Like a bad penny or your aunt's fruitcake, final amendments to the 2257 regulation have been thrust upon the adult entertainment industry. Accompanied by approximately 150 pages of explanations and comments, 28 C.F.R. Part 75 has been rather thoroughly overhauled, with changes that run the gamut from helpful to puzzling. For now, let's start with some major changes related primarily to hardcore productions. Follow-up articles will address other aspects of these extended comments and regulation changes.
Third Party Record-Keeping OK'd
Yes, you read that correctly. After refusing to allow the industry to use third-party record-keepers during the 2005 round of changes to the regulation, the Department of Justice has finally decided that you can farm out your 2257 compliance: "A primary or secondary producer may contract with a non-employee custodian to retain copies of the records that are required under this part. Such custodian must comply with all obligations related to records that are required by this Part, and such a contract does not relieve the producer of his liability under this part." 28 C.F.R. 75.3(h).
Talk about a mixed bag. An adult business owner who does not have the expertise to feel comfortable running a 2257 database may now hire a third party to perform the task, yet he's blessed with full criminal liability for the third-party record-keeper's errors. Sure, he doesn't have to personally sweat over record-keeping issues, but he gets to lay awake at night wondering if someone else's negligence will someday come back to haunt him.
Moreover, third-party record-keeping is fraught with important unanswered questions, not the least of which involves the confidentiality of the process. Assume, for instance, that a single third-party record-keeper is central to numerous producers. When the inspectors arrive for the records of Producer A, will they be put in a position to observe the records (and possible deficiencies therein) of Producers B through Z? If the record-keeper makes a systemic error, does that put all of the producers for whom he keeps records at risk? (Seriously, if it comes to a federal agent's attention that a third-party record-keeper for multiple companies has made a fundamental record-keeping mistake - for instance, not cross-referencing - in one client's database, wouldn't she assume that the same fundamental error exists in all of that record-keeper's databases?) Non-criminally, will deficiencies in your record-keeping become the stuff of industry gossip, harming your sales? Bottom line: Look before you leap into third-party record-keeping, and make sure you've got a contract that keeps the record-keeper's feet to the 2257 compliance fire (including confidentiality clauses and a provision giving you or your representative the right to make unannounced inspections of your own records so that you can sleep at night).
Performer Records Redactions
Speaking of confidentiality, the new regulation formalizes Department of Justice policy regarding redaction of certain information from performer identification records. Confirming the position it took during litigation of the Free Speech Coalition v. Gonzales litigation in Denver, Colorado, the Justice Department acknowledges that "copies of" performer records "may be redacted to eliminate non-essential information, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm the name and age may not be redacted." 28 C.F.R. 75.2(b). Note that the redaction provision appears to apply only to copies of records being provided to secondary producers (meaning primary producers should not redact their own original records).
Date of Original Production Now Required
Finally, the days of anyone thinking that the date of production of a compilation is somehow relevant to determining whether the performers were of age are over. While the necessity and legality of 18 U.S.C. 2257 and its regulation will continue to be debated and litigated, we now know for sure what "date of production" means: The date of original production. But it is important to read the entire definition of "date of original production or original production date" because it's precisely nuanced in a way that differs significantly from how DOJ measured the date of production after the 2005 amendments to the regulation.
The prior regulation did not define "date of production," leaving it to each producer to decide what the appropriate date was for each production. Further, during litigation of Free Speech Coalition v. Gonzales, the Justice Department took the position with respect to multiple-day shoots that "it is sufficient to include the date upon which the original work was completed as opposed to the last date a film was duplicated."
Now, however, the date of original production is specifically defined as "the date the primary producer actually filmed, videotaped, or photographed, or created a digitally- or computer-manipulated image or picture of, the visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct." 28 C.F.R. 75.1(m). Moreover, DOJ changed its position on multiple-day shoots, directing that, "For productions that occur over more than one date, it means the single date that was the first of those dates." 28 C.F.R. 75.1(m). This raises the obvious question of how to handle the date of production related to a performer who turned 18 during a multiple-day shoot. The new regulation also answers this question: "For a performer who was not 18 as of this date, the date of original production is the date that such a performer was first actually filmed, videotaped, photographed, or otherwise depicted." 28 C.F.R. 75.1(m). Consequently, primary producers may now have two different dates of production for a work depending on whether they use performers who are not of age as of the first day of shooting.
But what about comps? One would think that the date of production on a comp would not be relevant to determining the age of any performers in the compilation because the composition is entirely secondary to the original production. Not so, according to the new regulation: "With respect to matter that is a secondarily produced compilation of individual, primarily produced depictions, the date of original production of the matter is the earliest date after July 3, 1995, on which any individual depiction in that compilation was produced." 28 C.F.R. 75.1(m). Seems simple enough, right? Well, check out the next line of the definition: "For a performer in one of the individual depictions contained in that compilation who was not 18 as of this date, the date of original production is the date that the performer was first actually filmed, videotaped, photographed, or otherwise depicted for the individual depiction at issue." Translated: For every performer in a compilation who turned 18 after the production date of the earliest depiction in the compilation, you must have the date on which he or she was first filmed. Not only does this make no sense in terms of relevancy, it is a very burdensome task: If scene X is published on its own (not in a comp) and all of the performers were 18 before the first day of the shoot, then all the producer would have to know is the date of filming (or the first date of a multiple-day shoot). But if scene X is published in a comp containing a scene that has an earlier date of original production, now the producer of the comp must be concerned with the date of first filming of any performer in scene X who was not 18 by that earliest original production date associated with an entirely different production. So, it looks like the days of irrelevant comp dates are not entirely over.
