Category Archives: adult entertainment

How Does 2257 Apply To Live Web Cam Chats?

As the adult entertainment industry increases its presence on the web and adult sites enable users to interact by video with performers, it is important to keep in mind that 18 USC §2257 (“2257”) could reach certain aspects of such services. One example of this is the “live chat” capability that has become a popular aspect of the adult entertainment.

Live chats often include a performer who provides live content for an adult cam website, with the user able to watch – and interact with – the performer. The requirements of 2257 might not initially come to mind when one thinks of such live chat capabilities. However, the law’s language suggests that not only does it apply to such situations, but the individual performing the sexual acts on camera could very likely be considered the producer of the material. As a producer, the performer would be the one responsible for complying with the 2257 requirements regarding proper labeling and record-keeping.  In other words, there could be criminal liability for failing to adhere to the 2257 requirements.

A “primary producer” is one “who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.” 28 CFR 75.1(c)(1). Under this language, it is likely that one who is performing the live sexually explicit conduct would be considered a primary producer of the content. As such, the 2257 regulations – including record-keeping and labeling – would attach to the person performing the sexual acts on the web cam.

It is also possible that the ramifications from a performer failing to comply with 2257 could extend beyond that individual. For example, consider an owner of an adult entertainment website that enters into an agreement with a live cam performer. The individual agrees to perform sexual acts on the web cam and the company agrees to aggregate and broadcast the content on its site. The company could potentially be liable for a failure to comply with 2257, either (a) as a distributor failing to comply with its own 2257 requirements or (b) as an entity that aided and abetted the performer in his or her violation of the statute.

Though live webcam performers may not automatically come to mind as potential targets of 2257 prosecutions, the statute’s language suggests the requirements could certainly apply to such performers. As primary producers, the labeling and record-keeping requirements will likely attach to performers and, potentially, to sites that contract to broadcast the performances.   

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Online Video Piracy: the Battle Continues for the Adult Industry

With the rapid increase in consumption of online videos, the adult entertainment industry has struggled to combat online video piracy. Consumers’ easy access to free short clips – most notably, those posted on the “Tube” sites —  has hurt the adult producers who earn most of their money from the original full videos.  Some adult producers have considered suing individual file sharers for copyright infringement. But, most of them have resorted to sending take-down  or cease and desist notices instead. This is why Vivid Entertainment Group’s lawsuit against PornoTube was widely viewed as the adult industry’s first big step in this direction.

In December 2007, Vivid Entertainment Group (“Vivid”) sued PornoTube’s parent companies, Data Conversions, Inc. (operated as AEBN) and WMM, LLC, alleging copyright infringement of at least 50 scenes from Vivid’s adult movies and violation of Federal 2257 record-keeping requirements. The suit was filed in the United States District Court for the Central District of California. Vivid sought permanent injunction against AEBN as well as $4.5 million in damages.

Vivid alleged that PornoTube engaged in willful copyright infringement of its works by using technological advancements. Vivid also alleged that PornoTube’s actions, which included uploading copyrighted works owned by Vivid or others, resulted in a large monetary loss to Vivid.  Vivid also sought to pioneer a new legal strategy by alleging that failure to comply with US Code 2257, has given PornoTube and its parent companies, an unfair competitive advantage in the adult entertainment industry. 18 U.S.C. Section 2257, known as the Child Protection and Obscenity Enforcement Act, requires adult producers to keep detailed records of the age and identity of their performers.

Vivid’s complaint alleged that PornoTube did not have records for the performers of the infringed copyrighted videos. This gave PornoTube an unfair competitive advantage over others in the adult entertainment industry because it did not incur the costs associated to maintain the records. This new legal strategy gave some hope to many adult producers, who actively sought new weapons to fight against the infringers.

Unfortunately, Vivid’s unexplained withdrawal of the lawsuit in October 2008, has put those hopes on hold and thus, the battle against the infringers still continues.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC