The Problem with Producing Porn Outside California…

On September 21, 2012, in Legal, by adultbizlaw

torncontract 300x200 The Problem with Producing Porn Outside California...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.

10 Responses to The Problem with Producing Porn Outside California…

  1. Michael Whiteacre says:

    And with the stroke of a pen those civil codes in states like Nevada, Louisiana, Oregon and Florida (which are all vocally eager to expand their share of US production and ancillary business growth) could be amended to include adult productions as part of a pro-business, economic growth bill.

    Nevada’s prostitution statute is also extremely similar to California’s, which was at issue in the Freeman case. I’m willing to bet that NV courts would go the way of Freeman if given the opportunity. Arizona courts cite its reasoning favorably — although I’ll admit I haven’t looked at recent NV case law.

    You also mentioned the Las Vegas/Clark County exception. Nevada is a natural choice in terms of proximity and its comfort with “vice” — moreover, NV-OSHA is very weak compared to the gonzo Cal-OSHA. Nevada is also amenable to licensing schemes (such as those for brothels and prostitutes) which would take adult productions out from under NV-OSHA’s thumb.

  2. adultbizlaw says:

    Agreed, but until those other 48 states amend their prostitution/pandering laws it remains a legal issue for those producers outside California or New Hampshire.

    The US Supreme Court had a chance to review and decide this issue when Freeman went up but they denied the case. I suppose they didnt want to set the precedent of legalizing porn production through-out the US.

  3. Steven Marlow says:

    The upcoming vote on measure B has generated a lot of debate on the required usage of condoms in heterosexual videos produced in porn valley. From prolonged exposure to toxins based on usage patterns even the manufactures would never test at too the statistical ineffectiveness at preventing the spread of STD’s (which is the claimed “thrust” of the new law). Even if the law is passed there will be questions as to when a condom should be worn. Oral sex? Hand Domination? Tit fucking? And, will producers be required to have “someone of authority” on set at all time; and who pays for that protection?

    As a side issue, the almost flippant remarks about “playing in someone else’s yard” or “just moving the industry” have brought about interesting discussions that compare the legal protection, thru case law, that the porn industry gets in the States of California and New Hampshire (who would have thought) vs the great legal unknowns that await any content producer that dares to leave the safety of the sandbox. Indeed, what DOES prevent companies from doing business in other states?

    To be clear, adult content of a sexual nature IS being produced around the country, but in the context of the article above, we will limit it to some guy having sex with some woman in front of a video camera AND in which money has been exchanged. The core of the debate then becomes: is the exchange of money related to the sexual activity, and thus, an illegal act of prostitution under any of the remaining 48 States laws; or does the monies serve as legal compensation by the “filmer” for the rights to use and disseminate any and all video and imagery, for whatever financial gain, without being required to make further concessions.

    Claims made about a models release having shaky or questionable legal footing is based on the assumption that a video recording will be cited in court as a form of prostitution. No, more than that, it’s the belief of some that one must be convicted of the crime of prostitution rather than merely being charged of it before said model release become invalid. Following that point, in the State of Florida, having been convicted of engaging in prostitution the “model” has some legal grounds to sue for all income derived from the video (though the author of the article fails to make the distinction between pimp and producer under Florida case law).

    California Civil Code section 3344 was cited but serves as nothing more than background information related too a producers failure to secure a model release or provide compensation under California law. Sadly, the original author continues to post impressive but ultimately irrelevant fluff that is supposed to demonstrate how Florida law is somehow tougher on adult content production than other states. Only savvy readers will notice the disclaimer buried in the text which states “the production of hardcore pornography is not excluded specifically in the definition,” meaning that Florida law does not include the production of adult content with it’s definition of prostitution.

    The leap from “hardcore pornography production is still considered prostitution and pandering” too “it must be assumed to be included” is vast. Such statements about the lack of actual case law (previous litigation regarding adult content production) as being equal to actual illegal activity, or at least trying to pass along the implication of unlawful activity as an authority on the subject comes-off as being a sheep in wolfs clothing. Pro-production for L. A. based companies (that the author may be paid to represent) vs anti-production for well established companies in Florida? Shouldn’t “industry knowledge” extend beyond the boundaries of ones legal practice?

    I think the article attempts to show that many of the common practices within the industry lack the legal precedent to effectively defend ones self in a court of law. Should certain activities be challenged, only two States have already seen such legal battles play out and won in favor of industry. I would offer that 2257 provides enough of a legal distinction, at the federal level, between being paid for video production work involving sexual activity and prostitution that involves a coercive element. The real gray area would be an escort, a sole-proprietor prostitute working without a coercive element, providing a video souvenir of her intimate encounter.

  4. Marion Paige says:

    We cited the Georgetown Law Journal article some 5 years ago when the Luzerne County Pennsylvania District Attorney’s Office was claimin in court in a death penalty murder case that a gay porn performer was “contractually bound” to Bryan Kocis’ Cobra Video.

