So far, almost all the discussion about the requirements and pitfalls of the federal recordkeeping and labeling law, 18 U.S.C. §2257, has focused on the duties of video manufacturers and webmasters. But even though the regulations say anyone involved in "mere distribution" of a 2257-covered product is not required to keep records on the performers therein, that doesn't mean that video retailers are necessarily completely in the clear.
The problem lies with the fact that not all video producers follow all of the 2257 requirements when they release a tape or DVD for sale.
"The main thing for a retailer is to be sure that the label or 'disclosure,' if you will, is on its face valid," instructed First Amendment attorney Clyde DeWitt. "In other words, that it's there, that it's in the right place, that it has an address that is not obviously a post office box, that it has one of the multitude of dates that's required, and that it identifies the custodian of the records, and the title of the movie, which is usually somewhere on the box; if it is, it doesn't have to be within the 2257 label itself."
That's the easiest part for producers to get right, but it's surprising how many of them don't. AVN reviewers have seen labels that don't specifically identify one person with the title "Custodian of Records," or attempt to claim that the records custodian is the manufacturing company itself. Both of those are violations.
"The statute expressly says that the person who's doing nothing but selling or transferring the movie [has] no responsibility to verify either the accuracy of the statement or the correctness of the records," DeWitt stated. However, if the information that's supposed to be there isn't, or it isn't in the proper form, the retailer can be found criminally liable for having sold a 2257-defective product — and that can mean years in federal prison!
From this point on, things get even trickier. For instance, most retailers assume that every tape or disk that contains hardcore sexual content must have a 2257 label, but that's not necessarily correct. DeWitt notes that if a video or DVD box contains no hardcore depictions, no notice is needed for the box, though if the contents are hardcore, the label must appear within the production.
Finally, there's the recorded "actual sexually explicit conduct" itself. The information required to be provided under 18 U.S.C. §2257 — title of the feature, date of production, name of the records custodian and the address where the records can be found — must appear immediately after the end credits of the feature, or if there are no end credits, within one minute of the start of the videotape or DVD, and before any sexually explicit images are presented. However, if the feature was made before July 3, 1995, a statement that the work is exempt from 2257 requirements must be included in the same locations as the 2257 compliance statement.
Simple enough, but there are still plenty of ways that a manufacturer can slip up. For instance, even "golden age" tapes and disks, whose main feature was made before July 3, 1995, may still contain advertisements and/or trailers that were made after that cut-off date, and they would require a 2257 compliance statement (which, again, must appear before any hardcore footage is shown). That applies to tapes and DVDs of features made after the cut-off date as well.
"Any visual depiction of actual sexually explicit conduct must be associated with 2257 compliance requirements," DeWitt summarized, "and if that's what the advertisements have, then you have to have it for the advertisements; if that's what the trailers have, then you have to have it for the trailers."
Now, does that mean that every retailer must examine every videotape and DVD in his/her stock?
"Not necessarily," DeWitt replied. "The key is to know who you're buying from. If you're buying from a reputable manufacturer or through a reputable distributor, you probably should only have to look at a few titles from that manufacturer, and if everything seems OK with the labels on those titles, you can be pretty sure that the rest of that company's product complies as well."
Remember: Selling a tape or DVD whose label doesn't fully comply with the requirements of the recordkeeping and labeling law can be worth two years in prison for each violation!
