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

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

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