Does §2257 Apply To A Breastfeeding Video That is Used Illegally by an Adult Website?

Does a
producer of a breastfeeding instructional video have to abide by §2257? What
about the mother who volunteers to allow herself and her baby to be filmed? How
about somebody who illegally uses the breastfeeding video to create an adult
video?

This was
addressed in a case heard in M.S.  v. Meredith Corporation, United States
District Court of New Jersey,  August 2,
2012 (Civil Action No. 11-cv-5180). In that case, the plaintiff, a new mother,
volunteered to allow the defendant, a media and marketing corporation that aims
at educating women on various topics, film a “how to” video for breastfeeding.
The defendant did not pay the plaintiff for filming the video; the plaintiff
felt as if her experience as a new mother could help women who are considering
breastfeeding. According to the plaintiff, the defendant promised her that
neither her name nor that of her daughter would be revealed. The plaintiff also
claimed that the defendant told her the video would only be played on the
defendant’s website and on cable television for educational purposes.

Unfortunately,
while searching her name on the internet, the plaintiff discovered that the
video of her breastfeeding was being displayed by an adult website. That
website included both her full name and her daughter’s first name on the video.
A man named “Nizard” was the culprit. He had access to the video because the
video had been posted on YouTube by the defendants. This was done in spite of
the fact that plaintiff had been assured it would not.

18 USC §2257
makes it a federal crime to fail to comply with certain record keeping and
reporting requirements. Such requirements must be followed when one produces a film,
book, magazine etc. which includes “sexually explicit conduct.” “Sexually
explicit conduct” is defined under §2256 (2)(A):

“Sexually explicit conduct” means
actual or simulated—

(i)   sexual
intercourse, including genital—genital, oral-genital, anal—genital, or oral
anal, whether between persons of the same or opposite sex.;

(ii)  bestiality;

(iii) masturbation;

(iv) sadistic
or masochistic; or

(v)  lascivious
exhibition of the genitals or pubic area of any person;

Applying
both §2257 and §2256, it would appear that only Nizard would be liable under
the statute; not the mother nor the defendant. The only way the mother or the
defendant would be liable under §2257 is if breastfeeding were considered
“sexually explicit conduct.” Interpreting the statute makes it clear that it is
not. Breastfeeding clearly does not fall into one of the sexual acts listed in
§2256. While the statute states that sexually explicit conduct includes “sexual
intercourse, including genital—genital, oral-genital, anal—genital, or oral
anal, whether between persons of the same or opposite sex” which clearly
breastfeeding is not. Further, one would be hard-pressed to argue before a
Court that breastfeeding a newborn has a sexual component in the first place;
hence the intent of the statute clearly is not to include it within the law’s
purview.

However,
when Nizard illegally added the video to an adult website, he entered the realm
of §2257. Although, the pornographic scenes which Nizard combined with the breastfeeding
video are not described in the case, it is likely that such scenes involve at
least one of the acts listed in (i) through (v) of §2256. Thus, under such
assumption, a §2257 claim against Nizard for failure to follow reporting
requirements would be available against him.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC