INTERNET PICTURE REMOVAL LAW BLOG
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.;
or masochistic; or
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.
© 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.
© 2012 Nissenbaum Law Group, LLC
One of the unanswered questions in the adult industry is to what extent the prostitution laws prohibit the activities underlying the adult content. The position taken by Arizona officials on this issue is that the activity underlying adult content would violate their prostitution laws. See http://blogs.phoenixnewtimes.com/valleyfever/2012/03/bill_montgomerys_warning_to_th.php
The relevant law is contained in Title 13, Section 3201 et seq. of the Arizona Revised Statutes. It states:
13-3201: Enticement of persons for purpose of prostitution; classification
A person who knowingly entices any other person into a house of prostitution, or elsewhere, for the purpose of prostitution with another person, is guilty of a class 6 felony.
13-3202: Procurement by false pretenses of person for purpose of prostitution; classification
A person who knowingly, by any false pretenses, false representations or other fraudulent means, procures any other person to have illicit carnal relation with another person, is guilty of a class 6 felony.
13-3203: Procuring or placing persons in house of prostitution; classification
A person who knowingly receives money or other valuable thing, for, or on account of, procuring or placing in a house of prostitution, or elsewhere, any person for the purpose of prostitution is guilty of a class 5 felony.
13-3204: Receiving earnings of prostitute; classification
A person who knowingly receives money or other valuable thing from the earnings of a person engaged in prostitution, is guilty of a class 5 felony.
13-3205: Causing spouse to become prostitute; classification
A person who knowingly by force, fraud, intimidation or threats, causes his or her spouse to live in a house of prostitution or to lead a life of prostitution, is guilty of a class 5 felony.
13-3207: Detention of persons in house of prostitution for debt; classification
A person who knowingly detains any person in a house of prostitution because of a debt such person has contracted or is said to have contracted, is guilty of a class 5 felony.
13-3208: Keeping or residing in house of prostitution; employment in prostitution; classification
A. A person who knowingly is an employee at a house of prostitution or prostitution enterprise is guilty of a class 1 misdemeanor.
B. A person who knowingly operates or maintains a house of prostitution or prostitution enterprise is guilty of a class 5 felony.
13-3209: Pandering; definitions; methods; classification
A person is guilty of a class 5 felony who knowingly:
1. Places any person in the charge or custody of any other person for purposes of prostitution.
2. Places any person in a house of prostitution with the intent that such person lead a life of prostitution.
3. Compels, induces or encourages any person to reside with that person, or with any other person, for the purpose of prostitution.
4. Compels, induces or encourages any person to lead a life of prostitution.
13-3210: Transporting persons for purpose of prostitution or other immoral purpose; classification; venue
A person knowingly transporting by any means of conveyance, through or across this state, any other person for the purposes of prostitution or concubinage, or for any other immoral purposes, is guilty of a class 5 felony. The prosecution of such person may be in any county in which such person is apprehended.
For the purposes of this chapter, unless the context otherwise requires:
1. “Employee” means a person who conducts lawful or unlawful business for another person under a master-servant relationship or as an independent contractor and who is compensated by wages, commissions, tips or other valuable consideration.
2. “House of prostitution” means any building, structure or place used for the purpose of prostitution or lewdness or where acts of prostitution occur.
3. “Operate and maintain” means to organize, design, perpetuate or control. Operate and maintain includes providing financial support by paying utilities, rent, maintenance costs or advertising costs, supervising activities or work schedules, and directing or furthering the aims of the enterprise.
4. “Oral sexual contact” means oral contact with the penis, vulva or anus.
5. “Prostitution” means engaging in or agreeing or offering to engage in sexual conduct with another person under a fee arrangement with that person or any other person.
6. “Prostitution enterprise” means any corporation, partnership, association or other legal entity or any group of individuals associated in fact although not a legal entity engaged in providing prostitution services.
7. “Sadomasochistic abuse” means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
8. “Sexual conduct” means sexual contact, sexual intercourse, oral sexual contact or sadomasochistic abuse.
9. “Sexual contact” means any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast.
10. “Sexual intercourse” means penetration into the penis, vulva or anus by any part of the body or by any object.
13-3214: Prostitution; classification
A. It is unlawful for a person to knowingly engage in prostitution.
B. This section does not prohibit cities or towns from enacting and enforcing ordinances to suppress and prohibit prostitution that provide a punishment for misdemeanor violations that is at least as stringent as provided in this section.
C. For the purposes of sentencing under this section, a previous violation of any city or town ordinance that prohibits prostitution and that has the same or substantially similar elements as this section shall be deemed to be a previous violation of this section.
D. A person who violates this section is guilty of a class 1 misdemeanor, except that:
1. A person who is convicted of a first violation of this section shall be sentenced to serve not less than fifteen consecutive days in jail and is not eligible for probation or suspension of execution of sentence until the entire sentence is served.
2. A person who is convicted of a second violation of this section shall be sentenced to serve not less than thirty consecutive days in jail and is not eligible for probation or suspension of execution of sentence until the entire sentence is served.
3. A person who is convicted of a third violation of this section shall be sentenced to serve not less than sixty consecutive days in jail, is not eligible for probation or suspension of execution of sentence until the entire sentence is served and shall complete an appropriate court ordered education or treatment program.
4. A person who has previously been convicted of three or more violations of this section and who commits a subsequent violation of this section is guilty of a class 5 felony, shall be sentenced to serve not less than one hundred eighty consecutive days in jail and is not eligible for probation or suspension of execution of sentence until the entire sentence is served. This paragraph does not prohibit a person from being sentenced to serve a period of incarceration in the state department of corrections.
© 2012 Nissenbaum Law Group, LLC
The Third Circuit of the United States Court of Appeals recently was presented with another in a series of challenges to 18 USC Section 2257. Free Speech Coalition Inc., v. Attorney Gen. of the United States, No. 10-4085 (3d Cir. April 16, 2012). Importantly, the lower District Court had dismissed the case entirely. However, the Third Circuit vacated much of that determination and remanded the case back to the District Court for further proceedings.
The case was rather involved, and there were a number of bases for the remand. However, one of the more notable was that the claim under the First Amendment of the U.S. Constitution should not have been dismissed. The Third Circuit held that while 2257 was enacted to protect children from sexual exploitation, its breadth was so wide that it “appl[ied] to more than those producers who sexually exploit children. They mandate compliance by ‘[w]hoever produces’ sexually explicit depictions regardless of the performers actual or apparent ages.” 18 USC 2257(a), 2257A(a).
Importantly, the Third Circuit did not opine as to whether the statute was so over broad that it violated the First Amendment, but it did hold that the plaintiff should have had the opportunity to develop a record to seek to make such a case.
© 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.
© 2012 Nissenbaum Law Group, LLC
Looking for advice?
We're here to help.
Contact the Nissenbaum Law Group to schedule an appointment at 908-686-8000 or feel free to use the following form to e-mail us. Please include as much information as you can to ensure that we are able to handle your request as quickly as possible.
2400 Morris Avenue
Union, NJ 07083
P: (908) 686-8000
F: (908) 686-8550
New York, NY 10005
P: (212) 871-5711
F: (212) 871-5712
1500 Market Street
12th Floor East Tower
Philadelphia, PA 19102
P: (215) 523-9350
F: (215) 523-9395
100 Crescent Court
Dallas, TX 75201
P: (212) 871-5711
F: (212) 871-5712