Porn 101: Fetish Content – What’s Legal ?

woman in corset with hands tied focus on the front I am often asked by producers what is legal and not legal to shoot in regards to fetish content. My usual answer is “it depends.” It depends on where you are shooting as well as what you are shooting and where the content will be distributed. For the most part, before Kink.com, fetish content did not involved sex or at least penetration. One of the last remaining “taboos” in adult entertainment was tying up someone and penetrating one or all of their orifices. Many producers to this day believe that may still be viewed as forced raped by law enforcement and worry about potential prosecution as well as obscenity charges from producing such content. While others see what Kink is doing in their productions and think that it is perfectly legal to follow to lead. That could not be farther from the truth.

Whenever I advise a particular producer or model that what they want to produce is potentially illegal or borderline illegal to produce the most often heard response I receive is “But so-and-so is doing it that way.” What most people do not understand is the vast financial differences between being Kink.com and XYZ Productions. Kink.com has the funds to pay for and defend any type of legal situation (Note: I do not represent Kink). XYZ Productions probably does not. Therefore, if Kink.com was ever prosecuted criminally or faced a lawsuit because of its content, they would have the ability to handle such a situation, whereas the little producer would be ruined an unable to defend.

Removing penetration from the equation though and fetish content actually becomes one of the best niche markets with the highest potential return on an investment. Not only is it less expensive to produce most fetish content then it is to produce traditional boy-girl, girl-girl or boy-boy content, it is also legal to produce in all 50 states, depending on the exact nature of the content.

For example, if you produce fetish content such as cake sitting, balloon popping, smoking, toe sucking, tickling, wrestling, POV humiliation, shoe worship and foot worship, as a producer you will have less to worry about in regards to potential criminal prosecution. Some fetish content requires absolutely no nudity and therefore you may not even have to maintain 2257 documentation. The vast majority of fetish content does not involve penetrative sex and therefore usually cannot be the basis of a criminal complaint for pandering or prostitution (be aware that shooting without a permit may still be a crime please check your local laws). You can literally produce certain types of fetish content anywhere. And it is often much less expensive to pay a model to pop balloons naked than it is to pay her to perform fellatio on a male performer. With the onslaught of tubesites, any type of “sex” content is easy to find for free on the Internet whereas fetish content is more specialized, harder to find for free and usually more often purchased then sex content. One of the easiest distribution methods for fetish content is on websites such as Clips4Sale.com ( http://www.Clips4Sale.com ). Not only is Clips4Sale an excellent distribution method but it can also be used as a resource tool to determine what is hot in the fetish market. You have to look no further to see what is selling on Clips4Sale to understand what may sell for you.

If you are going to produce fetish content without sex (oral, anal, vaginal or even handjobs) the possibilities are limitless as to the different niches and sub-niches you can produce. The list of all potential fetish content is too exhaustive to state in this article and I recommend that anyone looking to produce such content to choose several niches to begin with and experiment. However, once you find a particular niche or sub-niche your clients and customers may remain loyal for years to come.

Be aware that producing fetish content still has it owns potential issues. The following is a list of activities that you will want to stay away from incorporating into any of your productions as these may be considered criminal and/or obscene in some localities;

•    Underage Material Real or Simulated (ex., sex with dolls)
•    Snuff
•   Necrophilia
•    Blood
•    Asphyxiation
•    Animal Sex
•    Forced Sex
•    Non-consensual Sex
•    Hardcore Bondage with Sex
•    Vomit
•    Feces
•    Pissing/Peeing
•    Fisting
•    Chloroform
•    Weapons
•    Drugs
•    Intoxication
•    Crushing

While this list is not exhaustive as to what may or may be deemed obscene in certain localities it is a good starting point as to what may be problematic. Of course, if you are determined to produce fetish content it is strongly advised that you consult with an adult entertainment attorney BEFORE you begin any pre-production so that you may fully understand the legal ramifications as to the exact nature of the content you would like to produce.

October 23, 2012 0

Porn 101: 18 U.S.C. 2257 The Basics

Federal Record Keeping Requirements and 18 U.S.C. Section 2257

How it began…

In the fall of 1984, Penthouse magazine featured Traci Lords in a pictorial and made her their Pet of the Month. She quickly became an overnight sensation in the adult entertainment business and rapidly went on to star in hundreds of adult movies and posed for numerous other magazines.

By the fall of 1987, it became apparent that Ms. Lords might have actually been under the legal age of 18 when most of her print and video work was performed, thus making her a child and a minor when she appeared in those videos and magazines. This sent shockwaves through the adult entertainment business and resulted in numerous distributors being indicted by the federal government for the sale of child pornography. Many in the business scrambled to recall, retrieve and destroy Ms. Lordís pictures and videos to avoid prosecution and conviction.

