker-for-fraud/2012/09/19/694e5cd0-02b7-11e2-9132-f2750cd65f97_story.html ). Without going into the legal analysis of why the judge denied her request what is important is the fact that this occurred in the first place.

What allowed the producer to dub over the actors’ voices was the model release and the fact that there was probably a clause in that model release giving the producer the right to do whatever he/she wanted with the movie. Now, many of those involved with the production of movie or starred in the movie are receiving death threats.

However, we may never know what the model release said since the actress who filed the lawsuit, Cindy Lee Garcia, admitted she didn’t have a copy of the model release.

In the day of the smart phones with cameras there is absolutely no reason for a performer not to have a copy/photo of every page of every model release, contract and talent agency agreement they are asked to sign. Performers should simply take photographs of the documents and keep them in their phone or email the photographs to themselves, organize them and save them on their computer. You may never know when you will need such a copy as I am sure Cindy Lee Garcia now wishes she had.

My point is not that a performer’s starring role in “Babyz Got Huge Backsides” will be turned into a religious movie that sparks international controversy but rather a performer should not end up like Cindy Lee Garcia, in court fighting about a contract dispute without a copy of the contract he/she signed.

All producers should readily provide a copy of the model release and 2257 documentation for talent. If they do not it might be simply because there is no copy machine available on set. A simple photograph of the contract can achieve the same purpose. If someone does not want to provide a performer a copy of the contract, now that’s a different issue and perhaps that performer should question their motives for not giving them a copy. In those cases I would recommend that a performer not sign anything until they allowed the right to photograph all pages of the contract.

 

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Prop 35 Video: Steven Munkel Criminal Defense Attorney

On September 19, 2012, in Op-Ed, by adultbizlaw

This is an excellent explanation of how over broad and far reaching Prop 35 is. In this video, Steven Munkel with the California Attorneys for Criminal Justice (http://www.cacj.org/) explains how, under Prop 35, an 18 year old high school senior, out on a date with his 17 year old high school sweet heart may end up in jail for 15 years to life for taking a photograph of her breasts. Vote “No on Prop 35!”

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XtraNormal Video: Prop 35 Human Trafficking…

On September 6, 2012, in Op-Ed, by adultbizlaw

Parody video of a prostitute discussing Prop 35 with a Police Officer…by Norma Jean Almodovar, Executive Director of COYOTE Los Angeles. Educate yourself on Prop 35 if you are in the adult industry or an escort.

LA County Condom Vote: 62 Days

On September 5, 2012, in Op-Ed, by adultbizlaw

For the past several weeks the adult industry has been in turmoil over the outbreak of syphilis in the performer community. Many have commented on how ill timed the syphilis outbreak has been since the industry is currently in a battle over government mandated condoms being forced into use. (Note: There are other regulations that require barrier protection to be used during production of hardcore sex scenes however this article will only discuss the Ballot Measure B)

On Tuesday, November 6th voters in Los Angeles County will go to the polls and vote either for or against condoms. We are 62 days from “B-Day” and need to, as an industry, discuss this matter openly. The syphilis outbreak has certainly opened the discussion of condoms within the industry. I have talked with and have heard from more performers coming out in favor of condoms. Others, not in favor of condoms, have put forth the point that even with mandatory condoms the syphilis outbreak may not have been prevented. (Note: Syphilis may be transmitted by sores not located on the penis)

Whichever side of this debate you are on it is time to have your voice heard on this issue. My personal opinion is that performers should have the absolute right to choose to wear condoms however condoms should not be mandated by any governmental agency since I believe it violates a performer and producer’s Constitutional First Amendment rights.

Here is some information on Ballot Measure B from BallotPedia.com ( http://ballotpedia.org/wiki/index.php/Los_Angeles_Porn_Actors_Required_to_Wear_Condoms_Act,_Measure_B_%28November_2012%29 )

Michael Weinstein of the AIDS Healthcare Foundation has stated his support of the measure;

“For too long, elected officials have dodged this workplace safety issue, punting the issue from city to county to state, and as a consequence, the health and safety of these workers has been neglected, often with dire consequences.”

Diane Duke, Executive Director of the Free Speech has stated;

“History has shown us that regulating sexual behavior between consenting adults does not work. The best way to prevent the transmission of HIV and other STIs is by providing quality information and sexual health service, all of which are successfully provided through adult industry protocols and best practices. Clearly AIDS Healthcare Foundation has chosen to squander its donors’ resources by filing frivolous lawsuits and ballot initiatives instead of providing valuable resources toward the prevention and treatment of HIV.”

The AIDS Healthcare Foundation, supporters of the initiative, commissioned a poll in March 2012 to measure public support for the mandatory condom requirement. Their poll indicated that 63% of likely voters support the requirement;

Date of Poll Pollster In favor Opposed Undecided Number polled
March 16-23, 2012 Research Now 63% 37% 1,046

 

As you can see from the AHF’s poll, in March 2012, thirty-seven percent (37%) of those polled did not support condoms in porn. Whether that would ring true today might be another story. The syphilis outbreak has really brought this issue to light in the mainstream press. Obviously, much of which was not positive. The Daily Beast, The Huffington Post, LA Weekly, the LA Times and other newspapers and media outlets have all covered the issue of condoms in porn since at least last year. Most of the opinions I have read have been in support of the Ballot Measure B and to require condoms.

However there is also support in mainstream against Ballot Measure B – Reason.com, a Libertarian magazine, has come out against both the city and county laws. ( Please see; http://reason.com/blog/2012/08/21/syphilis-cases-lead-to-outbreak ) Reason.com has a large viewership and reaches millions of people.

 

Whatever your position is on the condom issue it is time to make your voice heard. There are performers and producers that prefer mandated condoms while others are against condoms under any circumstances, mandated or optional. Some producers and fans feel as though it will ruin the “fantasy” element of porn and thus not sell as well as “condomless” porn. They cite the fact that condom-free porn can be made in other states or even countries, which may put an end to the industry in Los Angeles. Some believe that if mandated condoms are required in California the industry will simply pack up and move to another state.

If you earn your income from the adult industry this issue affects you. Now is the time to speak up.

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Returning to Work ? Somethings You Should Know…

On September 3, 2012, in Op-Ed, by adultbizlaw

September 3, 2012, Labor Day, ironically, is the day that the FSC/APHSS has determined to be the best day to return adult performers to a regular production schedule, a mere 10 days after receiving a prophylactic antibiotic shot to hopefully cure the syphilis outbreak in the industry. Now that the moratorium on production has been lifted, be safe and here’s some facts that you should know before you head off to set;

  • There are 9 performers in adult confirmed positive for syphilis as of today;
  • Syphilis may take up to 90 days to detect through testing with the average range being 21 days;
  • Once you test positive for syphilis you may always test positive for syphilis;
  • If you are receiving your test results through APHSS you may not know that you are working with another performer that previously tested positive for syphilis – the APHSS database only tells you whether someone is “cleared” to work;
  • There is a disagreement between APHSS and TTS as to the proper test to use to detect syphilis;
  • APHSS states that their required and mandatory re-test can detect syphilis at 14 days while TTS states two tests are necessary to detect it this quickly.
  • Only 300 performers opted to take the antibiotic shot;
  • Despite the moratorium on production, there were some production companies and agents that continued to book scenes;
  • Some performers continued to escort during the moratorium;
  • Condoms may not protect you from catching or spreading syphilis;
  • Treatment for syphilis may make birth control pills ineffective;
  • Often those with syphilis do not show any symptoms of the disease;
  • In the primary and secondary stages syphilis is very contagious;
  • If a performer’s off camera sex partner(s) were not treated it is possible to reinfect those that were treated;
  • An antibiotic shot is not a vaccine and a performer can be reinfected quite easily;
  • If you catch syphilis, receive treatment and then get reinfected it will require 1 shot a week for 3 weeks to cure it;
  • Having an open syphilis sore makes it 2 to 5 times more likely that you can transmit/contract HIV during sex.

If there are any facts I have let off this list please feel free to add a comment to this article and I will add them to the list.

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Of UFC Fighters, Comedians, Poetry & Porn…

On September 1, 2012, in Life, by adultbizlaw

Last night Vanessa and I had the distinct pleasure of being able to spend some time over a dinner with a group of interesting and varied people. We were in Las Vegas and were able to catch Bryan Callen’s comedy show at the Paris Hotel. Afterwards, he invited us to join him, a writer and another comedian and two UFC fighters for dinner. It is always interesting being the “porn people” in a group of mainstream people. Usually, we are inundated with questions about the industry. Last night was no different, however it does give me/us a chance to ask some questions of them as well. It is always a learning experience.

Of course the Mr. Marcus and syphilis topic did come up. However, interestingly only two of the mainstream people were even aware of the situation – one of the UFC fighters and the writer. Which I suppose means that our dirty laundry so to speak hasn’t penetrated the mainstream news as far I as previously believed. However, this subject led us to a more important discussion – testing.

Performers have often compared themselves to athletes and even UFC fighters as far as their job description is involved and how performers are akin to those who fight and exchange bodily fluids in close “hand to hand,” so to speak, proximity. When I told the UFC fighters that as a practice the industry does NOT require full panel testing they were somewhat surprised since they indicated that they have to under go full panel testing as a fighter and could not imagine stepping into the Octagon without both parties being fully testing for all potential diseases that could be passed. They basically indicated they simply would not fight someone unless they were completely tested.

Then the issue of MRSA was raised. If you are unfamiliar with MRSA, that is basically a staph infection that enters the body through the exchange of bodily fluids such as mere sweat through a break in the skin, cut or abrasion. The staph bacteria is quite deadly if it enters one’s blood and difficult to treat with antibiotics. It plagues not only UFC fighters but also porn performers and any other sport where there is body to body contact. We often refer to MRSA or staph infections as a “spider bite.” Apparently there is a special spider that only lives in Chatsworth, California that specifically targets performers and always seems to bite on their victim’s ass region. We do not talk about MRSA that much in the adult industry but it is certainly a topic for discussion on its own. I have personally know numerous performers that contracted it, with one even requiring hospitalization to treat it.

We then moved on from syphilis, testing and MRSA to racism. One of the fighters asked if it were true that some of the women in the industry charged more to perform with a black man than a white one. They were shocked by the answer. Both fighters could not fathom the idea of asking for a higher fight fee because he was fighting someone of a particular race. This notion was so foreign to them it appeared we as an industry were still operating in the dark ages, no pun intended. While they noted there is some racism in the UFC, they for the most part, treat each other like family.

They had to admit that while they are fierce and combative in the Octagon and during practice, for the most part they all have an extreme amount of respect for themselves, each other and the UFC. I got the impression that the both of them truly loved what they did and felt blessed to be apart of it. They are what we used to be – a family. They cared so much for each other they had to admit it was difficult to watch their friend’s fights.

I also got that impression from the comedians and writers in the group. The writer, who has written several movies and TV series, said that whenever he has a chance he always try to write parts into his projects for his friends. The main characters are always cast by the production company but for the lesser parts he has the ability to cast and clearly write for. The other comedian in the group indicated that she has opened up numerous times for Bryan through-out his career. Knowing other comedians I can say that is true amongst most of them. If you ever watch a comedy movie you will always see several comedians in the same movie. Once one comic makes it he/she tries to take his/her friends with them.

To a large extent, that is how the adult industry use to be. A small group of people that knew each other, cared for each other and helped each other when we could. They might not have always liked one another but they stood together. Whether it was against governmental intrusion or attack from the mainstream. I have only been in adult for 8 years and I only caught the tail-end of that period. Vanessa who has been in adult for 16 years remembers it well. It was a much different industry then.

Porn has turned from mom & pop producers to “big international business” with much of the control of the Los Angeles based industry  coming from outside the United States. We are no longer a local industry but instead a part of a global movement. A movement that wants to vertically integrate all aspects of porn, from talent to production to distribution, including hosting, traffic, bandwith and advertising. A one stop shop that some might call a monopoly. Los Angeles may become nothing more than a cog in the wheel of a much larger global “porn” machine.

