INTERNET PICTURE REMOVAL LAW BLOG

Do the 2257 Record-keeping Requirements Violate the First Amendment?

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

A Lawsuit for File Sharing of Adult Films Can Proceed Against a Variety of Producers in the Same Case

According to a decision by the U.S. District Court for the Southern District of New York last month, a lawsuit against hundreds of defendants who allegedly engaged in infringing activity when they shared adult entertainment film files through peer-to-peer networks will proceed. In re Adult Film Copyright Infringement Litigation¸ No. 11 Civ. 7564 (March 26, 2012).

The plaintiffs in that case are owners of copyrights or the exclusive rights to various adult-entertainment films. They are alleging that the defendants, who remain unnamed (“John Doe defendants”), infringed on the plaintiffs’ copyrights by duplicating and distributing their copyrighted films through file-sharing software. The Court had previously consolidated the actions, allowing the plaintiffs to join the defendants and sue them as one group.

Four defendants filed a motion to dismiss or sever the various claims against them. Their basis was that joining them in the same case was improper under the standard set forth in Federal Rule of Civil Procedure 20(a)(2). That Rule sets forth the following standard for permissive joinder of defendants:

1)      any right to relief is asserted against them jointly severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

2)      any question of law or fact common to all defendants will arise in the action.

F.R.C.P. 20(a)(2).

The Court disagreed. It determined that joinder was appropriate, finding that the plaintiffs’ allegation met the requirements of both a common transaction or occurrence and common question of law or fact. First, the plaintiffs alleged that the Doe defendants traded not only the same film, but the same exact file of the copyrighted work. The Court found that this alleged sharing – through a “peer-to-peer network” that uses “swarm” system to distribute to network users – was sufficient to assert a common transaction or occurrence. Second, the Court found that there were common questions of law because the allegations against each Doe defendant are identical. The Court dismissed the motions without prejudice. (The Court also noted that severance, not dismissal, would be the appropriate remedy for misjoinder. F.R.C.P. 20, 21.)

The case will now move forward with the plaintiffs’ claims for copyright infringement pursuant to the U.S. Copyright Act. 17 U.S.C. §§101.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

What Are The Identification Requirements Under 18 USC 2257?

In order to avoid criminal liability under 18 U.S.C. §2257 (“2257”) and its related regulations (“Regulations”), such as 28 C.F.R. 75, it is important for those producing adult explicit content to be familiar with the basic identification rules that the law requires.

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 a prescribed manner.

As required in Section 75.2 of the Regulations, the actor documentation should be in the form of a picture identification card. That Section requires that when producing adult content, the Custodian of Record must maintain documentation of “the legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card prior to production of the depiction.” 28 C.F.R. 75. Section 75.19(b) specifically defines the requirements for the picture identification card as follows:

1)      It must be issued by the United States, a state government (or political subdivision thereof, or a U.S. territory)

2)      It must bear the photograph, name and date of birth of the person identified.

3)      It must provide specific information that is sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (“Green Card”), or employment authorization document issued by the United States, a driver’s license or other form of identification issued by a state or District of Columbia; or a foreign government-issued equivalent of any of the documents listed above when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the United States at the time of original production and the producer maintaining the required records, whether a U.S. citizen or not, is located outside the United States on the original production date.

4)      It must be valid as of the original production date.

28 C.F.R. 75.19(b).

In addition, the producer should maintain the identification documentation in the prescribed manner. Producers are required to include and keep a copy of the document that was examined before the creation of the adult work within a record-keeping system as detailed in section 75.2(a)(1) of the Regulations. That Section states that “the records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined.” 28 C.F.R. 75.2(a)(1).

Examples of identification documents that comply with the regulations include:

1)      A valid U.S. passport (or, if the performer and producer are both outside the U.S., a valid passport issued by a foreign government).

2)      A valid state identification card.

3)      A valid state driver’s license.

4)      A valid identification from either a state college or university, so long as it contains a clear picture of the person identified along with their legal name, date of birth and document identification number or some other information that allows one to confirm the document’s validity.

Examples of identification documents that might not sufficiently comply with the regulations include:

1)      A Social Security card.

2)      A valid passport issued by a foreign country for any performer where the performance that creates the content subject to 2257 regulations is in the U.S.

3)      A valid identification from a private college or university.

4)      An identification document that does not contain a clear picture of the person identified.

5)      An identification document that is invalid.

The consequences for violating 2257 are very serious, including the possibility of penalties and incarceration. Knowing the law’s requirements, and what forms of identification are sufficient to meet those requirements, are critical to complying with the law.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

What Is The “2257 Distributor Obligation”?

Though 18 USC §2257 (“2257”) imposes well-known requirements regarding record-keeping and labeling on producers of sexually explicit material, it also places certain rules on those who are not directly involved in the production of the content. 18 U.S.C. §2257. Though these individuals play less of a role in the production of the material, secondary producers and non-producers can sometimes find themselves facing penalties just as serious as those faced by producers found in violation of the statute. 

One example of such a requirement is found in section (f) of 2257, which imposes obligations on distributors of adult content. This “2257 distributor obligation” applies to sellers and distributors of the content, even though they might not be held to the same requirements as a primary producer of such material.

Specifically, section (f) states that it shall be unlawful:

“(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, which –

(a)    contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and

(b)   is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

which does not have affixed thereto…a statement describing where the records required by this section may be located, but such person shall have no duty to determine the accuracy of the contents of the statement or the records required to be kept.”

18 U.S.C. §2257(f)(4).

This language extends a responsibility to certain individuals who may not be primary producers who are subject to the more well-known record keeping requirements. An individual who uploads the content to a website server (thus becoming a secondary producer) can fall under the purview of section (f) if the content being uploaded is subject to 2257 regulations.  This extends to any individual who knowingly offers, sells or transfers the materials in some way.

The Department of Justice has demonstrated that a 2257 violation is a fully chargeable offense, so the lack of attention to section (f) does not make the crime any less serious in the eyes of the law. It is important for those handling materials subject to the 2257 regulations to realize the statute requires all distributors – even those on a secondary level – to display a proper compliance statement on the material that indicates where the required 2257 records are kept.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

How Does 2257 Apply To Live Web Cam Chats?

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

© 2012 Nissenbaum Law Group, LLC

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

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

© 2011 Nissenbaum Law Group, LLC

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