Expert: Dan Pepper - 3/10/2009

Question
My business partner and are hoping to start an adult video production company, and simply market the videos on a subscription based website. I've read some previous answers by you and other experts on this site, and it seems that you can only legally film adult videos in California. Is this true, and if so, if we film the videos in California and comply with all of their legal requirements, plus the federal laws regarding record keeping, can the company still be based in Oregon? If we were to run the site from a business that was registered in Oregon, at an Oregon address, would that be ok, as long as the films were made in CA?

Thanks for your help!

Answer
Madeline,

California is the only state where this is legal precedent establishing the legality for the production of sexually explicit conduct.

However, a little bit of background is necessary since the story doesn't end there.

In 1988, the California Supreme Court in a case named People v. Freeman. decided that pandering laws could not be used as a "tool to impose a system of governmental censorship of erotic materials."  Effectively, this means that the production of adult content in California is not pandering on the part of the producer, nor prostitution on the part of the performers.

With the explosion of adult content on the Internet since the 1990s, and the fact that very few pandering or prostitution charges were brought against adult performers or producers, it has generally been assumed that such content could be produced in the U.S. without risking these types of charges.

That being said, no other state in the U.S. has considered the decision in the Freeman case, which means we don't have a definite answer how other states will handle it.  It is safe to assume that the more conservative jurisdiction you produce your content, the higher your risk.  However, under certain limited circumstances, Nevada, Rhode Island, and New Hampshire have laws or recent court decisions that permit prostitution.

Additionally, any adult content that is considered "obscene" under the definition of the U.S. Supreme Court, is also prohibited and illegal.

By filming in California, you get the protection of the Freeman case, which is your optimal scenario.  If you are based in Oregon, there are some strategies you can employ regarding your state of incorporation that can benefit you.  Contact me for more information about that.

NOTE:  This is not legal advice, and you should have a qualified attorney give you an analysis based upon the entirety of your particular situation.