Perhaps Mr. Marcus’s decision to alter his test was more then just a lesson in paper vs. database or APHSS vs. TTS. Perhaps it was a lesson in what the future holds for porn in the United States. I guess the time has come when people have to decide for themselves which road they want to go down. Jessica Drake probably said it best when she blamed greed as the cause of this situation. It is easy to choose a fast money over long money. It is more difficult to choose money over health. If the those in the industry do not respect themselves, their co-workers and their health there simply will not be an industry in Los Angeles to work in. The hardest decision is to chose family over personal financial interests. I suggest the road not taken…

The Road Not Taken.. By Robert Frost

TWO roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;

Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same,

And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I—
I took the one less traveled by,
And that has made all the difference.

 

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Is There a Hole in APHSS ?

On August 27, 2012, in Legal, by adultbizlaw

The syphilis outbreak in the adult industry has brought to the forefront a highly contested debate as to testing for sexually transmitted diseases. Currently there is a debate as to whether there should be one testing facility or multiple facilities. There is also a debate as to what the proper protocols should be for informing performers and their sex partners of a possible outbreak. There is yet another debate as to whether what exactly should a performer know about his/her costar on set in regards to their medical history.

Background…

The main players in this debate are the testing facilities under the umbrella known as the Adult Production Health & Safety Service (APHSS https://aphss.org/ ). APHSS is the brainchild of the Free Speech Coalition (FSC http://www.freespeechcoalition.com/ ) and several major content production studios that openly support the FSC, most notably Manwin, Evil Angel, Kink.com, Girlfriend Films, Gamma Entertainment and Vivid Entertainment. One of those APHSS testing facilities is Cutting Edge Testing, which is owned and operated by Dr. Miao, and is one of the main testing facilities in Los Angeles for the industry. (CET http://cuttingedgetesting.com/ ).

On the other side of the equation is Talent Testing Services (TTS http://www.talenttestingservice.com/ ), a testing laboratory not a medical clinic, which appears to be supported by LATATA ( http://latata.org/ ). The Licensed Adult Talent Agency Trade Association is comprised of several of the licensed and bonded adult talent agents within the United States. Further, TTS is not part of the APHSS system and it appears does not wish to be. TTS is not a medical facility it is a laboratory that performs testing for sexually transmitted diseases.

APHSS’s inception is rather recent, only occurring after Adult Industry Medical (AIM) closed and filed for bankruptcy within the last year. TTS has been in operation for several years.

As for adult performers, they seem to be split as to which testing facility they prefer. Some prefer CET and the APHSS system while others prefer TTS.

Medical History within the APHSS Database…

Without getting into extreme detail as to either service or all that either service offers, since that would require pages of analysis, I would like to confine my discussion to one potential problem with the APHSS database I have been made aware of by seasoned veteran performers.

Since I prefaced this article with the words “hotly debated” let me state this for my readers. I do not have a financial interest in either testing facility. I do not have a preference as to either testing facility. I am not a performer nor a producer and therefore do not have a “dog in this hunt” so to speak. I am neutral as to both facilities so please do not attack me believing this article is merely an attack on APHSS. It is not. It is merely meant to inform and educate based on a potential issue I see with the way medical history is handled in the APHSS system. My goal is that this issue can be resolved and the database improved for the health, safety and knowledge of the talent.

After a discussion on Twitter with Fabian Thylmann it became apparent to this writer that there is a potential hole in the APHSS database as to the past medical history of performers. I have come to this understanding after the conversation with Fabian Thylmann as well as personally attending the APHSS presentation in July conducted by the FSC and Dr. Maio. I will limit my discussion to just one issue. That issue is how past medical history is handled by APHSS.

