AdultBizLaw.com - Fattorosi & Chisvin

Come by the AdultBizLaw.com booth (#6059) and say hello. Vanessa Blue as well as other pornstars will be meeting and greeting fans at our booth. We will be in Las Vegas January 8th through the 11th at AEE/AVN and the 12th through the 14th at the Internext Expo. Michael Fattorosi will also be participating in a seminar panel on Saturday January 10th between 3:30 and 5pm — Before You Say “Action” – Adult Filmmaking 101

Whether you want to be a director, performer or producer of adult movies, you don’t want to miss this session. Our panel of industry leaders includes agent Derek Hay, Wicked director Michael Raven, Evil Angel director/producer/actor John Stagliano, attorney Michael Fattorosi and moderator Steve Harper with the Adult Business Academy who will tell you want you need to know in terms of what kind of content is popular, average production costs, ways of distributing product and how to make sure you’re legally protected. Don’t get behind or in front of the camera until you’ve heard what they have to say!

We are also hosting an AEE party at the Erotic Heritage Museum on January 9th — Vanessa Blue Presents… A Night of Art and Eroticism. Please email us at vip[at]bluesharkproductions.com to be placed on the guest list.

One of the most confusing aspects of 28 CFR 75 is the question of whom exactly do these regs effect and how do you know if it applies to you. That question is based on two words — “lascivious exhibition.” What does lascivious exhibition actually mean ? That is the difficult question. There is no clearly defined answer unfortunately. However, 28 CFR 75 indicates that if you produce content that contains “lascivious exhibition” of a human body, you may have to comply with 18 USC 2257. In 28 CFR 75, a case involving child pornography is cited as the defining case in regards to lascivious exhibition.

Courts have struggled to define “lascivious,” which is “not self-defining.” The regs rely on United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), in which the district court cited six factors that should be considered: (1) was the focal point of the visual depiction the child’s genital area; (2) was the setting sexually suggestive; (3) was the child depicted in an unnatural pose or inappropriate attire given his age; (4) the degree of nudity; (5) did the image suggest sexual coyness or a willingness to engage in sexual activity; (6) was the image intended to elicit a sexual response from the viewer.

If you produce content — we will be discussing what “produce” means in the next update — then you have to be aware of the Dost factors. Most do not realize that even if the content you produce is fully clothed, you still may have to maintain records pursuant to 18 USC 2257.

For the most part, the better part of the weekend was spent reading the new regs that apply to 18 USC 2257. The regs - 28 CFR 75 is a rather long read. There is a lot of useful and necessary information for the content producer and webmaster alike. If you have not read the regs, please do so immediately. I realize a lot of my clients want a basic general overview, but if you do not read the regs yourself, it will be difficult to explain the changes. 18 USC 2257 will be a topic that will be covered in depth not only on AdultBizLaw.com but on every other website and forum in the industry. Be careful who you listen to in regards to the regs.

Some note worthy changes/clarifications…

(1) third party custody is now allowed
(2) foreign ids are okay if a US company is shooting in a foreign country, if the talent is foreign BUT if the talent is US living in a foreign country they still need their US ID.
(3) cannot shoot foreign talent in the US unless they have US ID and are legal to work here.
(4) social networking sites do not have to keep record UNLESS …. and theres a catch
(5) secondary producers MUST keep records, linking to primary producers is not enough.
(6) a link/compliance statement on every page is necessary…

There are more changes than just what I listed. If you have even simulated sex on your site, you may have to keep records. The regs take effect in March so my advice is to read them yourself and if needed, have one of the adult industry lawyers explain it as well. I see them starting inspections again after these take effect.

Once again, Michael Fattorosi will be doing a free video chat this afternoon from 2pm to 4pm PST. Whether you are a Member of AdultBizLaw, a Member-Client of Fattorosi & Associates or a visitor to the website, everyone can attend. General legal questions are allowed, however, no specific questions can be asked do to the public nature of the chatroom. In order to log on to the chat, please visit AdultBizLaw.com after 1:45pm and follow the directions and link on our front page to log on. If you have a webcam and microphone please turn them on. If not, you will still be able to see and hear Michael, however you will have to type your questions.

Here is a link to the new regulations now available on-line…

PDF Copy of New Regs - 28 CFR 75

It appears that the US government is trying to clarify 18 USC 2257. The link above is to 28 CFR 75, a 150 + page clarification and “how to comply” manual for the adult industry. It is a long and difficult read. However, we strongly advise that anyone the produces or publishes content in anyway, read the entire regulation and familiarize themselves with the law.

