Big vs. Small: What Laws Apply to Amateur Productions ?

Broken contractOne of the most misunderstood aspects of “porn law” is whether certain laws, regulations and industry practices and customs apply to small amateur productions and/or couples versus the large mainstream porn production studios such as Brazzers, BangBros and LegalPorno.

The simple answer is most – if not all – of the same laws and regulations that apply to large mainstream studios also apply to the mom & pop (or husband & wife) or solo, POV producers – even those who only do content trades.

On numerous occasions I have heard from a potential client “oh that law is only for Brazzers that doesn’t affect my amateur productions.” That is simply not true. There is no distinction in any of the “porn laws” between large commercial mainstream studio productions and small amateur productions. Pornography is pornography and as long as you are creating hardcore content (anything involving penetration, even solo) then you are a pornographer, Hustler or Penthouse.

The most basic of the requirements of producing pornography is that a producer obtain model releases from everyone that appears in anyway in your video, whether you are paying that performer or simply trading services and/or content with them. If you do not have a model release you might lose your rights to sell that scene, clip or video.

The second regulation that all producers must comply with is 18 U.S.C. 2257 – the federal record keeping law. If you do not comply with this law for EVERY scene that you produce, you can face up to 5 years in jail. If you do require a copy of the personal identification of each and every performer that appears in your production, you are in violation of 2257.

If you hire models and/or performers and pay them to appear in your production, you must also comply with basic employment laws. That also applies to if you share revenue with your models/performers. In most states, workers compensation laws apply to employment situations. Which means that a production must have workers compensation insurance policy in effect when hiring models and performers. This usually applies even if you and model/performer believe and state in writing that the model/performer is an independent contractor. If a model/performer is injured on set, whether it’s a slip and fall or a sexual transmitted disease, the producer will be responsible for the injury.

Along with model/performers being employees for purposes of workers compensation, it should also be noted that they might also be employees for tax purposes and failure to pay the necessary payroll taxes on each model/performer can result in fines and penalties being levied against you or your production company. This situation has occurred with several of my clients over the years and in California the Franchise Tax Board has levied tens of thousands of dollars in fines and penalties on each one. For the models/performers, themselves, it should be noted that failure to pay taxes can result in the IRS levying fines and penalties as well. Over the years, numerous pornstars have been hit with audit letters from the IRS and later fines and penalties for failure to pay their taxes.

Another legal misperception is that if you pay for the content, you own it. That is not necessarily true as well. If your production company uses anyone to hold the camera, video camera, phone or tablet that records the scene, you must have them sign an assignment of rights giving you the rights to the scene, video or clip. Otherwise, they own the copyright to the material. This is true even if they are your partner or are legally married to them.

There is also the issue of the condom laws in California and other states. Most producers do not understand that according the CalOSHA, barrier protection is required for all productions in the state. Over the years several large and small production companies have been fined tens of thousands of dollars for failure to use barrier protection (condoms and dental dams) in their productions to prevent the transmission of bloodborne pathogens and sexually transmitted diseases.

Whether barrier protection is needed in other states is still an unanswered question. Though almost every state has some type of law or employment regulation that indicates that an employee cannot be exposed, even accidentally, to diseases while at work.

I could author another 10 to 20 pages on everything you need to know as a producer, even if you are only producing content for distribution on sites such as OnlyFans, ManyVids, Clips4Sale, SnapChat or your own ModelCentro website. As long as you produce content, you are a pornographer and the same laws apply to you as they do to Hustler, Penthouse, BangBros, LegalPorn or Brazzers ect.,

Failure to comply can mean serious jail time, fines and/or liability to you personally.

Whether you are thinking about becoming a content producer or already are, I highly recommend my 4-hour seminar wherein I cover the following topics;

DMCA and Copyright Law

Trademark Law & Federal Registration

Right to Publicity and Privacy

The Legal Difference Between Porn and Prostitution

Workers Compensation Law

Liability & Production Insurance

18 USC 2257 and 28 CFR 75.1

Registering Domain Names & Cybersquatting

Model Release Agreements & other Production Agreements

Independent Contract vs. Employee Issues

Filming Permits & Condom Permits

Recruiting, Hiring and Working with Performers

Employment Law Issues

Payroll Tax Issues

Health, Safety, STD Testing an OSHA Issues

Acquiring Credit Card Processing

Dealing with User Uploaded Content & the CDA section 230

Setting up an Affiliate Program

Producing Content in “Grey” States

The seminar is offered to individuals or companies. However, if you would like to put together a small group of producer/performers, I can offer the same seminar at a group rate.

 

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