Attorneys Speak At AEE Open Forum

LAS VEGAS – Is choking in adult videos illegal? Is it okay to show a bound person having sex? What can you show on a DVD cover? Is taking your adult website offshore a good idea?

These were some of the questions answered by the attorneys on the panel of the Adult Products Law Open Forum, and the audience of about 75 soaked it all in and asked for more.

Delivering the sometimes-gory legal details were four veteran attorneys: Allan Gelbard, who prevailed in both the Evil Angel piracy lawsuit and the JM Productions prosecution; Reed Lee, the constitutional expert from Chicago; Lawrence Walters, adult Internet expert and defender of free speech (not to mention webmistress Karen Fletcher); and Michael Fattorosi, the newest attorney on the adult scene but an established mainstream entertainment lawyer.

The answers to the choking/bondage questions turned out to be more complicated than a lay person would have guessed. Lee noted that all depictions of sexually explicit conduct carry the threat of obscenity charges, and he wasn’t about to try to tell any producer what he/she could or couldn’t shoot. He did mention the three-part Miller test for obscenity, which states that material which appeals to the prurient interest, is patently offensive and violates local community standards could be found obscene, if it didn’t have any literary, artistic, political or scientific value – and in fact, he suggested that anyone producing hardcore with choking or bondage might think about adding some of that scientific value; say, a discussion of the dangers of erotic asphyxia.

Walters brought up the problem of the “community standards” of the World Wide Web, noting that that issue still hasn’t been resolved, since the legendary COPA case, recently the subject of a trial in Philadelphia, is headed for the Supreme Court once again. However, he did say that it was a myth that it was illegal to depict sex and bondage in the same movie.

Fattorosi analogized the situation to the recent Brooke Ashley worker compensation case, where Ashley was declared an employee of the production company on whose set she allegedly contracted HIV (one of the parties is appealing that decision), and noted that if a performer were injured while engaged in a choking or bondage scene, a similar legal battle could be played out over that incident as well.

Most of the other answers weren’t quite as complicated as that one, but they did cover a fair amount of territory. Topics included what images can be depicted on a DVD cover (Answer: Whatever’s in the movie itself, bearing in mind local standards); whether a webmaster can be held liable for images on another website on the same server (Answer: No); whether an employee at an adult business charge sexual harassment (Answer: Yes, so it’s important to be professional in the workplace); whether offshore websites are a good idea to avoid an obscenity prosecution (Answer: They can be, if done properly); how hotels can provide adult pay-per-view while adult stores have been zoned out of the same area (Answer: Their business isn’t primarily the sale of adult products); how to keep potential investors from stealing your unique idea (Answer: You can try a non-disclosure agreement, but it might not work because chances are, your investor is much better capitalized than you are and better able to defend against your lawsuit); and several more.

One of the longer series of questions revolved around the recordkeeping and labeling law, 18 U.S.C. §2257, including what it is; who has the right to see records of your productions; and whether third-party recordkeepers are acceptable under the law.

The forum also covered the topic of the recent Occupational Health and Safety Administration (Cal-OSHA) raids on porn sets, with Fattorosi discussing the Brooke Ashley case in somewhat more detail (but without mentioning her name; something he’s forbidden to do by court rules). He noted that Cal-OSHA has mandated that producers put together a “blood-borne pathogens” avoidance program, and wants various sex acts to include the use of dental dams, goggles and condoms.

“It will make the industry very sterile if that happens,” Fattorosi predicted.

While it’s unclear is the Ashley case will become precedent, Fattorosi advised producers to buy worker compensation insurance when shooting sex, claiming that the premium would be easily affordable … and might save the production company many headaches later on if an injury occurred.