WASHINGTON, D.C.—Part 1 of Lars Von Trier's latest film Nymphomaniac (or, more properly, "Nymph()maniac," with the parentheses replacing the "o" probably being used to suggest labia and, perhaps inadvertently, to thwart search engines) released last weekend in Europe and is slated to debut stateside at the end of March, and the question the adult industry should be asking is, "How will the U.S. Department of Justice respond to that release?"
"We shot the actors pretending to have sex and then had the body doubles, who really did have sex, and in post [production] we will digitally impose the two," explained Nymphomaniac's producer Louise Vesth. "So above the waist it will be the star and below the waist it will be the doubles."
So ... come next month, what we will have here is a movie that will feature "one or more visual depictions made after November 1, 1990 [just last year, in fact] of actual sexually explicit conduct, and [which] 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."
If that paragraph sounds a bit opaque, rest assured that it won't seem so to the several attorneys who represent clients in the adult entertainment industry: They're almost the exact words contained in the second and third clauses of 18 U.S.C. §2257, the federal record-keeping and labeling law—you know, the one that sent FBI inspectors a few years ago to more than 25 adult content production companies, where the feds inspected their records and filed reports that could have led to federal prosecutions and possible prison terms for many of those companies' executives? It's also the law that is the subject of a lawsuit by Free Speech Coalition and 14 other plaintiffs seeking to overturn it—a suit that is headed back to the Third Circuit Court of Appeals after Judge Michael Baylson's disappointing ruling last year upholding the record-keeping requirements.
Of course, Nymphomaniac's U.S. distributor may try to claim that the movie can avoid all those 2257 pitfalls by having the company send a letter to Attorney General Holder, assuring that Von Trier's production company "certifies to the Attorney General that such person regularly and in the normal course of business collects and maintains individually identifiable information regarding all performers, including minor performers, employed by that person, pursuant to Federal and State tax, labor, and other laws, labor agreements, or otherwise pursuant to industry standards, where such information includes the name, address, and date of birth of the performer." Yes, they could do that under that language quoted from 18 U.S.C. §2257A, if what they were marketing were simulated sexually explicit conduct—but it isn't; it's exactly the hardcore pornography, albeit without the faces being shown, that every adult production company in the United States currently markets under the faux rating "XXX."
Now, there's nothing in the law that will prevent Nymphomaniac from being shown in mainstream movie theaters around the country... but what the law does require is that every copy of the film, every trailer taken from the film that includes depictions of hardcore sex and every photo taken on the set of the film that similarly feature the sexual activity (even if the actual explicitness isn't shown) must carry a 2257 label indicating the name of the film's records custodian and the actual address (not a P.O. box) where those records can be found—and woe be to that distributor if it fails to maintain a file with a government-issued photo ID of the hardcore performer containing "the performer’s name and date of birth," not to mention "any name, other than the performer’s present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name"; not to mention, a list of every movie that performer has done for that producer, all of which must be cross-referenced and maintained in separate files for both the performer him/herself and the movie itself. Oh; and that records custodian must make him/herself available at the records' location for at least 20 hours per week for the next seven years in case any FBI agent or other authorized inspector wants to take a peek at those records!
No sweat, right? Adult producers handle that sort of stuff every day ... at no small cost to either their integrity or their bottom line.
Of course, we don't know (but would like to know) the names of the hardcore performers whose faces won't be shown in Nymphomaniac, so we don't know if they're already familiar with this procedure—and whether producer Louise Vesth followed it in this case.
We do have one additional question, though: Would Lars Von Trier like to join Free Speech Coalition's lawsuit against 2257 as its 16th plaintiff?
Pictured: A scene from Lars Von Triers Nymphomaniac (Part 1).
NOTE: This article has been edited from its original form to note that hardcore action, whether shown explicitly or not, must be present in trailers or photos to require 2257 notices on them.
