CYBERSPACE—The Adult Entertainment Expo presented by MyFreeCams is being held virtually this year, but getting together in Las Vegas isn't the only thing the pandemic has put a kibosh on; it's also put a lot of legal issues affecting the adult industry on hold as courts try to prioritize cases to figure out which ones require the fastest attention. On that score, sadly, some issues crucially affecting adult may not be getting court hearings anytime soon.
And as the participants in this year's Legal Panel—moderator Corey D. Silverstein, along with fellow First Amendment attorneys Lawrence Walters, Allan Gelbard and Gil Sperlein—made clear, adult performers and studios are caught between new laws (and a couple of old ones) and regulations that affect their work and income have so far taken a back seat as far as the judiciary is concerned.
After each attorney gave a quick rundown of his practice, Silverstein led off the discussion by asking Gelbard to give a rundown on 2018's AB5, the ballot initiative which had the effect of making many who'd believed themselves to be independent contractors—most notably adult performers—into employees unless they met certain standards of independence.
"The whole idea of being an independent contractor out here is now apparently a legal myth," Gelbard opined. "In fact, just in the last week, the California Supreme Court ruled that the underlying law that supports AB5... is retroactive, so even before AB5 became the law, it was the law apparently."
Indeed; the adult community has faced this same issue from another front, during its multi-year battle with CalOSHA, which has long tried to treat performers as employees, and according to Gelbard, attorneys who represent production studios have been telling those studios that they should be treating performers as employees, and cited a years-old case involving photographers' models that he said supported his position.
"Understand that the way California and the federal government generally look at these things, if you have a lot of control over the person that's doing the job for you, they're probably an employee," he stated. "If they have a lot of control, then they're probably and independent contractor," giving as an example the differences between how a gardener and a housekeeper do their jobs.
"Employment law in California is tricky," he declared, noting that performers forming personal corporations which in turn hired the performer's services to a production company "may not get you there... You can't use a corporate entity to get around the law."
Gelbard also referenced the series of cases he's been involved with dealing with a talent agent's responsibilities to its clients.
"One of the things I heard a lot in circles in the industry with performers is, they don't like the way they're being treated by their agents," he said. "A lot of them are right to feel that way, and there are certain things agents can and cannot do," referencing the state's Talent Agency Act.
Silverstein then suggested that AB5 and a predecessor case, Dynamex, may have sparked an exodus of adult businesses (and others) from the state, but Gelbard stated that he's seen such an exodus over the past ten years but didn't attribute it to the employee/contractor dispute, but more because California is an expensive place to live and do business, and Measure B's restrictions of shooting locations. However, he noted that California is one of the few states with legal holdings—most notably the Freeman decision—that allows adult productions to escape charges of prostitution and pandering.
Sperlein added that he's seen this effect as well, even though rents in the San Francisco area, where he practices, have gone down recently, but he lays much of the blame on the COVID epidemic which has allowed many people to work remotely, so they no longer have to live anywhere near their former offices.
"I would imagine that's happening somewhat also in the adult industry," he said. "Because of COVID, we're seeing a lot of people move into the JustFor.Fans and OnlyFans sites where they're doing either solo content or content with just a few other people, and that allows them to live anywhere... When you're talking about 50 percent of more of your paycheck going to your housing, there's a lot of reasons to live in other places—even Florida."
"We've seen a number of clients move down here, reincorporate in Florida from all over the country, but primarily the northern states," the Florida-based Walters stated.
Silverstein then asked Sperlein, who's an expert on copyright litigation, having represented Titan Media in several cases, about the Case Act, which then-President Trump signed into law and which created a sort of small-claims court-like system for copyright suits seeking less than $30,000 in damages.
"Those were fun times back in the early 2000s when... streaming didn't exist; you could use BitTorrent and whatnot to move stuff around and they were still images," Sperlein explained. "Titan saw early on that there were a lot of renegades out there, and I was able to essentially pay for my own position [with the company] by going out and rounding up infringers and suing them and getting settlements and whatnot."
Sperlein noted that before one can sue for copyright violation, the work in question must first be registered with the federal office of copyright and trademark, and while it used to be that suits could be started even while that copyright was pending, due to a Supreme Court decision within the past 18 months, the work's application must actually be processed and approved before a suit could be begun. He advised producers to set up a regular schedule by which they would submit material for copyright more easily and in a more timely manner. Sperlein also mentioned the Protect Lawful Streaming Act, which he said criminalizes running a pirate streaming service.
"But the feds don't generally worry too much about people robbing from pornographers," he noted.
After a prompt from Silverstein, Sperlein explained more about the Case Act, noting that the small-claims court aspect "would presumably make it easier for small producers to go in and bring claims," he said. However, "the Act leaves a lot of the details up to the copyright office to fill in how these courts are going to operate, and that hasn't been done yet, and there's a big question of whether these courts are going to rubber-stamp copyright holders and put their thumb on the scale one way or another, which may be easier to do... This is something you want to keep looking at."
Silverstein then expressed concern at how the Act seems to mix the judiciary and legislative functions of government. Sperlein agreed, and worried that some producers may be more inclined under this system to act as copyright trolls.
Sperlein also mentioned another new system, the Music Licensing Collective, which "makes it a little bit easier to license music. If you use music from other folks in your videos, that's something else you might want to ask your attorney to look into."
Gelbard had a slightly different take on the new laws.
"When you're talking about adult materials, there's always that issue of diminution of value," he said. "Companies take the position that using their music in an adult space diminishes the value of their particular brand and mark, so we've seen cases where people have sued—AirBNB owners have sued porn companies because there's pictures of people having sex in their homes; they think it devalues their home, so be very careful of that."
Regarding copyright registration, Gelbard opined that, "A lot of people take the position that it's just too expensive or too time-consuming to keep registering your copyrights, and a lot of the people that are working out of their homes these days, working on the clip-models type of systems, one of the things you can consider doing is, the reason you want to have your copyrights registered early on is because if you are registered within three months of the date of first publication or you register before you actually release the product, when you sue somebody, you can get statutory penalties and attorney fees, and that can be a really big hammer against someone. Otherwise, you have to prove that the infringement happened after you registered, and that can be problematic." He further noted that batches of clips can be registered every two months as a single "compilation" work, making such registration eligible for attorney fees in a suit.
Silverstein then turned to the problems created by the FOSTA/SESTA law, which Walters has been intimately involved in challenging, and its relation to Section 230 of the Communications Decency Act, which is generally viewed as a barrier against government censorship of adult material.
"The industry as a whole has thrived under Section 230," Silverstein began. "The big question is, how serious is this attack on Section 230, where is this going and what the hell should people be doing."
"These are issues that we are dealing with in the adult industry for the longest time," Walters responded, "because we rely in large part upon the immunities granted by Section 230 in order to have platforms that will accept this content and not be held responsible for it. The real issue that we're facing here, and this is part of FOSTA/SESTA, is the issue of deplatforming. We saw recently how quickly a large platform like Parler could be taken down with a few big tech companies making that decision... Regardless how you feel about Parler, the same thing could happen to any adult company, any adult platform, any form of controversial speech can now be taken down and kicked off the internet if there's enough public pressure, and that's essentially what FOSTA/SESTA did, was to encourage that kind of deplatforming, shutting down what would otherwise be constitutionally protected speech because the platforms and operators were concerned that anything that's too close to prostitution needs to be taken off the internet. Large providers like Instagram and Tumblr and Facebook decided that means all sexually explicit speech; it all has to go because any of it could be adjacent to prostitution or too close to the line and we really don't know where that line is.
"So now there's all this discussion about amending Section 230, repealing Section 230; there's various aspects of Section 230 that people kind of mix together and don't understand. One is the immunity for any user-generated content. Platforms aren't responsible for public people's speech, and the platforms are able to moderate or take down user content without being sued or without being responsible for that. So this deplatforming is kind of built into Section 230, and there have been pushes by some conservative groups that felt like their voices are being taken down unfairly, their viewpoints are being censored.
"Currently, Section 230 protects the ability of a platform to censor or take down speech, and the intersection here is, we have Section 230 that deals with platforms on the one hand, and then you've got the banking industry that controls the financial aspect of adult entertainment and everything else on the other, and those are the gatekeepers that the adult industry needs to think about and be concerned with. The banks can cut off your credit card processing, as we saw with Pornhub recently, if there's a New York Times article that causes too much public pressure; the platforms can kick you off the internet if they don't like the nature of the speech or if Congress passes a law that said this type of speech is illegal, as they did with FOSTA, so my concern going into this next administration is, what is Congress going to be talking about in terms of amending Section 230? If they're talking about, 'Well, we're gonna take away you Section 230 immunity for any pornography,' that gets dangerously close to a First Amendment violation. It's what they did with FOSTA/SESTA, and our position in the case is, that's unconstitutional as well.
"But the mere discussion of that kind of thing will nudge these platforms into 'cleaning up their act' or taking down adult content. That's the real concern that I see, is the indirect effect that the government can have on private decision-making, and we see now how strong and how powerful that private decision-making is, and how few companies are really in control of what the public gets to see and hear on the internet. That's what the industry needs to be focused on, Amendments to Section 230, government discussion of these changes like in the EARN IT Act, which got dangerously close to adult content regulation. I think we're going to be seeing a lot of that, and we need to be focused on it, push back; if Congress passes laws, they need to be challenged, but that's the biggest concern for the industry I see right now."