    Given the Luzerne County Pennsylania DA’s repeated claims about deceased Bryan Kocis’s porn production being legal and its repeated claims that a porn performer could be legally bound to Kocis’ gay porn production company (that Kocis operated out of his house in a residential district in Luzerne County), maybe you should add LUZERNE COUNTY PENNSYLVANIA to the list of places in America where it is actually legal to produce porn.

    BTW, the GeorgeTown Law Journal article actually specifically refers to a lawsuit Bryan Kocis filed in Federal Court seeking to enforce a porn performance contract against on of his models. The Law Journal article notes that NOT EVEN CALIFORNIA COURTs have recognized porn performer contracts as legal contracts. Meaning that,

    While CA has specifically decriminalized the production of porn, it has not in fact not totally held that performing in porn is not prostitution – as contracts between performers and porn companies are still not recogizned as legal contracts which can be enforced in a CA court.

    • adultbizlaw says:

      Thank you for that information. I am not sure that the Luzerne County District Attorney’s office can make production legal by way of their endorsement but I suppose that at least it stands for the proposition that porn producers in Luzerne County might not be criminally prosecuted.

      Understand my article is not a prohibition on producing in other states. It is commentary on what issues a producer may face if the model release is challenged in court. I have defended such cases.

      As you note. the enforceability issue has yet to be conclusively decided by a California appellate court. However from my experience of litigating adult entertainment cases in Los Angeles I have yet to have a judge even comment on this issue. I would say that more so then any other locality a producer stands on much more solid ground in California and New Hampshire than any other state in regards to their contracts.

      • Marion Paige says:

        Thank you for publishing this article. My comments were intended to show how outrageous I think it was for a lawyer (an assistant district attorney no less) to claim in court (in a death penalty murder case) that a porn performer was “contractually bound” to a guy producing gay porn out of the basement of his house in The Commonwealth of Pennsylvania.

  5. [...] located in Woodland Hills, California and also runs the Adultbizlaw.com. website, post his article, “The Problem with Producing Porn Outside of California…” on Friday September [...]

  6. Seaguy says:

    Arizona seems to have a few hardcore producers headquartered there not sure if they shoot there though.

    • adultbizlaw says:

      And the Maricopa County Attorney threaten them with prosecution…

      http://www.kpho.com/story/17148750/porn-industry-would-break-az-law-montgomery-claims

      Nothing ever came of it, but it here’s what he said…

      “Furthermore,” Montgomery said in an official statement, “anyone involved in other aspects of producing pornographic movies, including soliciting individuals to appear, collecting a fee from the monies received by individuals solicited to appear by virtue of an agent relationship, transporting individuals from California to Arizona for the purpose of appearing in a pornographic movie, and/or establishing a venue for the filming and/or production of pornographic movies may be guilty of committing one or several felonies in the state of Arizona.”

  7. Cadrac says:

    Actually, neither the California decision nor the New Hampshire decision were decided solely on First Amendment grounds. In the case of the California decision, the California court ruled primarily on a statutory construction basis (i.e. the law as written didn’t apply to the case in question) and said that, even if that were not the case, then First Amendment protections would apply. New Hampshire, on the other hand, didn’t base their ruling on the First Amendment at all. Rather, their ruling was based on the even more protective free speech guarantees in the New Hampshire constitution.

    These differences are important because rulings relying on the First Amendment are subject to being overturned by the US Supreme Court deciding that the First Amendment doesn’t apply to the case after all. However, even if that were to happen, California would still have it’s statutory construction ruling to uphold its decision. And in New Hampshire’s case, the New Hampshire Supreme Court would just say that while the rest of the country might not enjoy those rights, those in New Hampshire still have such freedoms guaranteed by the New Hampshire Constitution.

    Since the point of a First Amendment argument would be the supposition that a prostitution or pandering statute that was sufficiently broad as to include the production of pornography would violate constitutional rights of free expression–the US Supreme Court having already ruled that the production of motion pictures, including pornographic ones so long as they are not obscene, is protected speech under the First Amendment–it’s a case of saying that the act wasn’t a crime because the law was unconstitutional. Whereas California said while they do believe it was indeed unconstitutional to attempt to apply the law in that manner, it was far more important that the law itself didn’t actually apply in that way. New Hampshire’s Supreme Court, on the other hand, never even bothered to reference the US Constitution since applying the New Hampshire statute in that manner would be a violation of New Hampshire’s own Constitution, of which they are the final arbitrator.

    Which, in my opinion, would actually make New Hampshire a more secure location to produce porn, since California could always change its laws, but it would take a constitutional amendment to render it illegal in New Hampshire. Live Free or Die at its finest. New Hampshire very much believes in “Don’t tell me what I can or can’t do.” Is it any wonder the Free Staters chose the place? I’ve lived in both California and New Hampshire and while I love the SF Bay Area, there are certain aspects of my home state, most especially the atmosphere of freedom and lack of taxation, that I still greatly admire. Of course, what else should you expect from a place that was settled by people trying to escape the repressive nature of the Puritans and their Massachusetts Bay Colony?

    It’s unlikely the US Supreme court would rule the First Amendment didn’t apply, but with an increasingly conservative bench, you never know. So it’s good to know that neither of these precedents depends on a First Amendment argument to stand.

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