There is much to the new regulations, which will take effect in 90 days — March 19, 2009. Mark your calendars accordingly. We will be reviewing 28 CFR 75 in detail over the course of the next several weeks and will be providing insight as to what the new regs mean. I am sure you will also read countless blogs, message board threads and articles as to what everyone thinks the new regs mean. I am also sure that you will attend several seminars over the course of the next couple of months where other attorneys in the industry will speak as to their interpretations of the regs. Make no mistake, if you are going to produce content or publish content within the meaning of 18 USC 2257 and 28 CFR 75, you must know the law. Ignorance is never a defense.

By Tom Hymes of XBiz.com published December 18, 2008

As most of you have probably heard, the DoJ is publishing the “new” 2257 regulations in the Federal Register today, which means they will go into effect in ninety days. I am sure industry attorneys will weigh in ad nauseam with interpretations of what the regs say, and this time around we can only hope and pray, and then pray some more, that they find common ground on which to agree (I jest), but in the meantime, the bullets below (courtesy of DoJ!) will give you an idea of the changes Justice has agreed to make.

* Consolidated the publication of the final versions of the two proposed rules into one final rule;
* Ensured that the regulatory requirements applicable to depictions of actualsexually explicit conduct consisting of lascivious exhibition apply starting on the date of availability of the statutorily provided safe harbor;
* Permitted the use of third-party custodians of records;
* Permitted records to be maintained digitally;
* Clarified the exemption from the record-keeping requirements for those engaged in distribution;
* Clarified that, for purposes of the requirement that every page of a webpage contain the disclosure statement, a hyperlink or “mouseover” is permitted;
* Eliminated the requirement that statements on the location of records contain a date of production (or any other date), although added a requirement that primary producers create a record of the date of production;
* Clarified the application of the requirements regarding location of the statement to DVDs; and
* Eliminated the detailed information required by the certification regime, and replaced it with a significantly simpler certification.

Personally, I think the ability to use off-site third party entities to keep 2257 records is pretty damn huge, and should save a lot of the smaller people a lot of time, money and aggravation in the long run. I think it is safe to say that the DoJ just helped create a cottage industry within adult.

Way to go, coppers!

One area I will need clarification on has to do with adult sites that allow user-generated content (i.e. Tubes, dating site, etc.). My reading tells me that while some of them are exempt from 2257 requirements, the uploading producer of the content is not.

“…Businesses such as dating services that in fact do not produce depictions of sexually explicit conduct, are not the entities that are responsible for record-keeping and disclosure statements. Those responsibilities in those circumstances would fall upon the individuals who post graphic content on the site.”

DoJ also says that adult Tube sites “… may be exempt from keeping records, since the original individual producer who posts a depiction on that site is required to affix a disclosure notice to each page of the sexually explicit depiction…”

Seems pretty clear, but what I don’t see is what happens to the site if the uploader does not provide 2257 documentation in the form of a custodian of record name and address and the site still allows the content to be uploaded. I would presume that they then lose their safe harbor.

Also, if I’m reading this provision correctly, what will its enforcement do to the illegal Tube model that continues to bedevil the industry? Will “civilians” actually include such documentation? Doubtful. And what about uploaders of illegal content? Will they provide 2257 along with the contraband? Doubtful as well.

Is DoJ unwittingly handing the industry a solution to the illegal tube dilemma? Or is it trying to unconstitutionally stifle yet another form of speech, but this time that of regular citizens?

I’m just asking.

I am not sure how many reading this article has actually thought about how important it is to be legally protected. While many of you may not think of yourselves as being a part of the “adult industry” you most certainly are. Many of you have full time jobs doing other more mainstream things; whether you are a homemaker, educator, doctor or Indian chief, you also sell SEX TOYS. There it is I said it. You sell horrible filthy toys that make people cum!!! Unfortunately, to some, you are no different that the sex shop at the end of the street where guys in raincoats buy dirty movies in plain brown bags. While we do live in a free society, we still live in a society where you cannot see nudity on television and a flash of a woman’s breast during the Super Bowl caused a huge uproar. So what?? Well, what it means is that while you may not want to look at yourself as a purveyor of filth, some people do and you need to protect yourself — legally.

Being a member of the “adult industry” comes with a lot of responsibility. You are on the front lines of the fight for individual rights and liberties. Did you know that in some states you could be arrested and jailed for selling a vibrator? In other states, you could be arrested for selling a XXX DVD. Yes, that’s right, sell a dildo and go to jail. The thought of that in the 21st Century is appalling but it is the truth.