Silverstein noted that President Biden has had his own troubles with Facebook, largely concerning his son, and wondered if that situation adds to the complexity of this situation and whether Biden might come down on the wrong side of the issue?
Sperlein added that, "You have to throw Kamala Harris in there too, and her history with Section 230. In fact, she's the one that kind of started the whole thing."
Walters agreed, saying, "She pushed the prosecution against Backpage and Backpage fought back on Section 230 grounds and won, and that made her look bad, so she's got some fish to fry in the Section 230 controversy. Both parties can find something wrong with Section 230. It's easy to blame the messenger, and that's what's going on here: You're blaming a platform provider that is allowing speech to occur for the type of speech that third parties post on the platform... The platforms are front and center, and the allegation is that they could do something about it, they could moderate their content better. As we saw, though, content moderation is not always the answer and usually it results in more censorship, overmoderation of constitutionally protected speech... Using the existing laws we have against things like sex trafficking is a better answer in my view, and using the platforms as a cooperating entity to get the information to go after the bad actors, which had occurred in the sex trafficking world up until FOSTA/SESTA was passed, you had U.S.-based entities that had a lot of information, that would turn over that information to law enforcement, including Backpage itself, but once FOSTA/SESTA was passed, they either shut down or went overseas. Now law enforcement can't get access to that information, they can't track down the real sex traffickers, so the only politically available target is the platforms themselves."
Silverstein then brought up the GirlsDoPorn case, noting that the government had all the legal tools it needed to prosecute them, and noted that both the Backpage and RentBoy cases were prosecuted with pre-FOSTA/SESTA legal tools—a fact with which all the attorneys agreed.
Gelbard voiced his suspicions that much of what has happened around "sex trafficking" and anti-sex work laws has been driven by politicians wanting to be on Facebook or Twitter "showing that they're doing something all the time. Every time some sort of egregious conduct happens, they want to be out there, being pro-law-and-order, so you get these marked overreactions because they think it's just political speech, and I think a lot of them, when they say these things initially, don't think that anything's gonna come of it; they're just making political hay and then all of a sudden, something actually becomes law and then it has to get fought back on. 2257 was the anti-Traci Lords statute, when you go all the way back to the '90s, and we're still fighting that statute in court."
Silverstein double down on the fact that there were enough laws to fight sex trafficking and the like before FOSTA/SESTA, which he called unnecessary, and suggested that that law was "something to make life a little bit easier for the government to get around existing law, to take away some of the defense tactics that lawyers have to protect people charged with these sorts of crimes."
"It was designed to broaden existing laws and provide another tool in the toolchest for federal law enforcement to be able to go after the platforms as opposed to the operators," Walters responded. "In the previous cases, even though they all ended up in pleas, the defense was, 'Hey, I didn't do this; this was just a third party user,' you've got Section 230 out there that says that 'We're not responsible for state law offenses, even, committed by our third party users, and so why are you trying to hold us responsible for this third party posts or advertisements or whatever?' And the government didn't like that, and we ended up with FOSTA/SESTA, which imposes liability directly on the platform for user activity or user content posts, so yes, it is a way to make life easier for law enforcement but it made life miserable for a lot of people that the government was purportedly trying to help, like sex workers, sex trafficking victims. The victims can't identify the perpetrators because the platforms are gone now; a lot of sex workers have been forced out into doing the most dangerous form of sex work which is street work, and they've lost their ability to control their lives and businesses by having an independent business on the internet, so the worst of all worlds has occurred as a result of FOSTA, and law enforcement can't get the records they need to be able to prosecute the actual sex traffickers. This is another instance where the government didn't think through the implications. If they had taken any kind of input from the industry or the folks they were trying to regulate, the platform operators in the adult field, they would have easily learned that these were the likely consequences."
Sperlein added that this whole situation reminded him of the public nuisance statutes that law enforcement used to use to close down adult bookstores: "They knew that First Amendment defenses were going to make it really difficult for them to make a full frontal attack on adult bookstores, so they go to the landlords and say, 'We're going to shut you down unless you do something about this,' and the landlord, even though they might have some of those same defenses, they didn't want to get involved in a legal battle, so they go to the bookstore and said, 'Sorry, your lease is up; you're out.'"
In the time remaining, Silverstein wanted to cover the impact that the COVID pandemic has had on adult studios, and particularly on performers who, not being able to get "conventional content production" work, have been forced to go the independent route, and wondered what advice the attorneys had for those performers?
