By this time you probably are dizzy from hearing about the changes in the labeling and record-keeping regulations that have been proposed by the Bush administration. All of this is about as interesting as the Dewey Decimal System, but it is of dramatic importance to webmasters. Clerical errors can cause you to be carted off to prison.
The most significant proposed change in the regulations is, technically, really not a change at all but, rather, the rejection of a well-reasoned and irrefutable court decision – the decision that says that the requirements imposed upon producers to keep, index and allow inspections of copies of records do not apply to people who are not involved in taking the pictures or arranging for the performers. That circumstances apply to the overwhelming preponderance of webmasters – the ones who do not produce content, but merely buy and display it.
The few webmasters who do produce content are required by 18 U.S.C. §2257 to acquire specified information from each performer, as well as a copy of the required identification document. Those records must be kept, indexed, organized and made available for inspection by any inspector designated by the attorney general. But webmasters who merely purchase their content have been able to simply make sure that it has a disclosure statement (“label”) including the following:
♦The identity of the content, like the title or photo number.
♦The name of the custodian of the records, which is either the person who is the producer or an employee of the production company.
♦The street address (not a post office box) at which the custodian is located, and where the records are located.
♦The date of the depiction’s (choose one) production, manufacture, publication, duplication, reproduction, or reissuance.
That’s it! Make sure the disclosure is on it when it comes in and when it goes out, and you are done. Under the new regulations, there will be more particular requirements for the location of the statement, but it is still a cookbook.
When the Department of Justice in 1992 initially promulgated regulations under the law, it added this new wrinkle to the statute, defining that producers would be either “primary producers,” those that are classically considered to be in the production business, and “secondary producers,” which included anyone “who produces, assembles, manufactures, publishes, duplicates, reproduces or reissues” any qualifying image for commercial distribution. But wait! The statute, which controls and limits the regulations, says that those who “produce,” and therefore must keep, index and allow inspection of records, do not include anyone who is involved only in “mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted.”
How could they require so-called “secondary producers” – who are not “producers” at all under the express exclusion of the statute – to do all of those things that are required for “producers” that shoot the movies and hire the talent? The answer is, they can’t, and the court so found in the only case to address the issue, Sundance Associates, Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998). And that court is one of the thirteen federal courts of appeals around the country, which reside just below the Supreme Court in pecking order.
The proposed, amended regulations completely ignore the Sundance case, by requiring webmasters who merely purchase content and re-broadcast it to do all of the record keeping that is required of producers who shoot the photographs and movies. The Department of Justice has some kind of chutzpah, having thumbed its figurative nose at the United States Court of Appeals for the Tenth Circuit. Perhaps the DOJ thinks that it is on a mission from God, along with Jake and Elwood Blues, and that God is even higher than the Tenth Circuit (which, as it happens, is located in Denver, the “Mile-High City”).
The Department of Justice either is going to back down on this or be defending itself in court. Why? Because if they don’t go to court, the following is what webmasters who do not produce their own content are going to be required to do, according to the proposed regulations:
♦Obtain from the producer of all content copies of the identification documents and the information given by the performers.
♦Index all of the records according to depiction, performers’ real names, performers’ maiden names, performers’ nick names, performers’ aliases and performers’ stage names.
♦Appoint an employee to act as custodian.
♦Appoint a special place at their office for these records to be located – separate from any other records and not including any other records.
♦Be open for business from 8:00 AM to 6:00 PM local time every day of the year to allow surprise inspections of the records by a Department of Justice appointee.
Not a small inconvenience, is it? But it is required, because the webmaster “publishes, duplicates [or] reproduces” the content, making him a “secondary producer.” And don’t forget that if you don’t do everything perfectly, you are guilty of a felony, subject to up to five years in prison.
So, perhaps now you see why the industry is going to be marching off to court if the Department of Justice doesn’t back off on this component of the proposed regulations. This is huge!
Clyde DeWitt is a partner in the Los Angeles, Calif.-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.
