One of the key challenges in the adult film industry is that films are shot rapidly (sometimes in one to three days) and with an extremely low budget. Therefore, one of the key issues facing production companies involves the limitations on the use of unpaid interns.
Unpaid internships are very common in both the adult and the mainstream film industry. But in recent years, unpaid internships have been a source of controversy. This controversy is attributed to the practice of employing unpaid interns and not following the labor laws that require unpaid internships to be educational.
Recently, two men who worked on Black Swan sued Fox Searchlight Pictures alleging that Fox Searchlight Pictures violated federal and state labor laws by using dozens of unpaid interns for the production. The suit was filed in the United States District Court for the Southern District of New York on behalf of Alex Footman, a Wesleyan film school graduate, and Eric Glatt, a Case Western Reserve University MBA. Footman worked as a production intern and claimed that his duties included making coffee, taking out trash, handling lunch orders and cleaning the production office. Glatt worked as an accounting intern and claimed that his duties included creating documents for purchase orders, obtaining signatures on those documents and also creating spreadsheets to keep a track of missing information in personnel files. The plaintiffs’ claimed that by hiring unpaid interns for production work, Black Swan was able keep its production costs low and therefore improve its profit margins. The film was filmed for $13 million and made nearly $300 million worldwide. The plaintiffs’ alleged that Fox Searchlight used unpaid interns to perform “menial tasks” that should have been performed by production bookkeepers, assistants, janitors, secretaries and other paid employees. They also claimed that Fox Searchlight failed to provide them with the educational experience that would exempt Fox Searchlight from having to pay the interns under the current labor laws.
The plaintiffs’ are seeking class action certification for the lawsuit on the grounds that Fox Searchlight has employed more than 100 such unpaid interns in its other film productions. In addition to back pay, plaintiffs’ are also seeking injunction against Fox Searchlight to bar the company from improperly using unpaid interns in its future productions.
It is not clear how this will ultimately play out in the judicial system. However, the lesson for production companies is to be careful not to overuse the option of using unpaid interns in the film industry.
© 2011 Nissenbaum Law Group, LLC
While the existence of tube sites has transformed the adult film industry, there are still DVD rental businesses that provide such content. The records of such rentals are governed by the Video Piracy Act (“Act”). In 1988, the United States Congress passed the Act to prevent “wrongful disclosure of video tape rental or sale records”. 18 U.S.C.A. § 2710. This act was passed as a reaction to the newspaper disclosure of the video rental records of the Supreme Court nominee Robert Bork. The Act requires companies that sell or rent video tapes to obtain written consent from consumers to disclose the consumers personally identifiable information, i.e., information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider. Companies may disclose the lists of consumer names and addresses only if they first give consumers an opportunity to opt-out of such information disclosure. The Act provides for liquidated damages in the amount of $2500. Under the Act, the video tape service providers are required to destroy the personally identifiable information within a year from the date the information is no longer needed for the business purpose in which it was obtained.
In 2008, a Texas woman sued Blockbuster, Inc. over the video rental company’s participation in the Facebook’s Beacon program. The lawsuit alleged that Blockbuster violated the provisions of the Video Privacy Protection Act of 1988 by sharing her video rental and sales records with Facebook without her permission. Facebook ended up terminating the Beacon program, and created a $9.5 million fund for privacy and security.
In 2009, an anonymous plaintiff filed a lawsuit against Netflix alleging that Netflix violated the Video Privacy Protection Act by disclosing personally identifying information derived from online activity of Netflix subscribers. This was done as a part of a contest which Netflix created to improve its movie recommendations. Contestants were given training data set and a qualifying data set. The testing data set consisted of 100 million subscriber movie ratings with each entry including a numeric identifier unique to the subscriber, movie title, movie year of release, date of subscriber rating, and the rating of one to five stars assigned by the subscriber. Such movie and rating data contains information of a highly personal and sensitive nature. Therefore, plaintiff, a lesbian mom joined the lawsuit as Jane Doe because her sexual orientation was not a matter of public knowledge.
Thus, although rarely invoked, the Video Privacy Protection Act prohibits video rental companies from disclosing to other parties any personally identifiable rental records of their customers without written consent from the customers. It is a critical part of the business model for any adult film production and/or distribution business that utilizes DVD rentals as part of its revenue stream.
© 2011 Nissenbaum Law Group, LLC