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Adult Film/Custodian Of Records


Question
Hi J.D. I am starting an adult film company and I know that the Custodian of Records is mandatory. But Im not sure exactly how to find a Custodian of Records? Can I be the company's Custodian of Records? or Would you recommend hiring one?

Thank You
Melvin

Answer
If there is any possibility that a producer can act as his own custodian, he or she should do so. The use of an outside custodian should be the last option considered after all other options have been considered and found to be unworkable.

Violation of 18 USC 2257 carries with it a maximum punishment of five years in prison, and like all other felonies, it carries a world of disabilities, some of which are life-long in their consequences.

That's weighty. No one else in the world will care about your compliance as much as you do. If you engage a third-party custodian, that outsider does NOT risk prison for his failures in compliance, only you do. A non-employee custodian's liability is only civil, a breach of his or her obligations to you. Read the proposed contract with the independent custodians closely; most of those who do this commercially set the agreement out on their web pages. You will find limitations of liability that are, in consideration of the consequences that you face when they screw up, more or less shocking. It is not uncommon to see their liability to you limited to the money you paid them in one month as their fee. In other words, you pay them, you face all of the adversities and expenses of prosecution, much of your life may be destroyed, you may lose your business, your family, your good name, and you may be misidentified as a child sex offender, but all they face for even gross negligence or simply walking off the job is perhaps the cost of a meal in a nice restaurant.

Finally, every human enterprise ultimately fails, every business eventually closes, and every human being makes errors. Please consider the effects of each of these certainties when you decide whether you or a person you hire will hold in their hands the issue of whether you violate a serious federal criminal law.

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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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