INTERNET PICTURE REMOVAL LAW BLOG

18 U.S.C. 2257 generally serves as an insurmountable impediment to posting a person’s sexually explicit photographs on a revenge porn site. These sites consist of video and still pictures that are posted without the consent of the person being photographed. Normally, they stem from either (a) former lovers who received the pictures for their private use when the relationship was still viable or (b) spurned suitors who wish to take out their anger on the person whose photographs they happened to obtain.

Either way, it is a virtual certainty that 18 U.S.C 2257 will not be complied with; it requires the photographed person’s identification to be provided to a custodian of records. Since the person being photographed presumably did not agree to have the photographs posted (or may not know about it at all), it is highly likely that it will be impossible to obtain that identifying documentation.

There are at least two suits currently pending against revenge porn sites based upon the violation of a duty of care established by 18 U.S.C 2257. Once such suit is against Texxxan.com and the other against Ugotposted.com.  

These suits are highly significant for another reason. Since 18 U.S.C 2257 was not complied with, there is no way of being certain that the photographs involved persons who are of age. The intent of the law is to prevent of dissemination of child pornography; its violation may very well lead to that result.

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.

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

The requirements of 18 U.S.C. §2257 (“2257”) impose certain record-keeping obligations on the producers of sexually explicit material. The constitutionality of the statute has been challenged in recent years, but courts have usually indicated that 2257 is constitutional. An interesting example of such a challenge was heard by the U.S. Court of Appeals for the Sixth Circuit in 2009. Connection Distrib. Co. v. Holder, 557 F.3d 321 (6th Cir. Ohio 2009).

That case focused on how the 2257 requirements apply to “swinger magazines,” which consisted of sexually explicit advertisements by couples who invite other couples to share sexual experiences. The appellants were the publishers and potential advertisers of the magazine. They brought an action against the U.S. Attorney General, seeking to enjoin enforcement of the 2257 record-keeping requirements as they relate to the content of a swingers’ magazine content.

In order to comply with 2257’s record-keeping requirements, producers are required to (a) obtain certain actor identification and (b) maintain that information in the required manner. The appellants in Connection argued that requiring the publishers to maintain records of their advertisers’ identities and ages was an infringement of their freedom of speech. They argued that the statute was unconstitutional both as applied to the publishers and the advertisers. They also took the position that it was unconstitutional on its face. The U.S. District Court for the Northern District of Ohio granted summary judgment in favor of the Attorney General. The publishers and potential advertisers appealed to the U.S. Court of Appeals for the Sixth Circuit.

In determining the constitutionality of the statute, the Court of Appeals applied an intermediate level of scrutiny. A statute survives intermediate scrutiny if it:

1. advances a “substantial” government interest;
2. does not “burden substantially more speech than is necessary;” and
3. leaves open “ample alternative channels for communication.”

Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The Court held that the statute was constitutional. First, the Court held that the statute was not a presumptively invalid content-based regulation of speech. The Court found there to be a substantial governmental interest in deterring the production and distribution of child pornography. It listed several reasonably tailored ways the statute’s universal age-verification requirement advanced the interest. This included ensuring that primary producers confirm the age of their performers and prevent children from attempting to pass themselves off as adults. As a result, it found the statute justified in regulating the records of those producing sexually explicit material.

The magazine and its advertisers further argued that the law was overbroad and would be unconstitutional as applied to a magazine that depicted only “mature adult models” who “are clearly and visibly not minors.” Connection at 336. However, the Appellate Court did not find this to be sufficient to justify declaring the statute invalid. It found that hypothetically unconstitutional applications of the statute to sexually explicit depictions of obviously mature adults did not demonstrate the level of substantial over breadth that is necessary for invalidation.

The U.S. Supreme Court subsequently denied the appellants’ request to have the case heard by it. Connection Distrib. Co. v. Holder, 2009 U.S. LEXIS 6926 (U.S., Oct. 5, 2009).

It appears unlikely that 2257 will be found unconstitutional anytime soon. Therefore, it is important that those producing sexually explicit films and other materials become familiar with the statute’s requirements in order to avoid criminal liability. 

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC