“Direct Threat” Defense to Discriminating Against HIV+ and Hep C+ Performers

Recently, there has been much discussion about whether performers in the industry who are HIV+ or Hep C+ or even previously infected with a disease such as syphilis should or could be allowed to perform again, even with condoms. This author has seen numerous tweets, forum message board posts and comments debating whether a production company could knowingly discriminate against a performer who has been infected with a non-curable disease that would be considered a disability under the ADA (Americans with Disabilities Act).

Many commentators and arm-chair attorneys have put forth the notion that to not allow such performers to work in the adult entertainment industry as performers in front of the camera would amount to an unlawful discriminatory act, actionable in court. While this might be true, employers do have a defense to such if they can establish that the infected employee is a “direct threat to the health and safety” of the other performers on set. OSHA and CalOSHA require that all workplaces are safe and free from hazards for all employees.

The direct threat defense is a narrow exception to the general rule that employers may not discriminate based on disability. An employer’s determination that an employee poses a direct threat cannot be based on fears, misconceptions, or stereotypes about the employee’s disability. The employer must make a reasonable medical judgment, relying on the most current medical knowledge and the best available objective evidence.

In deciding whether a direct threat exists, an employer should consider:

  • the duration of the risk
  • the nature and severity of the potential harm
  • how likely it is that the potential harm will occur, and
  • how imminent the potential harm is.

These factors must be weighed against each other to decide whether a direct threat is present. Even if an infected performer is using a condom does this negate any and all possibility of transmission of HIV or other various bloodborne pathogen illnesses during a scene ? What if the condom breaks ? What if the male performer prematurely ejaculates inside of the vaginal or anal cavity or his co-performer ? What risk is there to other members of the crew ? These are questions that need to be answered and addressed by not only the production company staff but also their medical team.

In 2002 the United States Supreme Court squarely decided this issue in the seminal case of Chevron USA Inc. v. Echazabal. Mario Echazabal worked at Chevron’s El Segundo, California oil refinery for some twenty years. During this time, he worked as a laborer, helper, and pipefitter for various maintenance contractors, primarily in the coker unit. In 1992, Echazabal applied to work directly for Chevron at the refinery’s coker unit as a pipefitter/mechanic. He again applied in 1995 for the position of plant helper. On both occasions, Chevron determined that Echazabal was qualified for the job and could perform its essential functions based on his past work history, and extended Echazabal job offers contingent on his passing a physical examination. In late 1993, Echazabal was diagnosed as having chronic active Hepatitis C.

After examination and review, Chevron’s physicians concluded that Echazabal should not be exposed to the solvents and liver-toxic chemicals in the refinery and Chevron withdrew its offer to hire him. They reached this conclusion even though Echazabal’s physicians had not issued any restrictions precluding him from working in the refinery.

Chevron’s decision was based on a medical assessment-which Echazabal contested was not grounded in current medical knowledge or the best available objective evidence-of the ability of Echazabal’s liver to cleanse itself of the chemicals to which he had been, and would continue to be, exposed in the refinery.

The Supreme Court held that before excluding Echazabal as a direct threat, Chevron was required under EEOC regulations to show that it had made an individualized assessment of his then current ability to perform essential job functions. This evaluation was required to have been derived from current medical knowledge and objective evidence.

The EEOC regulations, which were upheld in Chevron, set forth four factors for determining whether a direct threat exists: (1) the potential duration of the threat; (2) the nature and severity of the threat; (3) the likelihood that the threat will occur; and (4) the imminence of the threat. The Supreme Court found this approach reasonable because it supports a particularized analysis of the harm to the employee.

Even though Echzabal posed no harm to any other employee, his Hepatitis C combined with the exposure to the toxins at the refinery posed a threat to his own life. The Supreme Court held that even a threat to one’s self was enough to find that Chevron did not discriminate against Echzabal and remanded the case back to the Ninth Circuit for further hearings. Under the EEOC regulations, Chevron bore the evidentiary burden of establishing the existence of a direct threat. The individualized determination of direct threat also required Chevron to prove that possible accommodations were examined and found not to exist within reason.

I have highlighted that last sentence since it is so important in this matter. While it may be medically possible to determine that a HIV+ or Hep C+ performer is a “direct threat” under the four factors (again each case is different and will be factually based on how and what type of content each company produces) it does not mean that you can simply not hire that performer for any position on the set. It would be recommend that if another position is available (camera person, production assistant, videographer, lighting, craft services ect) that does not require the possibility of fluid transmission, that the HIV+ or Hep C+ performer be employed in that capacity. There is no basis under the “direct threat” defense that an HIV+ or Hep C+ person could not work in any other capacity on set. Failure to accommodate a potential employee’s medical condition can and will likely result in a claim of discrimination with the EEOC or California’s equivalent FEHA.

Therefore, this author cautions any studio or employer in the adult industry that is faced with the potential hiring of an chronically infected performer to seek the legal advice of an attorney experienced and knowledgeable in employment law before making any decisions or even comments to the potential performer. Remember, each potential hire will require an individual assessment as the direct threat. A studio cannot make a blanket decision that they will simply not hire a chronically infected performer.

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Proposed Changes to CalOSHA Bloodborne Pathogen Regs Officially Released…

Even those these regs were leaked last week they have now been officially released by the California Department of Industrial Relations and CalOSHA. The regulations (California Code of Regulations sec 5193.1 ) are attached below.

Here is the email that was sent today by CalOSHA.

Thank you for your participation in this project. The Division has edited the previous draft, which was provided in June 2011. This draft has been sent to the Board staff for their review. It is not a rulemaking proposal at this time. The draft can be found at:

http://www.dir.ca.gov/dosh/doshreg/Section-5193.1-STI-form-9-text.pdf

Additional information is also available at: http://www.dir.ca.gov/dosh/DoshReg/5193Meetings.htm

If you have any questions or comments, please contact Amalia Neidhardt, Senior Safety Engineer at aneidhardt@dir.ca.gov .
Thank you for your interest in this project.

Amalia Neidhardt MPH, CIH, CSP

Proposed Section-5193.1-STI

US District Court Judge Pregerson Rules on Measure B

Judge Pregerson rules some parts of Measure B are constitutional while others are unconstitutional.

This is the initial ruling we have all been waiting for from the Court. Judge Pregerson has decided that condoms in porn do not violate the First Amendment, however, he did go on to find that much of Measure B does violate the Constitution.

Note: This ruling by the court was on Vivid et al. request for an Order enjoining Measure B from being enforced as well as AIDS Healthcare Foundation’s motion that Vivid’s case be dismissed in its entirety. The case will continue since neither side won a total victory. Vivid was able to convince the Judge to block certain aspects of Measure B while not being able to convince the Judge to enjoin all of Measure B. And AHF could not convince the Judge to dismiss all of Vivid’s claims.

Interestingly, the Judge has allowed the requirement that a producer secure a permit prior to shooting an adult scene or movie. However, he has basically limited the County’s ability to suspend or revoke the permit. The Judge has determined that just allowing the County to have the ability to decide what is or is not a violation would be considered “prior restraint” and is unconstitutional. Judge Pregerson went on to note that the County would have “unbridled discretion” if they were allowed to revoke permits and suspend filming if there were any type of potential “harm” including even a cameraman having a cold.

Furthermore, the County of Los Angeles will not be able to conduct warrantless searches of producers. And once a warrant is obtained, if a violation is found, a fine or criminal penalties could not be imposed without a judicial hearing.

The Court also went on to find that Measure B does not define adult films sufficiently since “adult films” may be a movie that contains activities such as kissing which could possibly transmit disease since saliva contains infectious materials.

Also, the County cannot impose fees under Measure B for permits.

Here are the Judge Pregerson’s own summary of his decision;

“Here, adult film actors must still use condoms. A permit is still required. Although the permit may not be modified, suspended, or revoked, fines and criminal charges may still be brought against offenders, as described in footnote 23. While administrative searches cannot occur, nothing prevents law enforcement from obtaining a warrant to enforce Measure B. Regarding fees, since there is no evidence that Measure B’s fees are revenue neutral, there is no reason to believe the Department’s Measure B duties cannot be performed without fees–or performed at least until the fees’ defect is cured, either by enacting a new, constitutional ordinance or providing this Court with evidence of revenue neutrality.”

In short, we still have to contend with Measure B, but the fees are gone, the searches are gone, the permit stays but it cannot be suspended or revoked without a proper court proceeding and thus producers cannot be forced to “shut down” and prevented from shooting other movies.

So AHF wins some and Vivid wins some… All in all – Measure B will now be much harder to enforce than it already is. But condoms remain a required aspect of shooting porn in Los Angeles County and California. The real question is does the County want to enforce a condom law that will now require a warrant for a search in order just to find violations.

In my opinion, I doubt the County will have the man power, the resources or the funding to start searching sets especially since they will not be able to charge fees for their permits.

Click here for a copy of Judge Pregerson’s Ruling;

031117360803

Ballot Measure B – Moving Forward

by Attorneys Greg Piccionelli and Michael W. Fattorosi

Since the Election Day many industry members have been speculating as to what happens now that Ballot Measure B has passed and will eventually become law in some or possibly all of the 85 independent towns and cities in Los Angeles County. We have noticed a somewhat panicked approach to how the industry can survive and continue to thrive in Southern California and especially Los Angeles, the home of adult motion picture entertainment since the 1950s. As an industry, we have a 50 year relationship with California and Los Angeles that cannot change quickly, and, in our opinion, when viewed from a legal perspective, should not change quickly.  Judicial opinions in California provide far more legal protection than any other state that currently also has a developing production industry.

Some have speculated that the industry should pack up our tents and relocate to Las Vegas or perhaps some other part of Nevada. Many believe that since the industry has a relationship with Las Vegas either by virtue of the AVN Awards or because there are other studios now producing there it will be a friendly home.

While Las Vegas may eventually become the home of the industry, now is not the time. As attorneys, we cannot ethically advise our industry clients to move to Las Vegas to produce sexually explicit content in a state where there are, at least at the present time, no legal protection to shield producers and performers from potential prosecution under its pandering, prostitution, and other laws. California and New Hampshire are the only two states in which there are controlling judicial precedents providing such protection.  Therefore, this should be made very clear: commercial production of  sexually explicit content outside one of the those two states places any production company and performer doing so in jeopardy of serious criminal prosecution. Therefore, there is not, in our opinion, currently sufficient  reason for a company to take such a risk while over 99% of the state of California currently remains legal for production.

If the Nevada State Legislature were to amend their current laws, or if the courts of Nevada were bound to a judicial decision holding reflect that hardcore porn production would be a protected under the First Amendment or the free speech provisions of its state constitution, the industry would have the kind of legal protection required to legally shoot commercial adult content. Unfortunately, that is yet to happen. When and if it does, perhaps then would be the time to seriously consider a move to friendlier pastures. However, as those legal protections simply do not currently exist, now is not the time.

Ballot Measure B is not a state-wide initiative. It only applies to Los Angeles County. Therefore, at this point, a costly and legally risky move out of California entirely is not required to avoid its applicability. However, a move out of Los Angeles County, like the one that has been discussed by Steven Hirsch of Vivid Entertainment in Variety Magazine, could certainly be a possibility.  Ventura County, as well Riverside County and San Bernardino County are all three relatively close counties in which Ballot Measure B will have no effect (Note: Simi Valley in Ventura County did in fact pass a measure similar to B therefore it is recommended that no one produce in Simi Valley as well).

Three cities even closer to the San Fernando Valley then the counties discussed are Pasadena, Vernon and Long Beach.  Under current law in those municipalities, Ballot Measure B cannot be adopted by any of those three cities. Pasadena, Vernon and Long Beach all have their own health departments and do not contract with the Los Angeles County Department of Health. Therefore, an inspector from the Los Angeles County Department of Health does not have jurisdiction to enter those cities to check production company headquarters for permits and condoms. Therefore, under current law in those cities, it simply cannot lawfully happen.

Ballot Measure B is a two-part law. The first, more stringent part of the law are the sections requiring all producers in Los Angeles County to secure health permits and use barrier protection. This is really the crux of the law. And that is what makes B so expensive for production companies. We do not know how much these health permits will cost but estimates of $2,000 to $30,000 a year have be discussed.

The second part of the law are the sections discussing film permits. As you are probably aware, any commercial filming in Los Angeles requires a film permit secured from FilmLA. Ballot Measure B does not change that. As most of you are aware if you film in Los Angeles without a permit and are apprehended doing so by law enforcement you can be charged with a misdemeanor crime.  You may also have your equipment confiscated and held until your first court appearance.

Ballot Measure B does not change any part of the law in regards to shooting without a permit. In actuality, Ballot Measure B proscribes no differences in criminal charges for shooting without a permit and shooting without a permit and without barrier protection. There is no increase in penalty for getting caught shooting without barrier protection – unless the production company is located within Los Angeles County and then there would be an increase in penalties for having a health permit but not using barrier protection.

It should be noted that according to an legal opinion provided to the Los Angeles County Board of Supervisors by its counsel, Ballot Measure B will not apply to out of state production companies that are also headquartered outside of Los Angeles County. If your production company was incorporated and is located in a city outside Los Angeles County, for example, Las Vegas, Phoenix, North Carolina or even Canada, the health permit aspects to Ballot Measure B cannot be enforced on your production company. Again, the Los Angeles County Department of Health inspector has no authority to visit you company headquarters in one of those states to perform an inspection.

In our opinion, Ballot Measure B can easily be worked around while staying fully compliant with the law (when it does go into effect). It does not require the exodus of the industry from Southern California or even Los Angeles County. We should remain united towards the end goal of defeating Measure B via a legal challenge that will be brought by the Free Speech Coalition. Until then, the sky isn’t falling and we should all remain calm.

The opinions stated in this story should not be viewed as legal advice.  Therefore, if you have legal counsel, you should call him or her soon to discuss how Measure B will impact your business. This applies equally to established production companies, talent as well as webcam companies. Measure B does not distinguish between different types of production.

If you do not have counsel, either of us would be more than happy to set up a consultation to develop a specific plan for your business. Michael can be reached at his office at (818) 881-8500 or via email at michael(at)fattlegal.com. Greg can be reached at (818) 201-3955 or via email at greg(at)piccionellisarno.com.

Ballot Measure B – So What Happens Now ? Part 1

As most of the readers of this site already know Ballot Measure B was passed by the voters of Los Angeles County yesterday by a margin of 56% to 44% with approximately 2,000,000 votes cast. The question now becomes – what happens now ? Are condoms now required on all shoots under Ballot Measure B ? (Note: Remember Cal-OSHA regulations now require barrier protection for all shoots where there is an employer-employee relationship) When does the law go into effect ? What if I don’t use condoms what will happen ? What if I move my production company and/or shoots out of Los Angeles County ? Will the FSC or a studio file a legal challenge to Ballot Measure B ?

All of these questions are quite complex and will be answered in this and subsequent articles as more information and analysis becomes available. There is still a lot of uncertainty as to Ballot Measure B. What is certain is that this fight has only begun. I do not anticipate that the industry will just accept the Ballot Measure B and move on. The opposition to B will now move towards a city by city fight and/or a legal challenge.

Where and When Does B Take Effect ?

As I wrote on September 25, 2012 Ballot Measure B will ONLY apply to the unincorporated areas of Los Angeles County when it is certified by the Los Angeles County Board of Supervisors ( http://adultbizlaw.com/what-youre-not-being-told-about-the-condoms-in-porn-law/ ). In order for this law to take effect in cities such as Los Angeles, Glendale, Malibu or any of the 85 independent towns and cities in Los Angeles County – each one of those cities will have to independently debate, vote on and themselves pass/adopt Ballot Measure B as law in their town. How long will that take is anyone’s guess at this point. And it is not certain that all 85 independent towns and cities will even adopt Ballot Measure B. I can envision a situation in which some of the smaller towns that do not have any contact with the adult entertainment industry will simply ignore this law entirely.

Here is a list of the cities that can adopt the law now that Ballot Measure B has passed;

Agoura Hills, Alhambra, Arcadia, Artesia, Avalon, Azusa, Baldwin Park, Bell, Bell Gardens, Bellflower, Beverly Hills, Bradbury, Burbank, Calabasas, Carson, Cerritos, Claremont, Commerce, Compton, Covina, Cudahy, Culver City, Diamond Bar, Downey, Duarte, El Monte, El Segundo, Gardena, Glendale, Glendora, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Huntington Park, Industry, Inglewood, Irwindale, La Cañada Flintridge, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lawndale, Lomita, Los Angeles, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Fe Springs, Santa Monica, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Temple City, Torrance, Walnut, West Covina, West Hollywood, Westlake Village and Whittier

And there are three cities that cannot adopt Ballot Measure B. Long Beach, Vernon and Pasadena – all three do NOT contract with the Los Angeles County Department of Health. Ballot Measure B requires that the Los Angeles County Department of Health enforce the law and therefore if Long Beach, Vernon and Pasadena have their own health departments, Los Angeles County Department of Health has NO jurisdiction to enforce condoms on any production company in those cities.

What About Production Companies Located Outside Los Angeles County ?

Having a production company located in Pasadena, Long Beach or Vernon will have the same affect as having a production company located in Las Vegas, North Carolina or even Canada. The Department of Health Inspector cannot travel out of state to inspect health permits nor can they go into Pasadena, Vernon or Long Beach to inspect health permits. They simply do not have jurisdiction to do so.

If you do not have a production company located in Pasadena, Long Beach, Vernon, Canada, North Carolina or Las Vegas it is still going to be a while before this law goes into effect in cities within Los Angeles such as Chatsworth, Woodland Hills and Northridge. The first step is that the election results have to be certified and once certified the Los Angeles City Council would have to vote on and adopt Ballot Measure B. I anticipate this could happen as soon as sometime in January 2013 or it may take months after that. I do believe that the City of Los Angeles Council will adopt Ballot Measure B to replace the “Safer Sex in Film Ordinance” that the City Council adopted last January.

After Ballot Measure B is adopted by the city of Los Angeles when will they begin enforcement is also anyone’s guess. It is difficult to estimate how long it would take rules of enforcement to be adopted by the Los Angeles Department of Health. It could be several months or even up to a year. The City of Los Angeles adopted their own “condoms in porn” law last January and have yet to finish trying to figure out how to actually enforce their law. The same may prove to be true of Ballot Measure B.

What About a Constitutional Challenge to Ballot Measure B ?

We also cannot fully anticipate how any legal challenge on constitutional grounds may play out. It is possible that any person or entity affected by Ballot Measure B would ask the court for an injunction on the enforcement of the law. Whether such an injunction would be granted would also be speculation. It would be speculation to state whether any such challenge would be successful.

I have had several discussions with attorneys who have handled First Amendment challenges before and most are split on the issue of how successful a challenge would prove to be. The success will ultimately turn on the issue of whether a court uses “intermediate scrutiny” or “strict scrutiny” to test the validity of the language of the law. If the court finds that the “intermediate scrutiny” test should be used then it is more than likely that Ballot Measure B will survive a challenge. However, if “strict scrutiny” is the standard used then it is likely that B will fail a constitutional challenge. There was a recent decision in the Ninth Circuit Court of Appeals (Los Angeles County is in the Ninth Circuit’s jurisdiction) that might be helpful in challenging the constitutionality of Ballot Measure B.

The Ninth Circuit ruled that the First Amendment protects yellow pages phone books, rejecting a Seattle law that sought to limit distribution of the phone book. Under Seattle’s 2010 ordinance, the phone book publisher had to pay a fee and obtain a permit for each directory it distributed in the city, and create a list through which residents could decline to receive the yellow pages. During hearings on the new law, numerous citizens testified that distribution of the phonebook violated their privacy and created waste.

Read More at Courthouse News – http://www.courthousenews.com/2012/10/15/51283.htm

This is an interesting case in regards to Ballot Measure B. The Ninth Circuit Court of Appeals held that phone books are entitled to full protection under the First Amendment and therefore the “strict scrutiny” test had to be applied to the permit law. The City of Seattle argued that only the “intermediate scrutiny” test had to be applied and thus the permits helped served to reduce waste, protect the privacy of its citizens and helped the city recover the costs of disposal of the unwanted phone books. As in Ballot Measure B, the City of Seattle wanted the phone book publisher to pay a permit fee to enforce the law.

It is simply too early to state with any specificity as to what is actually going to transpire in the industry because of Ballot Measure B. In the words of William Shakespeare Ballot Measure B might prove to be “much ado about nothing.” Ballot Measure B is a badly written ordinance and is very ambiguous as to its definitions of certain types of productions. It actually raises more questions then it answers and we may not have answers until people are actually prosecuted under the law.

We do not know if it covers content trades between performers. We do not know how Ballot Measure B will apply to “celebrity sex tapes” shot in Los Angeles County. Will the “reality star of the month” be required to force her male co-star to a wear condom to have any chance of selling her sex tape to Vivid for distribution ? If a production company is located in Los Angeles County will it still be required to have a health permit even though they shoot all their content overseas ?

The actual application of Ballot Measure B – if it is ever enforced – will be a legal nightmare not only for the companies affected but also those lawyers defending their clients and a judge that has to figure out what the scope and breadth of the law is. This issue is far from over and B is far from being enforced. It is time to take a deep breadth and get back to work. There is a lot to do in order to fully understand what B really means.

Keep checking back here for more updates as to Ballot Measure B as more information becomes available.

Lawsuit Roundup: NY Models File $20 Mil Class Action Lawsuit Against Agents

Models Sue Top Agencies for $20M

MANHATTAN (CN) – Professional models sued top modeling and ad agencies and cosmetics firms in a $20 million class action, claiming the defendants continue to profit from models’ work after their contracts expire.

Raske says the agencies typically demand 20 percent booking fees. “These agreements contain industry wide terms and are commonly for a period of three years,” the complaint states.

She claims that the dozens of defendant agencies “commonly, without the knowledge of the models and or without legal authority or permission, either forge the models’ signatures and/or execute documents as if the modeling agencies had contacted the models and had the legal authority to execute the documents.”

She claims the agencies do not disclose “statements/breakdowns to the models.”

“Since the models are unaware of the extended/expanded usages for which the modeling agencies have negotiated and received payment on their behalf, unless the models somehow fortuitously discover the use of their image on a product or in an advertisement, the models never demand or receive payment and at the very least, the modeling agencies are unjustly enriched by the models’ funds,” the complaint states.

Raske claims that when other models voiced similar claims in Fears v. Wilhelmina Model Agency, the agencies “attempted to threaten and intimidate” them into dropping their claims. “The models were told by the modeling agencies that any models that participated in the class action would be ‘blackballed’ and would ‘never again model in New York,'” according to the complaint.

Read more at Courthouse News -> http://www.entlawdigest.com/2012/10/18/1891.htm

Strip Club Fees Aren’t Tax Exempt, Court Says

(CN) – Strip club dances are not “cultural and artistic” enough to qualify for a state tax break, New York’s high court ruled.
The New York Court of Appeals ruled 4-3 that the admission fees and private dance fees of Nite Moves, an adult “juice bar” in Latham, are not tax exempt. State law allows New York to tax admission fees to “any place of amusement,” including sporting events, zoos and ice shows, but grants an exception for “dramatic or musical arts performances.”

Nite Moves owner New Loudon Corp. argued that its exotic stage and private dances qualify as musical arts performances under this exemption. But the appellate majority disagreed, upholding the Tax Appeals Tribunal’s ruling against the strip club.

Read more at Courthouse News -> http://www.entlawdigest.com/2012/10/24/1907.htm

Strippers Win $13 Million Class Settlement

LOS ANGELES (CN) – A federal judge approved a $12.9 million class settlement for exotic dancers who claimed strip clubs denied them benefits by calling them independent contractors.

More than a dozen dancers settled the 3-year-old class action with several operators of adult entertainment clubs. Among other abuses, the dancers claimed that clubs helped themselves to more than half their tips, penalized them for not selling enough drinks to customers, and made them pay stage fees. Defendants included the Spearmint Rhino.

Under the terms of the settlement, the clubs will treat dancers as either employees, partners or shareholders in their businesses, and in California, dancers will no longer have to cough up pay-to-perform fees.

Read more at Courthouse News -> http://www.entlawdigest.com/2012/10/10/1868.htm

 

Porn 101: Fetish Content – What’s Legal ?

I am often asked by producers what is legal and not legal to shoot in regards to fetish content. My usual answer is “it depends.” It depends on where you are shooting as well as what you are shooting and where the content will be distributed. For the most part, before Kink.com, fetish content did not involved sex or at least penetration. One of the last remaining “taboos” in adult entertainment was tying up someone and penetrating one or all of their orifices. Many producers to this day believe that may still be viewed as forced raped by law enforcement and worry about potential prosecution as well as obscenity charges from producing such content. While others see what Kink is doing in their productions and think that it is perfectly legal to follow to lead. That could not be farther from the truth.

Whenever I advise a particular producer or model that what they want to produce is potentially illegal or borderline illegal to produce the most often heard response I receive is “But so-and-so is doing it that way.” What most people do not understand is the vast financial differences between being Kink.com and XYZ Productions. Kink.com has the funds to pay for and defend any type of legal situation (Note: I do not represent Kink). XYZ Productions probably does not. Therefore, if Kink.com was ever prosecuted criminally or faced a lawsuit because of its content, they would have the ability to handle such a situation, whereas the little producer would be ruined an unable to defend.

Removing penetration from the equation though and fetish content actually becomes one of the best niche markets with the highest potential return on an investment. Not only is it less expensive to produce most fetish content then it is to produce traditional boy-girl, girl-girl or boy-boy content, it is also legal to produce in all 50 states, depending on the exact nature of the content.

For example, if you produce fetish content such as cake sitting, balloon popping, smoking, toe sucking, tickling, wrestling, POV humiliation, shoe worship and foot worship, as a producer you will have less to worry about in regards to potential criminal prosecution. Some fetish content requires absolutely no nudity and therefore you may not even have to maintain 2257 documentation. The vast majority of fetish content does not involve penetrative sex and therefore usually cannot be the basis of a criminal complaint for pandering or prostitution (be aware that shooting without a permit may still be a crime please check your local laws). You can literally produce certain types of fetish content anywhere. And it is often much less expensive to pay a model to pop balloons naked than it is to pay her to perform fellatio on a male performer. With the onslaught of tubesites, any type of “sex” content is easy to find for free on the Internet whereas fetish content is more specialized, harder to find for free and usually more often purchased then sex content. One of the easiest distribution methods for fetish content is on websites such as Clips4Sale.com ( http://www.Clips4Sale.com ). Not only is Clips4Sale an excellent distribution method but it can also be used as a resource tool to determine what is hot in the fetish market. You have to look no further to see what is selling on Clips4Sale to understand what may sell for you.

If you are going to produce fetish content without sex (oral, anal, vaginal or even handjobs) the possibilities are limitless as to the different niches and sub-niches you can produce. The list of all potential fetish content is too exhaustive to state in this article and I recommend that anyone looking to produce such content to choose several niches to begin with and experiment. However, once you find a particular niche or sub-niche your clients and customers may remain loyal for years to come.

Be aware that producing fetish content still has it owns potential issues. The following is a list of activities that you will want to stay away from incorporating into any of your productions as these may be considered criminal and/or obscene in some localities;

•    Underage Material Real or Simulated (ex., sex with dolls)
•    Snuff
•    Necrophilia
•    Blood
•    Asphyxiation
•    Animal Sex
•    Forced Sex
•    Non-consensual Sex
•    Hardcore Bondage with Sex
•    Vomit
•    Feces
•    Pissing/Peeing
•    Fisting
•    Chloroform
•    Weapons
•    Drugs
•    Intoxication
•    Crushing

While this list is not exhaustive as to what may or may be deemed obscene in certain localities it is a good starting point as to what may be problematic. Of course, if you are determined to produce fetish content it is strongly advised that you consult with an adult entertainment attorney BEFORE you begin any pre-production so that you may fully understand the legal ramifications as to the exact nature of the content you would like to produce.

 

 

Porn 101: 18 U.S.C. 2257 The Basics

Federal Record Keeping Requirements and 18 U.S.C. Section 2257

How it began…

In the fall of 1984, Penthouse magazine featured Traci Lords in a pictorial and made her their Pet of the Month. She quickly became an overnight sensation in the adult entertainment business and rapidly went on to star in hundreds of adult movies and posed for numerous other magazines.

By the fall of 1987, it became apparent that Ms. Lords might have actually been under the legal age of 18 when most of her print and video work was performed, thus making her a child and a minor when she appeared in those videos and magazines. This sent shockwaves through the adult entertainment business and resulted in numerous distributors being indicted by the federal government for the sale of child pornography. Many in the business scrambled to recall, retrieve and destroy Ms. Lordís pictures and videos to avoid prosecution and conviction.

Congress also immediately reacted to this and passed 18 U.S.C. section 2257 which was designed to prevent other minor age persons from appearing in sexually-explicit content. Section 2257, as it is referred to, places several requirements on those that act in and produce sex-explicit content. It is, without question, an all important piece of legislation that everyone in the adult entertainment business should be familiar with.

What 2257 requires?

Any producer, whether primary or secondary, involved in the creation or commercial distribution of images that contain visual depictions of actual sexually explicit conductî must maintain certain records of those that perform in that visual depiction.

What is actual sexually explicit conduct?

(A) Sexual intercourse of any kind, including oral and even between same sex partners;

(B) Bestiality;

(C) Masturbation;

(D) Sadistic and/or masochistic behavior;

(E) Sexually explicit content meant to arouse.

Who is a producer?

(A) Anyone that produces, manufactures, publishes any book, magazine, periodical, film, video, or other similar matter and yes, websites are included in this list.

When did it take effect?

(A) It is in effect and has been for any new content made after July 3, 1995.

What do I have to do as a producer?

If you are a producer of content you must create and maintain the following records;

(A) The legal name of each performer obtained by the examination of an identification document;

(B) The date of birth of each performer obtained by the examination of an identification document;

(C) Any name, other than the performer’s legal name ever used by the performer, including the performer’s maiden name, alias, nickname, stage name or professional name;

(D) For any content produced after May 26, 1992, such names shall be indexed by the title or identifying number of the book, magazine, film, videotape or other matter and again websites are included in this;

(E) Keep copies of all the identification documents that have been examined separated from all other records.

What constitutes identification?

(A) A state or federally issued ID that bears the photograph, name and birthday of the performer.

What do I have to do as a performer?

(A) Have 2 forms of identification issued by a state or federal government showing your legal name, birth date and photograph;

(B) Have a list of all your stage names, professional names, nicknames or alias that you have used in the adult entertainment business over your entire career;

While it is not required I would also provide any producer/director the following as well;

(C) A list of all the titles of the video/DVD, magazine and website performances you have been in.

Where and for how long do I have to keep the records?

(A) At the producer’s place of business;

(B) The place of business must be a street address not a PO Box;

(C) The records shall be maintained for as long as the producer remains in business;

(D) If the producer ceases to remain in business, he or she shall still continue to maintain these records for a period of 5 years.

Labeling requirements under 2257…

(A) A statement must be affixed to every copy of the book, magazine, periodical, film/video, website or other matter that shows the title or identifying number of that publication and;

(B) The date of the production, manufacture, publication, reproduction or reissuance of the matter and;

(C) A street address at which the records can be made available;

(D) The person responsible for maintaining the records;

(E) The name of the corporation/legal entity as well.

What can happen if I violate 2257?

(A) Violation of 2257 is a felony and those found guilty of such shall be imprisoned for not more than 5 years and/or pay a fine;

(B) A second offense is punishable by imprisonment of not more than 10 years, but not less than 2 years and/or a fine;

Obviously, 2257 is a powerful statute and one that cannot be ignored. Failure to maintain these types of safeguards could also lead to the possible performance of a minor in an adult production which could have even greater potential for harm. The law is in a constant state of change in regards to 2257 and it is recommended that in order to fully understand those changes you consult and attorney immediately.

There are also many issues involved with 2257 that these pages have not touched on and remain somewhat unclear even to legal experts in the adult entertainment field. This summary is not meant to be exhaustive of what a producer’s responsibilities are when it comes to complying with 18 U.S.C. 2257. 18 U.S.C. 2257 is an extremely complex law and I strongly suggest that you contact competent legal counsel for additional information and advice.

Porn 101: Website Privacy Policies and Why You Need One

As of July 1, 2004 California Law requires that an operator of a commercial Web site or online service that collects personally identifiable information through the Internet about individual consumers residing in California… shall post its privacy policy conspicuously on its website…Cal. Bus. & Prof. Code 22575-22579.

Besides being legally mandated in California, accurate privacy policies increase consumer confidence and awareness. Some affiliate programs have specific requirements for their affiliate privacy policies. You should be aware of the agreements that you have with any third party and how these agreements impact your privacy policies.

Your privacy policy should be easy to read and accurately reflect the way your business collects and shares information.

Below you will find some questions to consider in developing a privacy policy and clauses that may be found in a privacy policy. There is no one size fits all privacy policy. This document will vary from business to business. A privacy policy is a legal agreement between you and the people who do business with you. You should make sure that the statements made in your privacy policy are a true reflection of the way that you do business.

Your privacy policy should: (1) Be posted in a conspicuous place; (2) Identify the categories of information your company collects from consumers; (3) Describe the categories of third parties who you share your customer information with; (4) If your company allows customers to store and update their personal information, you must post the process in which they do so; (5) Describe how you will notify consumers of any changes in your privacy policy and (6) State an effective date.

Below are some sample paragraphs and clauses that may work for your privacy policy. This is a legal document that should be drafted by legal counsel.

Example of a Preamble:

This Privacy Policy sets forth the policies and practices with respect to information or data that is received or gathered regarding Members (note: do you have members?), visitors and Users of ____________ (hereafter the “Site”) or the services provided by the Site.

CAREFULLY READ THIS PRIVACY POLICY BECAUSE BY YOUR USE OF THIS SITE AND ITS SERVICES YOU WILL BE EXPRESSLY SIGNIFYING THAT YOU AGREE TO THIS POLICY AND THAT YOU ASSENT TO THE TERMS OF THIS AGREEMENT, INCLUDING THE USE OF ANY PERSONAL INFORMATION THAT YOU SUPPLY OR THAT IS COLLECTED ABOUT YOU AS DETAILED IN THIS PRIVACY POLICY.

IF YOU DO NOT EXPRESSLY AGREE WITH ALL OF THE TERMS OF THIS PRIVACY POLICY YOU SHOULD NOT USE THIS SITE OR ITS SERVICES.

Example of the Body of a Privacy Policy (note: these paragraphs or wording contained in them may not be appropriate for your specific business, this is just an example).

1. HOW WE COLLECT MEMBER, VISITOR OR USER INFORMATION

If you visit this Site, we may collect and store in our databases, one or more of the following types of information (ìDataî): your Internet Protocol (IP) address; the name of the domain name from which you access the Internet; the IP address of the Website from which you linked to the Site or our network of sites; browser data; email address data; and the date and time you access our Site and its functions. (Note: this is a relatively thorough list for an average paysite program, but if you collect another kind of information just by someone viewing your site, then you would list that here.)

When a visitor, member, subscriber, or other Site user requests web pages from the Site’s server, clicks on banners or other links or otherwise uses or views the Siteís services, products or other functions, we or our agents may automatically collect some information (“Data”) about the visitor, member, subscriber or user. This information may include the IP address from which the
Site is being accessed, the pages or links that were requested, the special preferences or requests of the user and cookie information received from the computer of the visitor, member, subscriber or user.

Sometimes, we may ask you to provide personal information. Whether or not you provide this personal information is completely optional. This Optional Information may include your name, username, e-mail address, physical address (or part of it such as your zip code), telephone number, gender, marital status, occupation, education and any special interests or affiliations. Additional Optional Information such as a credit card number, expiration date, security code and billing address may be requested for participation in special promotions or offers, or for billing and shipping information.

When a subscriber, member or user of this Site sends any personal communication or correspondence, by any means, to the Site, the Company or any employees, agents or representatives of Company or Site, we may collect and use any and all such information and all other Data regarding that communication.

2. COOKIES

Internet cookies are used for authenticating, tracking and maintaining specific information about users, such as site preferences or shopping cart contents. Most Internet browsers allow the option to enable or disable cookies. You may disable cookies, but this may make portions of this Site unusable. Cookies are simple pieces of data unable to perform any operation by themselves. They are neither spyware nor viruses, despite the detection of cookies from certain sites by many anti-spyware products.

This Site uses cookies to make the browsing experience of our members, subscribers and users more efficient and convenient. Our system will use cookies to remember your web preferences, and to assist us in tracking and targeting the interests, preferences and desires of our Site users to present the most appropriate messages, offers and other communications to our users, and to generally enhance their experience at our Site.

Any and all information about Site visitors, members, subscribers or users collected by the Company, the Site or any agents or affiliates of Company or Site, through the use of cookies or other similar means may be included in our database and used in a manner consistent with this Privacy Policy.

We want to inform you that third parties such as affiliates and advertisers use cookies on or in association with our Site. We often have no access or control over these cookies. We may also allow third party service providers to deliver special offers or services to Site users and to control the use of their cookies on your computer. We urge you to consult the privacy policies of any third party that you encounter on this Site.

(Note: web beacon technology, otherwise known as Clear GIFs, function similar to cookies, but are different. If you use this technology then you need an additional paragraph about Clear GIFs and)

3. HOW WE USE AND SHARE DATA AND PERSONAL INFORMATION

We use the information described in Sections One (1) and Two (2) for a variety of functions. In addition to using cookies, Data and Optional Information in the ways described above, we use this information to measure the number of visitors to the Site, to measure how traffic is generated and where it comes from; to track the success of our affiliate program and its individual affiliates (with whom this information may be shared); to track the receipt and success of customer newsletters, promotional programs, special offers and advertisements; and to generate and provide our marketing partners, affiliates, licensees, purchasers and successors in interest with accurate statistics on the performance of the Site. We also use cookies, Data and Optional Information to track customer preferences and to adapt our products and services to those preferences.

4. CHANGING YOUR PERSONAL INFORMATION

5. UPDATES AND REVISIONS TO THIS POLICY

This Site reserves the right, in its sole and absolute discretion, to revise, amend, modify or revoke this Privacy Policy at any time and in any manner. Changes to this Privacy Policy will be effective upon the posting of any revision on the Site.

6. EFFECTIVE DATE OF THIS POLICY

This Privacy Policy will become effective on _____________.

Porn 101: Should You Incorporate ?

Now that you are getting into the adult entertainment industry you have to start considering the business aspect of what you are going to be doing whether that is being a content producer, director, performer, dancer or even a webcam performer. Instead of being paid personally you have the ability to form a company and have anyone paying you to pay that company instead. There are numerous advantages to having a company. Two of the best are to help lower your taxes and to increase your privacy.

There are several ways you can structure your business, i.e., Sole Proprietorship, Corporation, Partnership, Limited Liability Corporation, but which is the right choice for you. There are numerous reasons for choosing each entity, and there are associated tax consequences and benefits for each and therefore I recommend that you also speak to a CPA before deciding which to use.

Sole Proprietorship

By far this is the easiest and simplest structure. It only consists of someone setting up and operating a commercial business. This is also one of the least expensive types of structures to set-up. However, be aware, that even operating your business as a sole proprietorship might still require you to pay certain fees to register the business, secure a fictitious business name certificate and obtain other licenses that might be necessary from your county or city.

The only real advantage to a sole proprietorship is that it is inexpensive and that you are entirely in charge of your business affairs. However, on the other hand, you will also be personally responsible for all the business’s debts and liabilities. Which basically means that if something goes wrong, you as an individual will have to pay for it. Just closing the business will not relieve you from any liability.

Corporation

Corporations are the usual choice for most business in the United States, since this type of structure provides tax advantages as well as protection of your personal assets from the debts and liabilities of the company. Usually, corporations can be organized in two forms, C-corporation and S-corporation. However, in order to protect your assets, the corporation must be properly formed and maintained, otherwise it might be considered a shell and you will not be afforded the protections that you would be if the business was properly organized.

In order to properly form a corporation, California and most states require the drafting of Articles of Incorporation and payment of fees to Secretary of State in order to be recognized as an official corporation. You will also have to pay certain fees to the tax board of your state as well to maintain your corporate status. A corporation may be owned and operated by a single person, however, most involve several shareholders. Further those that own and operate a corporation have titles such as President, Vice President, Chief Operating Officer, Secretary etc.

There are numerous websites that can form and register your corporation for a fee, usually costing around $750.00. I strongly recommend that if you are going into the adult business, you seek the legal advice of competent legal counsel when you seek to incorporate. It can be quite beneficial to start a relationship with your “corporate counsel” early on. While the online services can do it cheaper and perhaps quicker, they are not usually operated by attorneys and can not give specific legal advice.

Partnership

This is also a viable option for your structure, however, it affords less protection that a corporation. However, before you can call yourself partners, you will need a Partnership Agreement. A Partnership Agreement really requires the advice and counsel of an attorney. There are however different types of partnerships and even different partners within the same partnership. There are limited liability partnerships which protects each partner from each other’s wrong-doing or negligence. There can be general partners and limited partners in a LLP.

You can have just a general partnership without the protection afforded by a LLP from your partners. Which means that each partner will be responsible for the debts and liabilities of each of the other partners with joint and severally liability. Which means that one partner might have to pay the debts of all of the other partners by himself/herself.

Your partnership might also team up with another corporation or partnership to conduct a joint venture.

Limited Liability Corporation

A LLC is a structure that has the benefits of a partnership, in regards to flexibility and the protection of personal assets from the liabilities and debts of the corporation. However, not all states recognize limited liability corporations. For those states that do recognize this structure, sometimes the protection afforded them is not as complete as the protection afforded corporations. The formation and the operation of a limited liability corporation can be very complex and difficult to understand. Failure to properly organize and maintain the LLC can cause you to lose whatever protections you might believe you have with this type of structure.

If you are going to have several partners in the LLC you will need to have a properly drafted Operating Agreement in order so that all of the rights and responsibilities of all of the partners are clearly spelled out. The one issue that most partners in an LLC fail to do is to have an Operating Agreement. The operating agreement is significant since it will usually cover issues such as what will happen if one partner wants to sell his/her part of the business. Or even what happens if one of the partners passes away. These are all issues that you must plan for when drafting an Operating Agreement as well as a Partnership Agreement.

Whatever business structure you choose, do so based on the advice of a lawyer as well as a CPA. Owning your own company can provide tax benefits and write-offs that you might not otherwise receive filing your taxes as a single/married individual.