Last month, Legal Commentary addressed some of the issues that arise when someone who owns content, usually as a result of producing it, gives somebody else the right to use it. If, after reading that, you started to believe that producing your own content comes with fewer legal traps, you will think otherwise by the time you finish this. Producing content is a minefield.
We begin with the premise that the content you are producing is something racier than a cooking show. So, the first issue that should hit you in the face is that you are hiring performers to act, but the acting includes some form of sexual activity. But if you pay someone to engage in sexual activity, isn’t that prostitution? Well, it is not in California because of a decision by the California Supreme Court called People v. Freeman, 46 Cal.3d 419, 250 Cal.Rptr. 598, 758 P.2d 1128 (1988). Before that decision, there was a constant stream of criminal prosecutions against Adult moviemakers in California for pandering – no small problem because of California’s designated punishment for it: Three years in prison with no possibility of probation.
However, the Freeman decision is at least in part unique to California because it was decided as a matter of state statutory construction. It was also decided on First Amendment grounds, although some argue that the constitutional basis for Freeman has been significantly undermined by intervening United States Supreme Court decisions. So, if you aren’t shooting in California, this is another thing to add to the list of questions to ask your attorney. (If you shoot Adult content without legal advice, you are insane!)
Next, you need to take steps to be sure that you have the right to use the content once you have shot it. There are three bundles of rights involved: The rights of the people in the movie; the rights of the people who made the movie; and the rights (actually powers) of the federal government by way of the labeling and recordkeeping requirement. If you don’t make accommodation for all three of those, you will have serious problems.
You may not believe this, but the people who appear in your movie have a right not to be photographed and recorded, and a right to prevent other people from profiting on their photos and voices. However, they can assign that right to you by consenting to do so. Consent can be oral – a very bad idea, and if you don’t believe that, look at all the litigation that has cropped up around the videos of young women flashing during Marti Gras and spring break. Also, in many states (most notably California), consent for a minor to appear in a movie or magazine must be obtained from the parent or guardian – although that is probably the least significant reason to confine Adult content to adults.
Also, remember that actors who are being paid are employees, triggering all of the employer requirements such as the I-9 immigration form establishing the right to work in the United States as well as state and federal tax reporting requirements. The controversial issue of whether performers can be independent contractors rather than employees is beyond the scope of this article, but suffice it to say that it is an important issue with which you must be familiar on both a state and federal level. That issue can trigger requirements of withholding tax, workers’ compensation insurance, OSHA requirements and more. Another issue beyond the scope of this article is the latter, the Occupational Safety and Health Act, of which there are both a federal version and various state versions. They have given rise of late to a controversy over the issue of whether failing to use condoms in an explicit shoot creates an unsafe, and therefore illegal, working environment.
Next are the people who actually create the content, such as camera operators, musicians, scriptwriters and so on. Whoever those people are, they all participated in creating a copyrighted work. So who owns the copyright? You need to be sure that you do and that they don’t. If those are employees (real employees, including W-2 forms, withholding and all), then it is called “work for hire,” and whoever did the hiring owns the copyright to the movie. But in this industry, things often get blurred, so it is advisable to have a “work for hire agreement” with everyone who participates. Then, you own the copyright as the person or entity that is the “author” of the movie, no matter how many people helped.
Now, once you own the copyright, you need to protect it. There actually is nothing you need to do to obtain ownership of the copyright; if you are the “author,” by law you own it. But if you want to enforce it against infringers, then it is very important that you register it with the copyright office. Once you register it, then not only can you sue an infringer for his ill-gotten gains and, if you can prove them, your losses. You also can recover hefty statutory damages and, most important, attorneys fees. And it is advisable not to waste any time getting the copyrights registered because, if you do not register a copyright within three months of first publication, you cannot benefit from the attorneys fees and statutory damages unless the registration precedes the start of infringing activity. Registration is no big deal: It takes only 30 bucks, a form provided by the Copyright Office, and “depository” copies of the movie. Again beyond the scope of this article is copyright registration of your whole Web site, which is a little more complicated but nonetheless equally important. Also, although “notice” (e.g., © 1999 Joe Smith, Inc.) is not required, it is a good idea.
Last but not least, of course, there is the federal government and 18 U.S.C. §2257. While the 2257 regulations are, at this writing, in a state of flux, since changes were proposed by Attorney General Ashcroft back in June, and those changes have not yet been finalized, there’s no question that the regs require that you examine an identification document of each performer – something you would be crazy not to do anyway. There is a complex definition of what identification documents qualify, but it as simple as this: If the performer doesn’t have a driver’s license, a state ID card (usually issued by the DMV) or a passport, you are taking a real chance. Even if the person is an adult, a bad identification document can be a legal disaster; if he or she is under 18, the consequences are unthinkable. So, examine that driver’s license carefully – the whole thing, including the picture, date of birth, address and anything else that jumps out at you – and if anything looks bogus, investigate further.
You also must ascertain the performer’s age and real name (by the identification document) and any aliases that he or she has ever used, including stage names, maiden names, and so on. You can take the performer’s word for that part. In the process of writing down this information, strike up a conversation with the performer about his or her history, asking probing questions: “Where did you go to high school? When did you graduate?” Ask a lot of “when” questions, and be sure that the answers match the date of birth and the other information. Finally, not only are you required to write down the information, you are required to copy the identification document. And while you are at it, it is a good idea to take a picture of the performer holding up the identification – video is better than stills, because that way you can record the entire conversation. Performers have been known to claim that they appeared in an Adult video only because they were drunk, drugged, coerced or whatever. A video, including discussing what will take place in the scene, will establish otherwise.
Finally, there is the “label,” disclosing the location of the custodian. On a DVD or VHS, it suffices that the custodian information is accurate at the time that the video was shipped by the manufacturer. However, on the Internet, arguably the licensee must know where the custodian is at the time of the transmission of the movie. And don’t forget that the “label” must be affixed to every copy of the image, even if only promotional.
If you are going to produce content, you need to have an attorney set up a system for you – a series of forms and a procedural checklist. Then you need to follow it. Every time! Always!
You also need to keep your ear to the ground, because the environment of content production is constantly changing. You need to keep up with Adult Video News (AVN), which focuses more on video production, not just AVN Online (although you obviously need to read it, as well).
If you never have produced content, doing so is a big step. You need a close working relationship with an attorney. And all of this ignores the artistic aspect of it – and it is not as easy as it looks. It really takes the dazzle out of a scene to see the shadow of the camera operator or hear dialogue that is garbled. But, except for the point that videos with artistic value stand up better in court than sloppy ones, the art topics are for the other columnists.
Clyde DeWitt is a partner in the Los Angeles-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
