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.