Category Archives: Current Affairs

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

Does 18 U.S.C. 2257 Apply To A Sims Cartoon Movie?

Recently, an enterprising producer of adult content created a pornographic film utilizing the Sims cartoon characters.  While of course, this is likely a trademark and copyright violation – since it is doubtful that the owners of the Sims software would license their intellectual property for creating an adult film – the question arises as to whether it is also a violation of 18 U.S.C. 2257.

The answer is not straight forward.  The video appears to utilize pilfered content from the Sims imagery which is not adult oriented.  However, it intersperses that material with actual adult content involving actual actors.  Therefore, it is likely that 18 U.S.C. 2257 would apply.

We would be interested in hearing any thoughts that readers of this blog might have on this topic.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

What is the Relationship Between Violating 18 U.S.C. 2257 and Violating Section 2252A of the Child Pornography Protection Act of 1995?

If a defendant fails to adhere to the record-keeping provisions of section 2257 has he also violated section 2252A of the Child Pornography Protection Act?  The Federal District Court for the Eastern District of Michigan recently addressed this question in Doe v. Peterson, No. 2:09-cv-13138-PDB-PJK (E.D. Mich. March 24, 2011).

In that case, Plaintiff sued the owners of a website that posted nude pictures of Plaintiff sent from an unknown person that were intended to remain private between Plaintiff and her boyfriend.  Even after Plaintiff contacted the site asking that the pictures be removed because they were submitted without her consent, the pictures remained on the website.  Plaintiff claimed that she was a minor when the pictures were taken and relayed this information to the site when she initially contacted them.  It was only after being served with the complaint that the photos were taken down a day later.

Plaintiff alleged, among other things, that Defendant violated 18 U.S.C. §2252A(a)(2), which prohibits any person from knowingly receiving or distributing child pornography that has traveled in interstate or foreign commerce.  Id. at 5.  Plaintiff moved for summary judgment and claimed that there was no genuine issue of material fact regarding whether Defendant knowingly participated in receiving or distributing child pornography. See Id.  Plaintiff claimed that because Defendant violated §2257, which requires publishers of pornographic material to verify the age of models, Defendant could not therefore claim he did not know how old Plaintiff was.  Id. 

Defendant’s website encouraged men to submit nude pictures of their ‘ex-girlfriends, ex-wives, current girlfriend or wife, or any female showing her stuff.’ Id. at 2.  Although the site contained “submission rules” requiring that models be 18 or older, Defendant admitted that he had no real way of knowing if people followed the rules.  The only safeguard Defendant took was judging to see whether the models could pass for 18. See id. Defendant claimed that he never was the recipient of any correspondence from Plaintiff regarding her request that the photos be taken down nor did he receive an email stating that Plaintiff was underage.  However, Plaintiff argued that Defendant’s claim to have not received the emails, coupled with Defendants failure to follow the verification requirements of §2257, demonstrated that the Defendant was “deliberately ignorant” of Plaintiffs age.  Plaintiff claimed this could satisfy the “knowingly” requirement of §2252A.  Further, Plaintiff argued that if nothing else, the fact the Defendant didn’t remove her pictures until one day after receiving the complaint showed that Defendant undisputedly knew Plaintiff was a minor, in violation of §2252A.

The Court disagreed with Plaintiffs position.  First, because Plaintiffs age at the time the photos were originally taken was at issue, this rendered Plaintiffs request for summary judgment inappropriate.  Further, the Court stated that even if Plaintiff’s age was not in dispute, Plaintiff’s motion for summary judgment would still be denied because violation of §2257 does not necessarily establish that Defendant “knowingly” violated section 2252A. The court noted that the Defendant did not have actual knowledge that Plaintiff was a minor because the correspondence did not contain any real evidence of  Plaintiffs age, such as a birth certificate, so at most, Defendant had “inquiry notice,” requiring the Defendant to investigate the matter further . See id. at 6.

The Court agreed with Defendant’s contention that there was no reason to suspect that Plaintiff was a minor from looking at the pictures posted on the website and so Defendant should not be found deliberately indifferent. Id.  Further, the court did not take issue with the timeframe with which the Defendant removed the photos from the website after being served with the complaint.  At most, the Court found that Plaintiff’s allegations established that there were issues of material fact regarding whether the Defendant knew Plaintiff was a minor, but this did not amount to proof that 18 U.S.C. §2252A was violated as a matter of law. See id. at 7. Ultimately, Plaintiff’s motion for summary judgment was denied.

The best practice is to verify the age of participants when posting anything associated with the adult industry.  One should be cautious of the possibility of interacting with minors and take measures to ensure that the subject’s age is accounted for. 

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Is The United States’ Federal Communication Commission’s Indecency Policy Unconstitutional as Applied?

The United States Supreme Court ruled on June 21, 2012 that the Federal Communications Commission’s (“FCC”) enforcement of 18 USC Section 1464 ban on the broadcast of “any obscene, indecent, or profane language” was unconstitutional.  Federal Communications Commission, et al. v. Fox Television Stations, Inc., et al., 567 U.S.­___(2012).

Importantly, the Court did not find that the FCC was precluded from enforcing the statute at all.  Instead, the Court found that the FCC had not given “fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.”  On that basis, the Court found that this enforcement regime was unconstitutionally vague.

It remains to be seen whether the FCC can promulgate regulations that will provide sufficient advance notice of what will and will not be deemed obscene.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC