Porn 101: Choosing Your Pornstar Name

This is the first in a series of articles for those that are considering getting into the adult industry as a performer. Every year I travel the country speaking at several Exxxotica Expos wherein I do a series of seminars called “Breaking into The Biz.” One of the most asked questions I receive from both men and women is “how do I get into porn ?” Before someone can get into porn, they need to choose an appropriate stage name for themselves. Most people think that picking a porn name is rather easy…it’s the street they lived on as a kid and the name of their first pet. Unfortunately, that’s not so. Choosing a great stage name may require hours of research.

Before someone can enter the industry they need a stage name. I strongly suggest that you do not allow anyone else to “name you.” Do not let your boyfriend/girlfriend, agent, manager or a friend choose your stage name. By picking your name that gives them the right to own your name. It’s called intellectual property. If they choose it they own it.

Do not choose a name that contains popular brand names or the trademarks of companies. Forget Paris, Mercedes, Lexus, Dallas or any other geographical name or trademark. Not only is it problematic and opens you to a legal challenge by that company if you use an established trademark but no one will ever find you on the Internet when they do a Google search for your website. There are already hundreds, if not thousands, of websites that discuss Lexus and Mercedes Benz automobiles as well as thousands of travel sites discussing how lovely Paris is in the spring.

Do not choose a variation of your favorite pornstar’s name. Even if your boyfriend tells you how much your blow job techniques remind him of Susie Suckems blow job techniques do not name yourself Bobbi Suckems. As a performer you want to stand alone and not be confused with another performer in the industry. How successful would a singer be if she decided to call herself “Sher” or “Misses Gaga?” No one does that in mainstream entertainment and you shouldn’t do it in porn.

I understand it may be impossible to know the name of every pornstar that has preceded you in the industry but you have a great research tool to investigate if someone else has the same stage name that you want. Mainstream has IMDB.com and porn has IAFD.com ( http://www.iafd.com ). IAFD.com is a pornstar database of more than 100,000 performers. And yes, you read that correctly, they have a database of more than 100,000 porn performers. You probably didn’t realize that there have been that many porn performers in the history of porn. Obviously, with that many performers you probably wont be able to find a completely unique stage name but you do want to stay away from a performer name that exactly matches another performer’s name.

Once you have researched your stage name on IAFD.com it’s now time to see if someone has filed a trademark on your name already. It’s fairly easy to search the United State Trademark Database online ( http://www.uspto.gov/trademarks/index.jsp ). Just simply go to the search function and see if your name matches a previously registered trademark. If it does then you should go back to IAFD.com and begin the process over again.

Now that your name has cleared the IAFD.com and trademark search its now time to see if your name is available as a domain name. It’s rather useless to select a stage name unless you can own your own little piece of the Internet. It is vital that you can own your domain name and all the variations of your domain name. Which probably means you should not choose a name that is easy misspelled. Avoid names such as Jenny since it can be spelled Jeni, Jenni, Jenny, Jeny or even Jennie. A stage name using Jenny would require you to purchase four times the amount of domain names since you will have to buy every misspelling of your name. And if you combine a first name such as Jenny with a last name of Jameson – well now you will be purchasing domain names until you are broke since Jameson can be spelled with an “e” or an “i” and now you have to purchase every variation of both spellings. At this point you might be saying “why do I have to buy all those domain names if my name is going to be Jenny Jamison.” The answer is simply, if you don’t buy them other people will and they will set up websites with your name and make money off you and you will not see a dime of the money they make.

Most performers do not realize that when you start performing in scenes you will be signing a contract called a model release which will give the person or company paying you for your scene the right to use your photographs and videos on a website to promote the content. If you are just your average run of the mill porn performer, your scene will probably just be used on the company’s website. However, if you become a “pornstar” it is very likely that the company will buy a domain name with your stage name in it and start a website about you. If they have more than a couple of your scenes they can start a membership site and charge for it. And if you become a “big name pornstar” that company will probably call other studios and purchase the scenes they have shot with you in it to add to the website. Which means they are making money from your name, your hard work and you are not going to get a share of the profits.

To research whether your chosen stage name is available as a domain name it is as easy as doing a search on Go Daddy ( http://www.godaddy.com ). Once you determine that it is available – buy it. Do not wait, do not come back to it later, do not discuss your stage name with anyone. I have seen boyfriends, agents and managers steal the domain names of performers. Once you have spent hours researching your stage and domain name you should not discuss it any further with anyone. And you should not just purchase the .COM – you should purchase as many of the “dots” that you can afford. I would strongly suggest that you purchase the .NET, .ORG, .ME, .BIZ, .INFO, .MOBI, .TV as well. Obviously, if the domain name is not available for your stage name then you need to go back to IAFD.com and begin your research all over again until you can chose a stage name that passes all of the tests.

If you have the funds you may also want to consider buying other customary adult industry variations of your stage name. For example, if your stage name is Suzie Suckems you may want to consider purchasing ClubSuzie.com, ClubSuzieSuckems.com as well as SuzieSuckemsXXX.com. Finally, you may also want to purchase SuzieSuckemsBlog.com. These are all popular website variations that adult performers use in addition to their regular domain names. It would be cost prohibitive to buy every possible variation of your domain name but you do want to own as many as you can possibly afford. Not only will this prevent others from owning them but it will also increase the amount of traffic that will flow to your website once you launch it.

Please be aware, if you do not purchase your domain names before you start performing I can assure you that they will not be available once you do. There are people and companies whose sole business is to buy and sell domain names. Once a new performer enters the industry and starts performing those people will often purchase domain names of performers just so they can sell it back to the performer for substantially more than what the domain could have been purchased for by the performer. Trying to legally fight to get the domain name back is possible but still much more expensive then buying it from Go Daddy.

Next lesson in Porn 101 -> Choosing an Agent !

August 14, 2012 0

Paying Talent on Time: What Talent, Producers and Agents Need to Know

One of the most confusing situations that confronts both talent and producers is when should talent be paid. Some producers are almost religious when it comes to “same day pay” while others place talent on payroll and may not pay for up to a month. Often, talent will contact my office with complaints of either not being paid timely and in rare occasions, when producer’s checks actually do not clear and “bounce.” This article will cover what talent, producers and agents have to be aware of in regards to when is payment due to talent. In California, there are serious penalties for failure to timely pay talent for work performed

Special attention must be paid to the California Labor Code when discussing work related payments. According to the Labor Code section 207, employers must establish regular paydays and post notices of when such days are. For example, if your production company has office staff and or production staff that are paid on the 15th and 30th of each month, these days will be presumed to be your regular pay schedule. Even though performers may not be part of your usual payroll schedule the 15th and 30th may be deemed to be your required days for paying talent, if you do not pay talent the same day and instead pay talent through a payroll service. For example, if talent works for your production company on August 28th and your usual pay date is the 30th you may be required to pay talent on the same day as you pay the rest of your employees.

If you are a small producer and do not have a regular payroll schedule to pay other employees then you must look to California Labor Code section 204 as to when talent must be paid. For wages earned between the 1st and the 15th of the month you must pay talent for their work no later then the 26th day of the same month. If the wages are earned between the 16th and the 31st of the month, wages must be paid no later then 10th day of the following month. For instance if talent works for you on August 8, 2012 that talent must be paid no later then August 26, 2012. If the shoot occurred on August 30, 2012 then talent must be paid no later then September 10, 2012. However, “payroll” does not mean that a producer get two weeks to pay talent. It actually means that a producer utilizes a real payroll service and other employees are being paid on the same date and that the producer is paying payroll taxes on the talent’s earnings. Simply stated, a producer cannot pay talent two weeks late and simply write a check for the full amount of the scene without deducting and paying taxes.

This information may come as a surprise to some of those that are reading this article. What will be more shocking is what are the penalties imposed by not following these payment schedules or in case your check bounces even if you pay the same day.

Failure to timely pay wages is not a situation you want to find yourself in as a producer. The penalty for such is that the talent’s right to payment at their rate continues for up to 30 days. Allow me to rephrase that, a producer will be required to pay the talent everyday for up 30 days as a penalty. For example, if talent performed for you on August 30, 2012, wages would have to be paid by September 10, 2012. If you did not pay talent by that date, that talent would be entitled to a penalty of whatever their rate was for the shoot (for example $1000) for each day payment was made late. Under Labor Code section 203 and 203.1 (in case of a check that does not clear) if you did not pay talent until September 30th you can be hit with a $20,000.00 penalty by the California Labor Commissioner for paying 20 days late. The penalty is $1000.00 per day (or whatever the talent rate is for that shoot) for up to and including the 30th day. Obviously, this is an extreme and severe penalty but one is that is often imposed and maintained by the Labor Commissioner. Even if you agree to settle with talent for less then the full penalty you will have to agree to send all payments to the Labor Commissioner’s Office who in turn will send it to the performer. Meaning there is no getting out of the this situation.

Further, it should be noted that nothing in the Labor Code has anything to do with whether a model release was signed nor can the Labor Code be contravened through a written agreement with talent. Simply put a producer cannot add a clause to a model release agreement indicating that they have up to six months to pay wages. Lastly, in addition to what is awarded to talent by the Labor Commissioner for unpaid wages, penalties and interest, the attorney representing talent will also be entitled to attorney’s fees.

Special attention should be paid by agents to this situation as well. It is often practice and custom within the adult industry for the agents to ask producers to pay them directly and then in turn the agent pays the talent. By doing this, the agent may unwittingly make themselves the employer in this matter and be subject to the same penalties for failure to pay talent timely. In California, there is a general legal conclusion that employment follows wages, which means if you pay the wages you may deemed to be the employer. Or in the alternative, if you are a producer and you pay the agent instead of the talent directly you may be in violation of the Labor Code if the Labor Commissioner determines you should have paid talent directly and did not and the agent failed to pay talent timely.

In conclusion, the payment of wages to talent is still a relatively untested area of law in the adult industry that is rife with potential pitfalls for the unwary and uninformed producer and agent. It is strongly recommended that you review your wage payment policies with a lawyer that is well versed in employment law and the Labor Code.

UPDATE:

I wanted to also add in some relevant case law and a brief synopsis of such so anyone reading this can realize how it applies directly to the adult industry.

In Smith v. L’Oreal USA, Inc. (2006) 39 Cal. 4th 77, the California Supreme Court ruled directly on this issue. Ms. Amanda Smith worked for L’Oreal as a “hair model” at an upcoming L’Oreal hair show. L’Oreal agreed to pay her $500 for one day’s work at the show. Ms. Smith worked at the show, where her hair was colored and styled, and she then walked a runway a few times. Ms. Smith stayed at the show until she was told she could leave. L’Oreal did not immediately pay her the $ 500 in wages it owed her, but waited over two months to do so.

Ms. Smith filed a law suit against L’Oreal, alleging that she worked for one day, that her employment was terminated at the end of the day, that L’Oreal violated its obligation to pay earned wages promptly upon separation, and that it should pay her “waiting time” penalties under Labor Code Section 203.

The California Supreme Court agreed. The Court held that the discharge element of Section 201 can be satisfied either when an employee is involuntarily terminated from an ongoing employment relationship or when an employee is released after completing the specific job assignment or time duration for which the employee was hired. An employee who works on a job assignment of short duration is not excluded from the protective scope of Sections 201 and 203.

If a production company does not pay your talent at the end of the shoot this could result in huge penalties being assessed against that employer. This would also apply to any temporary employees, including but not limited to directors, camera people, lighting or production assistants.

