The Problem with Producing Porn Outside California…

On September 21, 2012, in Legal, by adultbizlaw

Yesterday the “No on Government Waste Committee” held a press conference at Manwin’s headquarters in Burbank ( http://www.xbiz.com/news/154272 ). During the press conference Valley Industry Commerce Association President Stuart Waldman (who is an attorney) made the following quote;

“This is a Los Angeles County ordinance. What would prevent companies from moving to another county to produce films — Ventura County, San Bernardino County?  What would keep them from following their brethren to Nevada, Florida or wherever else production companies are doing business? Some states would provide economic incentives for the industry to relocate.

While it is possible that the industry may relocate to a different county in California there are problems with the industry relocating to another state. Currently, the production of hardcore pornography is only legally protected in two states, California and New Hampshire ( Please see: http://en.wikipedia.org/wiki/California_v._Freeman and http://www.citmedialaw.org/blog/2008/nh-supreme-court-rules-porn-not-prostitution ). Those are the only two states that have state Supreme Court cases that have held that the production of pornography is NOT prostitution and/or pandering and is rather a First Amendment free speech right. This is why the adult entertainment industry is a legal and recognized business within California.

In all other states hardcore pornography production is a tricky legal situation. Not only because of possible criminal penalties or prosecution but because of the validity of the model releases. One of the standard contracts in adult entertainment is the model release. It’s the contract that every performer is required to sign to release their rights to the producer to forever use their images and videos for all purposes all over the world. Basically, the model release is the foundation of the entire industry. A signed model release by the performers allow the release of the scene or movie to the public for sale.

The issue to be concerned with as a producer is the enforceability of a hardcore model release. If a company produces hardcore pornography outside of California the model release might not be valid under the theory of “lawful object.” Meaning that the basis of the contract must be a lawful activity. It is clear that two people could not contract for the sale of a kilo of cocaine since the distribution of cocaine is an illegal activity. No court in the United States would enforce a contract for the distribution of cocaine.

At the heart of every hardcore pornography model release is the exchange of sex for money. While some may claim that the contract is actually for a release of rights that is not a complete view of the model release contract in regards to hardcore pornography production. For the most part, courts do not allow the exchange of sex for money to be the basis of contract. It is all most all states it is legally clear that sex cannot be the consideration of a contract. Besides hardcore pornography in California another exception to this rule is legal prostitution only in Nevada brothels (except in Clark County which includes Las Vegas).

Any contract that is based on an illegal activity would be considered void and unenforceable in a court. In other words – useless. That might leave a producer open to numerous lawsuits and costs for defending such. Without a valid model release that a court is willing to enforce the producer is left in the situation of not having a model release at all ( Please see: http://georgetownlawjournal.org/articles/sexual-reconsideration-adult-entertainment-contracts-and-the-problem-of-enforceability/ )

Without a model release the producer and the performer basically become partners in the profits of the scene. As a partner, the producer may then need to pay profits to the model instead of just a one time fee. In every model release is a paragraph that waives the performer’s rights to publicity. A performer’s right to publicity is an inherent right. Everyone has the right to determine how and for what purposes our image, likeness and names are used for commercial purposes. Without a release no one can use someone’s image to sell a product, good or service without paying that person a percentage of the profit made. That is exactly what a model release does. It says for $1000.00 (or whatever the scene rate may be) that the producer has the right to do whatever he/she wants with a performer’s image, likeness or name for whatever purpose they want to. Without that paragraph the producer then has to pay to the performer a percentage of profit.

In California this theory is set out in California Civil Code section 3344;

(a)Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

Many states have statutes similar to the California Civil Code section 3344. Florida, Illinois, Hawaii and Minnesota have even a more restrictive law to the production of hardcore pornography then most other states. In Florida, prostitutes are legally allowed to sue their pimps for profits of their labor. In Florida hardcore pornography production is still considered prostitution and pandering. For example, Florida statute section 796.07 defines prostitution as;

796.07 Prohibiting prostitution, etc.; evidence; penalties; definitions.—

(1) As used in this section:

(a) “Prostitution” means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

The production of hardcore pornography is not excluded specifically in the definition and therefore it must be assumed to be included. Even more damaging to hardcore production in Florida is the actual language of section 796.09 which states that the exploitation of a pornographic performance is actual coercion under the law;

796.09: Coercion; civil cause of action; evidence; defenses; attorney’s fees(1) A person has a cause of action for compensatory and punitive damages against:

(a) A person who coerced that person into prostitution;

(b) A person who coerces that person to remain in prostitution; or

(c) A person who uses coercion to collect or receive any part of that person’s earnings derived from prostitution.

(2) As used in this section, the term “prostitution” has the same meaning as in s. 796.07.

(3) As used in this section, the term “coercion” means any practice of domination, restraint, or inducement for the purpose of or with the reasonably foreseeable effect of causing another person to engage in or remain in prostitution or to relinquish earnings derived from prostitution, and includes, but is not limited to:

(a) Physical force or threats of physical force.

(b) Physical or mental torture.

(c) Kidnapping.

(d) Blackmail.

(e) Extortion or claims of indebtedness.

(f) Threat of legal complaint or report of delinquency.

(g) Threat to interfere with parental rights or responsibilities, whether by judicial or administrative action or otherwise.

(h) Promise of legal benefit.

(i) Promise of greater financial rewards.

(j) Promise of marriage.

(k) Restraint of speech or communication with others.

(l) Exploitation of a condition of developmental disability, cognitive limitation, affective disorder, or substance dependency.

(m) Exploitation of victimization by sexual abuse.

(n) Exploitation of pornographic performance.

(o) Exploitation of human needs for food, shelter, safety, or affection.

(4) In the course of litigation under this section, any transaction about which a plaintiff testifies or produces evidence does not subject such plaintiff to criminal prosecution or any penalty or forfeiture. Further, any testimony or evidence, documentary or otherwise, or information directly or indirectly derived from such testimony or evidence which is given or produced by a plaintiff or a witness for a plaintiff shall not be used against these persons in any other investigation or proceeding. Such testimony or evidence, however, may be used against a plaintiff or a witness for a plaintiff upon any criminal investigation or proceeding for perjury committed while giving such testimony or producing such evidence.

(5) It does not constitute a defense to a complaint under this section that:

(a) The plaintiff was paid or otherwise compensated for acts of prostitution;

(b) The plaintiff engaged in acts of prostitution prior to any involvement with the defendant; or

(c) The plaintiff made no attempt to escape, flee, or otherwise terminate contact with the defendant.

(6) Evidence of convictions for prostitution or prostitution-related offenses are inadmissible in a proceeding brought under this section for purposes of attacking the plaintiff’s credibility.

(7) In any action brought under this section, the court, in its discretion, may award prevailing plaintiffs reasonable attorney’s fees and costs.

Therefore in Florida, producers do not only have to worry about the validity of their model releases but Florida specifically has created a law that can be applied to performers suing producers for profits. And a producer will not be able to use the fact that the performer did the scene willingly, that the performer actually worked for that producer before and did everything in the scene voluntarily and with consent. The signed model release may even be excluded as evidence from the trial. Those claims are not even a valid defense to this law. And ultimately not only would the producer have to pay the performer profits the producer would also have to pay the performer’s attorney’s fees outside the award to the performer.

While it may be desirable, in light of the condom laws in California, for the industry to move to a different state such as Nevada, Florida or Arizona doing so comes with much risks to the producers.

Untitled Document