This article originally ran in the June 2015 issue of AVN magazine. Click here to see the magazine online.
Last month, this column addressed some of the legal issues that arise from shooting adult content. As noted, there are more.
Prostitution and Pandering
Think about it: if you hire someone for sex, isn’t that prostitution? That is what the laws of every state—well, except for a couple of dozen legal brothels in Nevada—say. Not all prostitution laws say the same thing, but the trend is to increase the scope of the laws—so-called “human trafficking” laws—and the potential punishment. Insofar as the author and any of his circle of friends (read: First Amendment Lawyers Association members), there are only three states that have weighed in on the issue of whether prostitution and pandering laws—and presumably some of the recent human trafficking laws—apply to movie making: California, New Hampshire and New York (see footnote).
In short, California and New Hampshire came out the right way for adult content producers; New York, believe it or not, came out the wrong way. However, the California and New Hampshire cases that came out the right way were from those states’ highest courts. The New York case is not. (In New York, the “Supreme Court” is not its highest court; rather, the New York Court of Appeals holds that position. The decision applies only to Manhattan courts, New York expert lawyer and FALA member Ed Rudofsky reports.)
The California case, People v. Freeman, is the story of a hero. Hal Freeman was the proprietor of Hollywood Video, one of the then-handful of adult video manufacturers in the San Fernando Valley in the 1980s; he also directed the videos.
During that period, California cops decided that, since obscenity prosecutions failed to extinguish the porn industry, the solution to the dilemma was to declare adult filmmakers guilty of prostitution (hiring performers to engage in sexual acts) and pandering (rounding up performers). The significance was that, because pimps are a serious threat to young women, California law held that a pandering conviction would result in a minimum three-year sentence without the possibility of probation.
As a result, there were dozens of pandering cases filed against adult production companies. The industry response was to go underground, just like it will if ever there is serious enforcement of the condom-only laws. The difference is that, back then, it took considerable equipment for an adult shoot; now you can put it all into a suitcase.
Hal Freeman was a wonderful guy, and he was a fighter. No plea deal! He was convicted of pandering for a movie called Caught from Behind, Part II and appealed to California’s Court of Appeal. (Anyone convicted of a felony in California has a right to appeal to that court.) A divided Court of Appeal (2-1) upheld the conviction.
Undaunted, Freeman took the case the California Supreme Court, which unanimously tossed out the conviction. And, as cited above, the United States Supreme Court would have nothing to do with it. It reportedly cost Freeman $300,000 (in late 1980s dollars) to defend his case.
Not all that long after that wonderful victory, essentially legalizing the adult motion picture industry in California, the author of this column received a phone call from Al Bloom, a recently retired legend in this industry: “Hal Freeman has cancer and has only weeks to live.” As predicted, Freeman died not long after that call. He never enjoyed many of the fruits from his astonishing efforts. Hal’s daughter, Sherry, took over Hollywood Video, doing well with it for many years. Nice lady!
Local Licenses
Filming takes place in two categories of places, studios and locations. If you live or have ever lived in Los Angeles, you know that you can’t go too long without a traffic diversion for a shooting location. Heaven and the Los Angeles City Hall only know how often the 105 Freeway near LAX is closed for a shoot. Whether adult or not, most locales require a permit to shoot motion-picture or television production outside of a studio. A studio is a commercial business, requiring proper licensing and zoning clearance.
To discuss local requirements for motion picture location permits and studios would turn this article into a multi-volume treatise. Generally, suffice it to say that usually a motion picture studio—of any kind—is listed as a permitted use in certain zones and, in some cases, a conditional use in others. (A conditional use is one that requires a conditional use permit; the nomenclature varies from one place to another, sometimes called “special uses” or something to that effect; the impact is the same.) However, beware of this: Sometimes a locale will attempt to require an adult studio to be classified as an adult use: 500 feet from this; 1,000 feet from that. Remember? Nope. See Voyeur Dorm, L.C. v. City of Tampa Fla., 265 F.3d 1232 (11th Cir.2001). Challenging such an assertion, however, can be an expensive proposition.