August 13, 2012 0

Performer Testing… Is There a Hidden Agenda ?

I hate having to wear my tinfoil hat as one of my Twitter followers pointed out but sometimes it is necessary. Several days ago I posted an article about “Who Should Pay for Performer Testing.” Now I feel compelled to discuss what testing may or may not mean to those who actually control it.

Most industry members see testing as a profitable money making endeavor for whomever controls it. While others believe that those that control the test results can also control the release of information in case of a STI outbreak and might even be able to minimize potential legal liability. Some just see it as a “pissing contest” between several egos.

There is a third potential possibility as well. Many people are now starting to understand that information is worth money. Data mining is a big time business in this world. STI testing results are indeed worth money to the United States government as well as corporations developing new drugs for STIs.

If you follow me on Twitter you might have noticed that on August 9, 2012 I tweeted about how the National Institutes of Health offer grant money to study HIV screening and testing ( http://grants.nih.gov/grants/guide/pa-files/PA-11-118.html ) On Saturday, August 11, 2012, Talent Testing Service announced that they just formed a partnership with University of California, Los Angeles on a sexual health study ( http://business.avn.com/company-news/Talent-Testing-Service-Partners-with-UCLA-on-Sexual-Health-Study-485112.html ).

Performers wanting to receive a $40 gift card and free follow up STI medical care can participate in the study. Which essentially means that UCLA will have the right to their test results and medical care to use as part of their study – in essence a performer waives their right of privacy in so much that the information will could be sold. I am sure this information will be sanitized – meaning names will be removed since UCLA probably doesn’t care about a performer’s name or identifying information – rather UCLA cares about the empirical data – how often one tests, how often one catches an STI, the treatment received for such, how long the treatment lasted and how effective the results of the treatment were. That could be a data goldmine for a drug company trying to develop the next anti-biotic to fight any one of the many STIs on the planet.

How much can a group or organization receive for this type of information ? According to the link I posted to the National Institutes of Health’s grant overview information website, there is no limit. However if you want more than $500,000.00 you have to call the NIH directly. Apparently you cannot just email the application for a grant requests at that level.

I am not saying that Talent Testing Services received the grant themselves, however it does appear that UCLA has indeed received grant money for the study of STIs. The performers present a very unique situation in the world when it comes to STI research. I am going to bet that no where else in the United States does a group of people test for and possibly contract STIs as much as performers do in porn. And now that the testing cycle is being pushed to every 14 days, the amount of information is only going to increase and therefore the potential gold mine of data will increase in value as well.

As I tweeted, “there is gold in them thar HIV tests !”

August 12, 2012 0

Who Should Pay for Performer Testing ?

On July 24, 2012, Manwin the owner of membership websites known as Brazzers and Mofos and tubesites such as YouPorn, PornHub, and Tube8 made an announcement that they would donate $50,000.00 per month to create a “Performer Subsidy Fund” to reimburse performers for the cost of testing in the adult industry (See story here).

This fund would be administered by the Free Speech Coalition through their APHSS program. Basically, Manwin stated that they would reimburse all performers the costs of their tests within a given month up to $50,000.00, whether those tests were for Manwin productions or not. Manwin also called for other production companies to join with them in their generosity and also donate to the fund. They further donated a total of $35,000.00 to FSC/APHSS to administer the fund. However, they did place a time limit on the program indicating that the program would only run through the end of 2012. At which point it would be re-evaluated to determine if it would be continued into 2013.

Many people within the industry pointed out that this was a very generous, albeit suspicious offer from Manwin. There is a general opinion within the industry that Manwin, through their tubesites, was a direct contributor to the economic downfall of porn production. Why now would they voluntarily come forward and support performers to reimburse testing costs ? Some people even opined that they believed this was Manwin’s attempt to take over medical testing procedures in the industry.