Congress also immediately reacted to this and passed 18 U.S.C. section 2257 which was designed to prevent other minor age persons from appearing in sexually-explicit content. Section 2257, as it is referred to, places several requirements on those that act in and produce sex-explicit content. It is, without question, an all important piece of legislation that everyone in the adult entertainment business should be familiar with.

What 2257 requires?

Any producer, whether primary or secondary, involved in the creation or commercial distribution of images that contain visual depictions of actual sexually explicit conductî must maintain certain records of those that perform in that visual depiction.

What is actual sexually explicit conduct?

(A) Sexual intercourse of any kind, including oral and even between same sex partners;

(B) Bestiality;

(D) Sadistic and/or masochistic behavior;

(E) Sexually explicit content meant to arouse.

Who is a producer?

(A) Anyone that produces, manufactures, publishes any book, magazine, periodical, film, video, or other similar matter and yes, websites are included in this list.

When did it take effect?

(A) It is in effect and has been for any new content made after July 3, 1995.

What do I have to do as a producer?

If you are a producer of content you must create and maintain the following records;

(A) The legal name of each performer obtained by the examination of an identification document;

(B) The date of birth of each performer obtained by the examination of an identification document;

(C) Any name, other than the performer’s legal name ever used by the performer, including the performer’s maiden name, alias, nickname, stage name or professional name;

(D) For any content produced after May 26, 1992, such names shall be indexed by the title or identifying number of the book, magazine, film, videotape or other matter and again websites are included in this;

(E) Keep copies of all the identification documents that have been examined separated from all other records.

What constitutes identification?

(A) A state or federally issued ID that bears the photograph, name and birthday of the performer.

What do I have to do as a performer?

(A) Have 2 forms of identification issued by a state or federal government showing your legal name, birth date and photograph;

(B) Have a list of all your stage names, professional names, nicknames or alias that you have used in the adult entertainment business over your entire career;

While it is not required I would also provide any producer/director the following as well;

Where and for how long do I have to keep the records?

(A) At the producer’s place of business;

(B) The place of business must be a street address not a PO Box;

(D) If the producer ceases to remain in business, he or she shall still continue to maintain these records for a period of 5 years.

Labeling requirements under 2257…

(A) A statement must be affixed to every copy of the book, magazine, periodical, film/video, website or other matter that shows the title or identifying number of that publication and;

(B) The date of the production, manufacture, publication, reproduction or reissuance of the matter and;

(D) The person responsible for maintaining the records;

(E) The name of the corporation/legal entity as well.

What can happen if I violate 2257?

(A) Violation of 2257 is a felony and those found guilty of such shall be imprisoned for not more than 5 years and/or pay a fine;

(B) A second offense is punishable by imprisonment of not more than 10 years, but not less than 2 years and/or a fine;

Obviously, 2257 is a powerful statute and one that cannot be ignored. Failure to maintain these types of safeguards could also lead to the possible performance of a minor in an adult production which could have even greater potential for harm. The law is in a constant state of change in regards to 2257 and it is recommended that in order to fully understand those changes you consult and attorney immediately.

There are also many issues involved with 2257 that these pages have not touched on and remain somewhat unclear even to legal experts in the adult entertainment field. This summary is not meant to be exhaustive of what a producer’s responsibilities are when it comes to complying with 18 U.S.C. 2257. 18 U.S.C. 2257 is an extremely complex law and I strongly suggest that you contact competent legal counsel for additional information and advice.

October 22, 2012 0

“Condoms in Porn” Law and Web Camming: Part 2 Arrest and Fines

October 2, 2012 0

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.

(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.

September 21, 2012 0

Condoms & The First Amendment…

Los Angeles County’s Measure B, the “Condoms in Porn” law, has caused much discussion in the media as well as the industry as to whether such a mandate is a violation of a performer and producer’s First Amendment free speech rights. Whether it is a violation of the U.S. Constitution will be left to the courts to decide. It is, without question, a law that can be challenged. The United States’ Constitution is the supreme law of the land. Which means no other law can violate the rights guaranteed by the Constitution – not even workers’ safety laws.

In regulating commercial speech the government has to show that condom law passes what is known as the Central Hudson test ( Please see: http://itlaw.wikia.com/wiki/Commercial_speech ). In regards to free speech and pornography, the United States’ Supreme Court has indeed ruled that hardcore pornography is legal and in fact is protected by the First Amendment and therefore entitled to protection under the Constitution ( Please see: http://en.wikipedia.org/wiki/Miller_v._California ).

