Expert: Dan Pepper - 8/27/2008

Question
Hi I'm 25 and have been making short films for a few years now. I was
thinking about tapping into the adult video films and had a few questions I
could not find on your site. From what I have found porn is illegal to film or
produce anywhere other than california. I was watching a girls gone wild
video and also a vertical smiles video (Based out of Houston Texas) and
noticed something... In both of these films they show girls fully nude.
However neither video shows any type of insertion of the body of any kind.
Does this make these videos not porn and legal to shoot and  sell? I know
girls gone wild travel all over and film anywhere there is good entertainment
for there videos. I also know the other company is based out of Houston so
they are producing and distributing so I'm sure they are filming here to. Why
is this legal and what is the dividing line between legal and illegal? Thanks for
your help and you have an awesome site.

Answer
Thanks for the compliment!

There are a few inaccuracies in your question.  It is not illegal to produce porn outside of CA, it is just not affirmatively legal as it is in CA.  There is a big difference there.

There is no legal definition of pornography.  In 1964, Justice Stewart of the U.S. Supreme Court famously said "he knows it when he sees it."  That about sums it up.

Any producer must comply with the states' pandering, solicitation of prostitution, and obscenity regulations.  There is no guarantee that the various production companies based outside of CA are immune from prosecution.

You might find helpful the definition of sexually explicit conduct from 18 USC 2256(2)(A) which deals with the federal record-keeping and labeling requirement for producers of such conduct:

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person.

Unfortunately, navigating the legal waters of the adult business is not easy or intuitive, which is why I always preach to anyone getting into the biz to get a qualified lawyer to advise them.  It's very easy to get it wrong, and to get yourself in deep trouble.