However I think the answer can be found in California Labor Code section 222.5 which reads in relevant part;

“No person shall withhold or deduct from the compensation of any employee, or require any prospective employee or applicant for employment to pay, any fee for, or cost of, any pre-employment medical or physical examination taken as a condition of employment, nor shall any person withhold or deduct from the compensation of any employee, or require any employee to pay any fee for, or costs of, medical or physical examinations required by any law or regulation of federal, state or local governments or agencies thereof.”

In short, employees in California cannot be made to pay for pre-employment medical testing, which is exactly what the STD testing is within the adult content production business – a pre-employment test. Without a clean test no production company will or should hire a performer to perform in an adult production.

I realize that many performers in adult do not and refuse to consider themselves employees. Rather they wish, for whatever reason, to be called independent contractors. I can assure anyone reading this article that performers, for purposes of worker safety laws, are indeed employees and not independent contractors. Perhaps for tax purposes they may be independent contractors. It is possible to be an employee for worker safety laws but yet be an independent contractor for tax purposes.

Further, on January 1, 2012 additional laws went into effect in California making the “willfull misclassification” of employees as independent contractors even more dangerous for employers. Labor Code Section 226.8 imposes significant penalties ranging from a minimum of $5,000 to $25,000 for “each violation.” The civil penalties for one misclassified individual could be tens of thousands of dollars depending on the interpretation of “each violation” and the penalty imposed. Obviously, if Manwin does not take remedial steps to comply with California law in regards to the classification of employees they may face significant penalties as well as potential lawsuits under California’s Private Attorney General Act, which allows individuals to file lawsuits to enforce California law.

It is this author’s opinion that Manwin is starting to realize that the performers are indeed employees and are taking steps to comply with California law. Obviously, they are trying to set a precedent with the reimbursement of testing costs, however they still fall short of actual compliance with Labor Code section 222.5. Since the “Performer Subsidy Fund” requires a performer to sign up for the program instead of Manwin paying for the pre-employment testing outright.

None-the-less, Manwin is taking a step in the right direction when it comes to the treatment of performers, however, it is only a half step. At some point all production companies will have to address not only peformers’ testing costs but also the issue of workers’ compensation for on-set injuries.

If you would like to read more on the issue of workers’ compensation and porn production here is a two part interview I did for XBiz Magazine in 2007 … Part I and Part II

In future posts I will be covering the issue of workers’ compensation insurance and its application to porn production sets further.

August 8, 2012 0

Michael Grecco & Naked Ambition…

As I said in my post about being on “The Canyons” set with James Deen, sometimes I get to do something really interesting in my job. It doesn’t happen often but when it does I often seize the opportunity. Six years ago I had the opportunity to pose for a photograph be included in a coffee table book. The photograph was to be taken by none other than Michael Grecco. If you dont know who Michael Grecco is you should really visit his website MichaelGrecco.com. He is one of the best photographers in the commercial and entertainment photography business. He has shot mainstream celebrities for the cover of Time, Newsweek and People, as well as others. He also shoots many of the ads you see in those magazines.

Six years ago, while exhibiting at the AVN Convention in Las Vegas, I was approached by Michael to be photographed. He was working on his book and film “Naked Ambition: An R Rated Look at an X Rated Industry” ( http://nakedambition.com/ ). I was minding my own business just standing at my booth when one of his scouts approached me with the unusual question of “so you’re a lawyer to pornstars?” His scout was fascinated with the fact that there was such a person in the business. I was then quickly whisked off the show floor to this tent where Michael was shooting his “subjects.” The whole process lasted less than 10 minutes. What you see posted is the portrait he captured. While the hair may be longer and bit a more gray and the glasses are gone, Michael captured who I was at that moment in time. His ability to capture movement in a still photograph is amazing.

It has taken six years for him to finally send me a print but that’s okay. I will treasure it. I can give him a hard time since in those intervening six years he has become my client and my friend. Thank you Michael Grecco.

August 5, 2012 0