Many have also questioned who holds such free speech rights – the producers or the performers ? The answer is that both producers and performers hold equal rights in that regard. Performers, like dancers in gentlemen’s clubs, do in fact express themselves while performing in an adult scene or movie. There are several U.S. Supreme Court decisions that hold a dancer’s nude dancing is in fact expressive free speech. ( Please see: http://en.wikipedia.org/wiki/Barnes_v._Glen_Theatre,_Inc. )

Can Free Speech Be Restricted ?

Commercial free speech can be regulated. There are two types of restrictions on commercial free speech, content and non-content based restrictions. An example of content based restriction would be a law that prohibited a newspaper from publishing the name of a rape victim. An example of a non-content based restriction would be zoning laws regulating the time, manner and place a business owner could operate a gentlemen’s club within a city or county. Content based restrictions require the court to impose a “strict scrutiny” test, meaning that the law has to promote a compelling governmental interest and it has to do so in the least restrictive means possible. For non-content based restrictions the court will used what is called “intermediate scrutiny,” meaning the law has to promote a significant, substantial or important government interest and it must be done in a way that is narrowly tailored to the governmental interest. Under intermediate scrutiny there are basically two tests the court uses 1) time, place and manner and 2) incidental, which means regulations that are aimed at conduct that is not speech but do infringe on speech.

A government mandated condom law would be a regulation that is not aimed at actual speech but rather conduct however it does infringe on the free speech rights of the producers and performers. In U.S. Supreme Court cases that have primarily been focused on gentlemen’s clubs, those looking to restrict nude dancing have used the argument that regulations imposed on them are merely trying to alleviate the “secondary effects” that gentlemen’s clubs supposedly cause such as crime, prostitution and blight on the neighborhood they are located in. I imagine that the government may also try to use a secondary effects argument in favor of the condom law, if it were ever to be challenged. I believe that they will claim that condoms in porn will protect the health of the general public since members of the adult industry will spread disease to those in the general public. Whether this argument will work is unknown.

None the less, a government mandated condom law is a restriction of free speech of both performers and producers. Since it is not content based, if challenged in court, it would receive intermediate scrutiny and the court would examine whether the government has a significant, substantial or important governmental interest and whether the law is narrowly tailored to those goals.

Therefore the question will be is the health and safety of workers in the adult industry a significant, substantial or important governmental interest. And if so, is the condom law narrowly tailored to promoting that goal. In other words does the law restrict the least possible amount of speech to accomplish the goal of protecting adult industry workers.

More than likely the courts will find that the health and safety of adult performers are an important governmental interest. The argument on behalf of the industry would probably be that STI testing achieves the same goal of the condom mandate without restricting any speech.

The industry could also make the argument that only the state of California has the ability to regulate workplace safety and therefore the law exceeds the power of Los Angeles County or any city that adopts a similar law such as the City of Los Angeles Safer Sex in Adult Films Ordinance.

In the coming weeks I will be writing more on this subject. However, if you are interested in this issue I suggest that you do some research and educate yourself. Especially if you are a producer or performer in the industry. You might be interviewed by someone in the media in the coming weeks as Election Day approaches.

A good starting primer on First Amendment issues is attached to this article. It was written by an attorney for the Congressional Research Service in October 2009. It basically states how the government can regulate free speech and how it needs to go about doing it. Its an inside look inside their “playbook.”

FreeSpeechPrimer

September 16, 2012 0

Performers, Producers & Escorts: Naked in Public? Register as a Sex Offender!

As part of the ABL’s campaign to educate California voters on Proposition 35 here is a video excerpt from Mr. Francisco Lobaco from the American Civil Liberties Union (ACLU) addressing the California Legislature about his concerns how Prop 35 will infringe upon anonymous free speech on the Internet.

Under Proposition 35, anyone convicted of even a minor crime such as indecent exposure, even decades ago, will now be required to register as a sex offender. And as a register sex offender under Proposition 35, that person will now have to inform law enforcement of any name or alias they use in any online discussion group or social media platform within 24 hours of creating such account.

Failure to do so will be either a felony or misdemeanor – depending on what their underlying crime was which required them to register as a sex offender.

Which means if you are a performer or producer, you have to be very aware of the indecent exposure statutes especially if you produce anything outside in public. Sex/nudity in public can be indecent exposure. If caught you could end up as a registered sex offender and be required to tell the police of every screen name and alias you use on Twitter, Facebook and LinkedIn, FOREVER. If Proposition 35 passes you are going to be treated like a child molester. And according to Mr. Lobaco this might even apply to those that were convicted of or even plead guilty to indecent exposure years ago.

September 12, 2012 0