"For the independent content producers who are filming themselves on a fan site business model," Walters responded, "it's important for them to know that they still have obligations under the law to create 2257 records, even though it's only them appearing in the content... You've got to check your own ID and maintain those records. And if you're producing with anybody else, it's critical to get evidence of consent and have that evidence in a manner that you can produce it to somebody else if there's ever a dispute. As we've seen with GirlsDoPorn and a number of other claims out there where performers are saying they were pressured or they were deceived, they were coerced, they were defrauded into performing, you as a producer need to be able to rebut those charges. If you're doing everything right, you should have the evidence of people signing contracts and maybe even being interviewed on camera before and after the shoot, asking if everything is okay and if you were paid and if you understand English, understand the contract—all those kinds of things so that you can protect your rights to the content and defend against any future fraudulent claims that might be made."
"The single biggest piece of advice I can give anybody that's going into the self-production business is, spend a couple of hours of a lawyer's time and sit down with a lawyer that does what we do and talk to a lawyer and figure out where the landmines are," Gelbard responded. "One of my favorite things to tell clients is, it is easier to keep you out of trouble than to get you out of trouble, and people go into the business and they don't get the right documents, they don't get the right contracts... If somebody knocks on the door, it's much more difficult to get you out of trouble if you don't have the pieces of paper than if you do have them and you show it to them and it's, 'Okay, have a nice day; goodbye.' It is very important that you understand the implications that are going to follow you in making adult content. 2257 is grievously injured but it's still the law. There are elements of obscenity and creating adult materials in a residential neighborhood—there's all sorts of little things that you may not be thinking of that will affect your business, that will cost you a few hours of a lawyer's time and then you'll know and you can go forward and do what you want to do, and you've got a relationship with somebody that you can call up and say, 'I've got a problem; what can I do?' That's the single biggest piece of advice I can give anybody."
Sperlein agreed with all of what both Gelbard and Walters had said, but wanted to add, "I think this bit about the documents is particularly true for gay content, but it's also likely to be true for straight content, and that is what's happening often with the guys, and I assume the girls, they get together and they film the two of them together and their agreement is for each of them to put the content on their own channel. Unlike the case where they say to someone who's not in the industry or doesn't have a site and they say, 'Come on, let's do some content,' in those cases, they're more likely to think, 'Hey, I better get a model release or something that shows consent,' but when you're both in it for the same thing and you're just swapping the content, I think there's a real tendency to do it in a very casual way, which means not getting the releases, and I'm getting requests from law enforcement, both in-country and internationally, for people that are on these sites, they're getting a lot of attention and I'[m getting an increasing number of people who have changed their minds and they don't want to be [in explicit content], and this has always happened but even more now in these more casual sites, so if there's one thing—well, I think the 2257 information is included in it: Just get a simple document—you can use the same one every time; it doesn't have to be changed—and get a signature saying you have the right to use this content. And if you operate one of these fan platforms, this is information you should be sharing with your models. If not, directly connect them with some legal service providers. It's a really big problem. It happens a lot and we're going to see more and more consequences over the coming years."
"I think you're spot-on, Gil," Silverstein added, "and I think the one message I would add to what the three of you said, that is really important, is that I know a lot of you out there are doing these content trades and you're bringing in partners and you're doing all these different arrangements with the different people you create your own content with, make sure you've brought that documentation and kept it straight, because one thing I beg all my clients is, someone who might be your girlfriend, boyfriend, wife, husband, lover, whatever, one day could very well be your enemy the next day, and it is essential you think about that because you might be getting along all fine and dandy right now when you're making the content, but in a couple of weeks from now, if something goes wrong, and you guys go to war over who actually can now use the content, who owns copyrights, et cetera, et cetera, you're gonna want that documentation in order so that is absolutely amazing advice from all the panelists."
Sperlein had one final caveat: "Go back to our first discussion on 1099 because in some places, you should probably be paying them as employees, and I know a lot of lawyers have been saying, 'Well, let's just set up an LLC,' but like Allan said, that's not going to cut the mustard, so I'm not one that cries 'go see a lawyer' about everything. On this issue, the back penalties and back payments that you could be on the hook for are astounding, so make sure you know what you're doing and how you pay your people, even if you're just one guy with a little web cam."
With that, Silverstein brought the discussion to a close, and asked each participant for his final words, and all expressed their appreciation for having chosen to take part in the panel—with Sperlein wanting to remind adult industry personnel that they shouldn't be afraid or embarrassed to consult an industry-adjacent attorney for good legal advice.
Gelbard, however, had one final thought: "Be a good human. If you're a producer, don't try and convince somebody to do a scene they're not comfortable with. Above and beyond the legalities of making porn, sex is involved here, sex is deeply personal; porn lives forever; don't put people in bad situations that you're going to regret or they're going to regret later on."
