Adult Film/tube sites


Question
QUESTION: As the name implies i love blazing woman on video but my question is when uploading videos to these websites do i need to have usc 2257 in place ( ids filed a certain way etc.?) also ive seen a software for that something like 2257 sentry or do i need a lawyer to file my records for me?

ANSWER: Hi, Blaze -

It's not clear from your question what connection that you have with the videos that you are uploading.

If you've produced the videos, even for noncommercial purposes according to the latest pronouncements of the Justice Department, you must fairly elaborately comply with the many obligations imposed on producers by Section 2257 and its implementing regulations. You'll find everything you need to get started at http://www.xxxlaw.com/articles/primer5.html but because this is not legal advice, and you need advice tailored to your situation, you should consult with an attorney experienced in this area of law.

The subject of your question is "tube sites" and you talk about uploading. Some tube sites permit you to directly upload to a website. If that's what you are doing, you are a "secondary producer" under the law (along with everyone else who inserts sexually explicit images on a website or otherwise manages the sexually explicit content of a website). In that case, the law requires you to maintain and make available for inspection at set times prescribed in the regulation a copy of the depiction and other records that include the alias names and actual names of the performer, ID documents that meet the requirements of the regulations, the URLs where you've posted them, and other obligations, all elaborately explained on my site at the location given above.

Other tube sites send your upload into a buffer where they are reviewed before posting, and so you directly insert nothing into a website page. In that case, your only obligation is as follows, from Section 2257 (f), essentially an obligation to assure that what you are distributing/sending/uploading bears a lawful Section 2257 Compliance Statement:

It is  unlawful . . .

(4) for any person knowingly to sell or otherwise transfer, or offer for sale or transfer, any book, magazine, periodical, film, video, or other matter, produce in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce or which is intended for shipment in interstate or foreign commerce, which

(A) contains one or more visual depictions made after the effective date of this subsection of actual sexually explicit conduct; and

(B) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce;

which does not have affixed thereto, in a manner prescribed as set forth in subsection (e)(1), a statement describing where the records required by this section may be located, but such person shall have no duty to determined the accuracy of the contents of the statement or the records required to be kept . . .

All the best,

JD

  



---------- FOLLOW-UP ----------

QUESTION: More specifically if i am performing in the scene lets say and then uploading to lets say xvideos or clips4 sale?  Model release forms and a custodian for 2257 would suffice? Can u elaborate a bit on that? Also is there software in lieu of or is a lawyer who offers 2257 recordkeeping services the way to go?

Answer
Hi, Blaze -

As I mentioned above -

"If you've produced the videos, even for noncommercial purposes according to the latest pronouncements of the Justice Department, you must fairly elaborately comply with the many obligations imposed on producers by Section 2257 and its implementing regulations. You'll find everything you need to get started at http://www.xxxlaw.com/articles/primer5.html but because this is not legal advice, and you need advice tailored to your situation, you should consult with an attorney experienced in this area of law."

It sounds as though you have produced the videos though you only mention performing in them.

Model release forms have nothing to do with Section 2257 compliance, but a great deal to do with laws in about fourteen states that require written releases for commercial use of the appearance of performers.


Regarding where you will maintain the records required by law, it must be either a business address of yours or that of a non employee custodian. It cannot be a post office box or other virtual address, and that physical address must appear in your compliance statement. If you do so at your own location, it will tie you down at least 20 hours per week for seven years and your address will appear in public wherever the video is seen. A nonemployee custodian is your other option. Software in itself is simply a tool for management of records and does not directly affect your duty as a producer to make those records available for inspection at the times set out in the regulation at an address identified in the compliance statement, your own business address or that of your nonemployee custodian. Only you (and perhaps an attorney advising you) can decide your smartest option. I don't like the idea of nonemployee custodians because if they fail, it's your gonads on the chopping block. None of them will ever go to prison in your place, you can't delegate a duty imposed on producers by statute, and the agreements they employ sharply limit their liability to you for errors or breaches on their part, usually to what you pay them in one month. Weight that against your lost freedom for five years and coming out as a convicted felon on a child-related felony. Too much risk for my taste, and so I think of nonemployee custodians as an absolute last ditch tool.

Your duties as a producer are complex, weighty, and serious. You should read the link that I provided you, a near book-length discussion of those duties with links to all original sources in the law. I can't imagine elaborating on that here!

Finally, I think it's pretty dumb to do anything as risky as commercial porn without the guidance of a lawyer. That link given above will steer you to contact information for this attorney. In most parts of the country, it's hard to find an attorney with substantial experience with the creation and distribution of adult material, but there are a handful of other fine attorneys experienced in this field who can also help you.

What troubles me most about all of this is that the way you are framing the questions tends to show that you don't have any real understanding of how the laws in this area work on people doing different things. And that smells like a disaster waiting to happen. Though none of this is intended to be legal advice, it does look to me like you are some considerable distance away from the knowledge you need to have to do this safely, and questions on a forum such as this will never provide you with the grounding that you need. All best wishes in any event.  

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J. D. Obenberger

Expertise

Numerous trials, including jury trials, criminal and civil since 1979. Obscenity. Section 2257. Copyright. Trademark. Communications Decency Act Section 230. Right of Privacy/Right of Publicity. Defamation/Libel/Slander. Warning Pages. Adult Internet Sites. Strip Clubs/Gentlemen's clubs. Massage Parlors. Prostitution. I am the author and operator of http://www.xxxlaw.com, the most comprehensive online legal resource concerning the law of adult entertainment online.

Experience

I've been an attorney for 34 years, nearly 20 years as an attorney concentrating in adult entertainment law. Have spoken at 72 adult webmaster show legal seminars and forums in six nations, seven American states, and three provinces of Canada, have appeared on the O'Reilly factor concerning obscenity, have been published by Thompson-Gale. Full qualifications at xxxlaw.com. My firm, J.D. Obenberger and Associates has provided representation in both criminal and civil matters for adult content producers, the operators of adult online businesses, as well as brick and mortar adult operations for nearly twenty years. We provide legal strategy, forms, protocols, and guidance for every kind of adult operation. Our clients find us available 24/7/365 in every emergency. My background includes numerous jury trials including the defense of major drug case in federal court on the Mexican border at Brownsville, forgery, sexual assaults, gun offenses, aggravated kidnapping, and such civil matters as pharmaceutical malpractice, premises and construction liability, and personal injury. I have prosecuted cases in the name of the United States while serving as a Captain in the United States Army Judge Advocate General's Corps. I have represented and advised clients in every part of the United States and from Hong Kong to Budapest. I am a regular columnist for XBIZ World and have published numerous articles in AVN and AVN Online and for YNOT.

Organizations
First Amendment Lawyers' Association, Free Speech Coalition, National Rifle Association, American Legion.

Publications
AVN, XBIZ, YNOT, Online Pornography, published by Thompson-Gale.

Education/Credentials
Doctor of Law, 1979, University of Wisconsin Law School. Dean's List. Graduate, National Institute of Trial Advocacy. Guest Lecturer, John Marshall Law School. I have presented Continuing Legal Education for practicing attorneys. Undergrad BA, the University of Wisconsin, double major in Political Science and History. Graduate, 90th Basic Judge Advocate General's Course on the campus of the University of Virginia.

Awards and Honors
Army Commendation Medal awarded as a Captain, US Army Judge Advocate General's Corps, as the most requested criminal defense lawyer in the US Army, Europe.

Past/Present Clients
No legal issue too great or too hot to handle, no client too small to deserve zealous and effective representation.

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