From my understanding the performers in the APHSS database will be either “cleared” or “not cleared” to work under the APHSS database and call in system. Which means that only the most recent test results will be available to be reported and only in the way proscribed. Which, for legal purposes, is a good idea with the issue of medical privacy being important to so many. As a lawyer, I like the APHSS database. It leaves little room for violation of medical privacy.

However, from my discussions with some veteran performers it appears that there are a contingent of them that would like to know more about their on-screen partner’s medical history, including whether they have tested for syphilis in the past. While normally I would disagree with that position as for chlamydia and gonorrhea I do see that information as being important for syphilis. Syphilis is an infection that can be easily cured but may always result in some level of a positive finding on a sexual transmitted disease test result, depending on the test used. (Please see http://www2a.cdc.gov/stdtraining/self-study/syphilis/syphilis10.asp ). Therefore, I can certainly see a performer’s right to make an informed decision. While medically it may be impossible to transmit the disease once a performer as undergone treatment some performers feel as though that they would like to know that information prior to performing in a scene with previously positive performer. A balance between privacy and informed decisions must be made.

From what I was told by Fabian Thylmann of Manwin, a performer who has tested positive for syphilis will be cleared for work within the APHSS database once they have been examined and cleared by an APHSS physician. Therefore, while we do not know at this time who besides Mr. Marcus may have it,  based on Fabian Thylmann’s statement it is possible that at some future point a performer that had syphilis and received treatment will be actively performing again. With this potential hole in the APHSS system anyone working with that performer would not even know about the past positive history for syphilis.

While this might not present much stress for some performers it may for others. I discussed this issue with a male performer that indicated that he did not believe that working with a performer who had previously tested positive for syphilis but is now cured posed much of a risk. However, he did indicate that information would be desirable in order to make an informed decision. Performers should be able to assess risk and balance such concerns themselves.

I had suggested to Fabian Thylmann of Manwin that the APHSS database be changed so that it would instead read “cleared for work” however with a notation. That notation in the database could be an indication that the other performer may have tested positive for syphilis within the last 30, 60, 90 or 180 days depending on long ago the past the positive test occurred. That may allow a performer to make a more informed decision as to who their screen partners will be.

This hole in the database may also become more important in the future if testing is going to expand past the basic HIV, chlamydia, gonorrhea and now syphilis panel. If the industry adds herpes, hepatitis and human papillomavirus to the regular testing panel how is the APHSS database set up to handle those types of results. Are all performers that test positive for herpes going to be “cleared to work” without a notation that they carry the virus ? As with syphilis is an APHSS doctor going to examine them for the presence of an outbreak before clearing the performer to work ? How often will this exam be necessary ?

Will there be a notation in the APHSS database for those performers that have had a hepatitis B vaccination ? Will a performer know if they are working with someone else who has been vaccinated ?

Since this database is being touted as the database for the entire industry, lets not forget the gay side of production as well. There are gay production companies that allow HIV positive performers to work with other HIV positive performers as well as HIV negative performers ( See http://www.insidesocal.com/outinthe562/2010/11/hiv-positive-gay-porn-actor-signs-exclusive-contract.html ). Some of those studios even match performers with different strains of HIV together. How would this particular situation be handled by the APHSS database and call in system ? Would an HIV positive performer working for a gay production studio “not be cleared for work” or would they. Would a notation be required on that performer’s database file ? Or is APHSS simply not going to allow gay performers and production companies into their database ? That cannot be possible since APHSS has under it’s umbrella of testing facilities a clinic located in San Francisco. There are also straight porn production companies such as Naughty America that are now also producing gay content ( See http://queermenow.net/blog/naughty-america-presents-3-new-gay-porn-sites/ )

Needless to say, the syphilis outbreak has caused numerous questions to be asked in regards to the current state of testing and performer health and safety as well as the mandatory use of condoms now required by state law and Los Angeles city ordinance. Without doubt this issue will continue to be debated, lines will be drawn and sides will be taken. Let us not forget those in the middle of the fire, the performers who risk their health every time they step on set to perform.

Knowledge is power. If you believe I am mistaken in the way medical history will be handled by the APHSS database I invite you to post a comment. Any inaccuracies will be corrected.

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