INTERNET PICTURE REMOVAL LAW BLOG

How Does 2257 Apply To Live Web Cam Chats?

by Gary Nissenbaum | Mar 12, 2012

As the adult entertainment industry increases its presence on the web and adult sites enable users to interact by video with performers, it is important to keep in mind that 18 USC §2257 (“2257”) could reach certain aspects of such services. One example of this is the “live chat” capability that has become a popular aspect of the adult entertainment.

Live chats often include a performer who provides live content for an adult cam website, with the user able to watch – and interact with – the performer. The requirements of 2257 might not initially come to mind when one thinks of such live chat capabilities. However, the law’s language suggests that not only does it apply to such situations, but the individual performing the sexual acts on camera could very likely be considered the producer of the material. As a producer, the performer would be the one responsible for complying with the 2257 requirements regarding proper labeling and record-keeping. In other words, there could be criminal liability for failing to adhere to the 2257 requirements.

A “primary producer” is one “who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct.” 28 CFR 75.1(c)(1). Under this language, it is likely that one who is performing the live sexually explicit conduct would be considered a primary producer of the content. As such, the 2257 regulations – including record-keeping and labeling – would attach to the person performing the sexual acts on the web cam.

It is also possible that the ramifications from a performer failing to comply with 2257 could extend beyond that individual. For example, consider an owner of an adult entertainment website that enters into an agreement with a live cam performer. The individual agrees to perform sexual acts on the web cam and the company agrees to aggregate and broadcast the content on its site. The company could potentially be liable for a failure to comply with 2257, either (a) as a distributor failing to comply with its own 2257 requirements or (b) as an entity that aided and abetted the performer in his or her violation of the statute.

Though live webcam performers may not automatically come to mind as potential targets of 2257 prosecutions, the statute’s language suggests the requirements could certainly apply to such performers. As primary producers, the labeling and record-keeping requirements will likely attach to performers and, potentially, to sites that contract to broadcast the performances.

Comments/Questions: gdn@gdnlaw.com

Is it time to change the practice of employing unpaid interns in the film industry?

by Gary Nissenbaum | Nov 23, 2011

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.

Comments/Questions: gdn@gdnlaw.com

The .xxx Extension Presents Opportunities and Pitfalls

by Gary Nissenbaum | Oct 19, 2011

The Internet Corporation for Assigned Names and Numbers (ICANN) has recently approved “.xxx” as the new internet domain name extension for the adult entertainment industry. The ICANN is a non-profit corporation responsible for managing, maintaining and assigning Internet protocol addresses and ensuring the operational stability of the Internet. This new domain allows adult entertainment companies to register their website address with an “.xxx” extension instead of a “.com” extension. ICM Registry, LLC, is the company that is overseeing the transfers to the new extension, while the actual sales are being handled by sites like GoDaddy.com.

The first registration period, called the Sunrise period, began on September 7, 2011 and will end on October 28, 2011. During this period, brand owners in the adult entertainment industry can apply for the new extension (Sunrise A) and brand owners outside of the adult entertainment industry can apply to block such domain registrations to safeguard their marks (Sunrise B). Under Sunrise B, this blocking period is set for at least 10 years. The Sunrise period will be followed by a Landrush period, running from November 8, 2011 to November 25, 2011. During the Landrush period, the domain names will be distributed by a private auction. Finally, the period of general availability will start on December 6, 2011. During this period, anyone who wants to operate an adult entertainment website can register any available .xxx domain on a ‘first-come, first-serve’ basis.

This new extension has brought good news to some and bad news to others. On one hand, it has brought a big smile on the faces of parents, employers and others who can now block access to the “.xxx” websites within their networks more easily. On the other hand, some are faced with a big challenge because of the possibility that the adult entertainment companies may register and use any business or domain name with an “.xxx” extension. So, businesses outside of the adult entertainment industry that don’t want their business name to be associated with adult content would have the option of applying to block such domain registrations.

Comments/Questions: gdn@gdnlaw.com

Online Video Piracy: the Battle Continues for the Adult Industry

by Gary Nissenbaum | Oct 19, 2011

With the rapid increase in consumption of online videos, the adult entertainment industry has struggled to combat online video piracy. Consumers’ easy access to free short clips – most notably, those posted on the “Tube” sites — has hurt the adult producers who earn most of their money from the original full videos. Some adult producers have considered suing individual file sharers for copyright infringement. But, most of them have resorted to sending take-down or cease and desist notices instead. This is why Vivid Entertainment Group’s lawsuit against PornoTube was widely viewed as the adult industry’s first big step in this direction.

In December 2007, Vivid Entertainment Group (“Vivid”) sued PornoTube’s parent companies, Data Conversions, Inc. (operated as AEBN) and WMM, LLC, alleging copyright infringement of at least 50 scenes from Vivid’s adult movies and violation of Federal 2257 record-keeping requirements. The suit was filed in the United States District Court for the Central District of California. Vivid sought permanent injunction against AEBN as well as $4.5 million in damages.

Vivid alleged that PornoTube engaged in willful copyright infringement of its works by using technological advancements. Vivid also alleged that PornoTube’s actions, which included uploading copyrighted works owned by Vivid or others, resulted in a large monetary loss to Vivid. Vivid also sought to pioneer a new legal strategy by alleging that failure to comply with US Code 2257, has given PornoTube and its parent companies, an unfair competitive advantage in the adult entertainment industry. 18 U.S.C. Section 2257, known as the Child Protection and Obscenity Enforcement Act, requires adult producers to keep detailed records of the age and identity of their performers.

Vivid’s complaint alleged that PornoTube did not have records for the performers of the infringed copyrighted videos. This gave PornoTube an unfair competitive advantage over others in the adult entertainment industry because it did not incur the costs associated to maintain the records. This new legal strategy gave some hope to many adult producers, who actively sought new weapons to fight against the infringers.

Unfortunately, Vivid’s unexplained withdrawal of the lawsuit in October 2008, has put those hopes on hold and thus, the battle against the infringers still continues.

Comments/Questions: gdn@gdnlaw.com

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