Date of Production Need Not Be Stated in 2257 Label
Fortunately, producers get a break when it comes to stating the date of production in the 2257 label. It is no longer required for either primary or secondary production labels, though the primary producer must maintain the date of original production in his records for each regulated matter. 28 C.F.R. 75.2(a)(4). Further, the name of the custodian of records need not be listed: "If the producer is an organization, the statement shall also contain the title and business address of the person who is responsible for maintaining the records required by this part." 28 C.F.R. 75.6(c).
There is, however, an addition to some 2257 labels: If you use a third-party record-keeper, your 2257 label must contain the name and business address of that custodian. 28 C.F.R. 75.6(f).
Hyperlinks and Mouse-Overs to 2257 Statements are Allowed
When the 2006 Adam Walsh Act enacted the requirement that a 2257 label be affixed to every page of a Web site that contains a depiction of actual sexually explicit conduct, producers began to question whether the hyperlinks to 2257 labels allowed in the 2005 amendments to the regulation were still permissible. The new regulation answers that question in the affirmative, and includes mouse-overs. 28 C.F.R. 75.8(d). However, you must be careful to properly label the hypertext link (even when using a mouse-over) with the statement, "18 U.S.C. 2257 [or 2257A, if appropriate] Record-Keeping Requirements Compliance Statement." 28 C.F.R. 75.8(d).
Location of 2257 Statements on DVDs
In the new regulation, the Justice Department cleared up a long-standing question regarding where to place a 2257 label or labels on a DVD with multiple depictions. While it might seem like a simple matter, DVDs presenting numerous, independent scenes, BTS footage, promos, etc., heretofore had also presented 2257 labeling headaches. Now, however, DOJ has made clear that "a digital video disc (DVD) containing multiple depictions is a single matter for which the statement may be located in a single place covering all depictions on the DVD." 28 C.F.R. 75.8(e).
But, what is that "single place" for the statement? Formerly, we analogized DVDs to films, where the "single place" was either within one minute from the start of the film and before the opening scene in films that do not use end credits or at the end of the end credits in films that use end credits. Now, DOJ has created a 2257 labeling provision specifically for DVDs, and in comments has stated that the location should be "analogous to a magazine containing multiple depictions," as per 28 C.F.R. 75.8(a) (requiring a 2257 label on a single page).
Lascivious Exhibition of the Genitals or Pubic Area
In 2006, the Adam Walsh Act added "lascivious exhibition of the genitals or pubic area" to the types of conduct considered "actual sexually explicit conduct" regulated by 18 U.S.C. 2257. The amendments to the regulation make clear that lascivious exhibition of the genitals or pubic area will be a focus of regulatory enforcement, though producers of images limited solely to depictions of such lascivious conduct will be given 90 days from the date of publication of the regulation in the Federal Register to comply (as opposed to the 30 days allotted for compliance with most other changes in the rules).
Lascivious exhibition of the genitals or pubic area is a very troublesome aspect of the statute and the regulation because it is so hard to define. The comments to the regulation make this task no easier because the Government insists on relying on United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), and other true child pornography cases for the standards by which lasciviousness is determined. (E.g., is the focal point of the depiction on the genitals or pubic area? Is the setting of the visual depiction sexually suggestive? Is the performer depicted in an unnatural pose, or in inappropriate attire considering his or her age? Is the performer fully or partially clothed, or nude? Does the visual depiction suggest sexual coyness or a willingness to engage in sexual activity? And is the visual depiction intended or designed to elicit a sexual response in the viewer?) These questions, adapted from Dost to reflect application to adult content, will almost always result in answers that auger in favor of a finding of lasciviousness because material made by adults for other adults usually triggers one or more of the Dost standards. Accordingly, the threshold for what constitutes a lascivious exhibition of the genitals or pubic area (even a clothed pubic area) appears to be rather low. This is definitely an area where caution is the by-word.
Partial Copies of Depictions of Live Performances Now Required
As many of you may recall, one of the major changes of the 2005 regulation was adoption of a requirement that 2257 records contain a copy of any regulated depiction created after June 23, 2005. However, this requirement was enjoined by the District Court in Free Speech Coalition v. Gonzales with respect to live chat rooms because of the burdensome nature of the obligation in that specific respect. Now, DOJ's solution is as follows: "For any performer in a depiction performed live on the Internet, the records shall include a copy of the depiction with running-time sufficient to identify the performer in the depiction and to associate that performer with the records needed to confirm his or her age." 28 C.F.R. 75.2(a)(1). The new regulation does not specify how long of a running-time is sufficient - is a clear screen cap sufficient? - and it does not appear to take into account the difficulties associated with live chat operations where different performers come and go repeatedly during lengthy live productions. For instance, if a live chat starts off with one performer and morphs into a multiple performer scene over a period of time, it would appear to require some human intervention to record a sufficient running-time of each performer who makes an appearance during the broadcast. Undoubtedly, that would be a costly and time-consuming endeavor.
"Distributor" Takes on New Meaning
The new regulation exempts "distribution" from the category of "producer," which is not much of a change from the prior version of the regulation. However, 28 C.F.R. 75.1(c)(6) also provides that, "Unless the activity or activities are described in section 2257(h)(2)(a) [the definition of "produces"], the dissemination of a depiction without having created it or altered its content" is not a producer activity. This exemption is very limited, though. First, activities such as digitizing an image or inserting an image on a computer site or service or managing the sexually explicit content of a computer site or service are not exempt. Second, certain activities such as pixilation would be considered an alteration of content sufficient to eliminate the exemption for distribution.
That's a quick overview of some of the major changes in the 2257 compliance arena. There are several more of note, which will be discussed in the next installment.
Next Up: Tube-sites and Adult Social Networks; 2257A Regulations; Various DOJ Comments