Health Tests
There is no statute or regulation of which anyone is aware requiring that adult performers submit to STD tests in advance of a shoot. However, as noted below, there is potential liability. There are industry standards, of sorts—and those standards are not all that clear. Now, although conformance with industry standards is a good defense, the counter allegation might be that it is a negligent industry, especially in California with all of the Cal/OSHA regulations and Measure B. Of course, the way to avoid problems is avoid diseases.
Insurance
If you ever went to the emergency room or urgent care, you may recall that after the “do you have insurance?” question, the second one is “was this an on-the-job injury?” The reason for the second question is that, in apparently every state, the sole remedy for on-the-job injuries is workers compensation insurance.
Here’s how that works: Back in the 19th century, the Industrial Revolution created some pretty hazardous jobs, especially mining and heavy manufacturing. Workers were injured. However, under the law that it existed, an employer wasn’t responsible for an employee’s injury unless the employer was negligent. If the employee was injured as a result of his own stupidity—and you can be sure that it is something that happens constantly—the employer had no responsibility for the injury. Much litigation took place over an issue of whether the employer was at fault. The bottom line was that men who were injured on the job often were on their own for obtaining treatment or compensation for loss of earnings.
The solution was “workmen’s compensation” laws, later changed to workers’ compensation. The idea was to create a quick and efficient way of compensating employees for on-the-job injuries. Here’s how it works:
Every state has a workers’ compensation scheme, although they certainly vary from state to state. Fundamentally, however, they require employers to obtain workers’ compensation insurance on their employees. That insurance has a statutory/regulatory scheme whereby certain injuries are compensated in an established way. If an employee suffers a broken foot on the job, the insurance is required to pay a certain number of weeks of pay plus the medical treatment. The whole process is administrative. The idea is that the employer wants to get the employee back to work. The intricacies of the process are beyond the scope of this article. Importantly, however, every state has severe penalties of one or more sorts, including criminal and substantial civil liabilities, for failure to have in place workers’ compensation insurance.
However, he issue of whether motion picture and television performers are employees or independent contractors according to workers’ compensation laws is not entirely clear. It is a function of state law. The issue of employee-versus-independent-contract under workers’ compensation laws is not necessarily governed by the same rules as those of the IRS, the Department of Labor or local taxing authorities. Why is this important? In the first place, there is the issue of rates. Rates of workers compensation insurance are based on risk. That, obviously, could be a problem. Oddly, one of the worst ratings of any industry is law firms. However, the issue of rates for adult shoots is not all that clear. If a performer acquires an STD on the set, workers’ compensation should kick in. And then some states, particularly California, have the “serious and willful” method of employees getting to employers for more than comp.
Generally
Years ago, at an Internext seminar, an audience member asked a complicated question about shooting content. The author’s response was to the effect of, “The answer is a function of local law; you need to consult your attorney.” “I don’t have one,” the questioner said. The response was, “Do you have a death wish?” Still applies.
Details on cases referenced above: California, People v. Freeman, 46 Cal.3d 419, 250 Cal.Rptr. 598, 758 P.2d 1128 (1988), cert. denied, 489 U.S. 1017, 109 S.Ct. 1133, 103 L.Ed.2d 194 (1989); see also California v. Freeman, 488 U.S. 1311, 1314-15, 109 S.Ct. 854, 102 L.Ed.2d 957 (1989)(denying application for stay because California Supreme Court decision in Freeman supported by adequate and independent state grounds); New Hampshire, State v. Theriault, 158 N.H. 123, 960 A.2d 687 (N.H. 2008); and New York, People v. Kovner, 96 Misc.2d 414, 409 N.Y.S.2d 349 (N.Y. Sup. 1978).