So you’re thinking, hey I live in a cosmopolitan area, that can’t happen to me. Guess again, even in California there are laws against selling sex toys at home parties. Two years ago, Sacramento County passed an ordinance that makes it illegal to hold more than two parties per year in your home, if your home is within 1000 feet of where children might gather. Where could that be, you ask. The answer is just about everywhere — schools, houses of worship, playgrounds, bus stops, parks ect. Do you know if your town has a similar ordinance? What about using your home as a place of business? Some towns and cities have restrictions on the number of yard sales one person can have in a year. Would that apply to home parties? The simple answer is that it might.
What about being licensed within your town? Do you need a city license? Again, the answer is that you might. If you are operating a business from your home and have even one employee you made need a zoning variance to be able to do so. If you have an employee, do you have workers compensation insurance, are you deducting payroll taxes, are you following state regulations in regards to breaks, meals and overtime? All of these issues can determine whether you are operating illegally or legally.

Three of the basic tenets I tell all clients are that they should incorporate and secure the necessary licenses as well as insurance. Being incorporated will give you certain tax advantages that being a sole proprietor would not. I would also advise you looking into the various employment laws and insurance laws within your home state.

In regards to being an “adult” business, certainly there are zoning regulations you have to be aware of and comply with in order to operate within the confines of the local authorities. However, there are also state laws affecting your business. Many of them having to do with shipping products across state lines or into states that have a legal ban on adult toys. You should be very conscious of where you ship a novelty item or a DVD. Many of those in the adult industry keep abreast of what are called “do not ship” lists. These are basically a list of states, counties, cities and sometimes even zip codes within a county where shipping adult novelties and or DVDs could be a state or federal violation. If a portion of your business includes shipping products then you should also be aware and stay on top of recent legal decisions that might affect the legality of such.

However you may conduct business, it is imperative that you seek legal counsel and have all the necessary facts to stay legal. Being a retailer or wholesaler in the adult business is full of traps and potholes, take the necessary steps to protect yourself and your business.

From XBiz.com published December 12, 2008

CONCORD, N.H. — The state Supreme Court has ruled that a former district court bailiff who offered a couple $50 an hour to videotape them having sex was not guilty of prostitution, because there was no evidence he was satisfying his own sexual pleasure.

The court ruled that the opposite finding would illegally criminalize the production of a sexually explicit but not obscene movie, which is protected as free speech under the state constitution.

The California Supreme Court made a similar decision in California vs. Freeman in 1988, opening the way for adult video production to flourish in California.

“It seems like New Hampshire has their own Freeman case now,” adult industry attorney Michael Fattorosi told XBIZ. “It’s nice to see that civil liberties and rights are still important in New Hampshire. There’s a lot of people filming around the U.S., so this bodes well for people being prosecuted in other states for filming content.

“I’m sure this case will have a spillover effect to neighboring states and other states throughout the union,” he said.

Although the ruling favors Robert Theriault, 51, he remains convicted of a second charge of prostitution involving another couple which was argued by Theriault’s attorney on a theoretical basis, that the state’s prostitution law is too broad — because it could be applied to activities that are protected, like making movies — and should be thrown out.

Theriault’s attorney was more specific in the case that he won, saying that Theriault needed would have to be considering his own sexual gratification when he approached the couple in order to be guilty of prostitution. Instead, the defense said, Theriault was simply making the kind of sexually explicit movie that is protected speech under the state constitution.

The justices agreed.

“There was no evidence or allegation that the defendant solicited this activity for the purpose of sexual arousal or gratification as opposed to making a video,” the court ruled.

The court did not rule out the possibility that the state could outlaw the making of pornography. But the court said in order to do so, the state must show the filmmaker was in it for his own sexual arousal.

The prosecutor in both cases against Theriault said that he had not decided how to respond to the ruling. If the statute of limitations has not expired, Theriault could be charged again.

In a surprising legal decision the New Hampshire Supreme Court ruled December 4, 2008, that the production of hardcore content is now legal and it is a protected First Amendment right. The New Hampshire decision often cites the 1988 Freeman decision from the California Supreme Court that basically helped pave the way for Los Angeles to become the adult entertainment of the world.

Click below for a copy of the actual decision from the Court. We will be analyzing this decision further and authoring a future article on the importance of this holding.

New Hampshire Supreme Court decision

On December 12, 2008, AdultBizLaw.com will be offering a free scheduled video chat. As a way to reach out the the community, Michael Fattorosi will be available to discuss basic adult entertainment legal issues on Friday, December 12th at 2pm to 4 pm PST. While he cannot answer specific legal questions he will answer general questions.

Members and visitors alike can log on using a link on the main page of AdultBizLaw.com that will be posted immediately prior to the chat. You can log on and remain anonymous or you can use your own webcam and conference in with all of the other attendees. You can either type your questions or use a standard microphone and headset to ask your questions.

If you cannot attend the chat as scheduled, the video of Michael’s chat will be saved and later posted as a saved seminar in the AdultBizLaw.com News & Updates section.

If there is enough interest, free weekly video chats are something we would like to offer the community. Client-Members of AdultBizLaw.com can also arrange for a confidential private video chat to discuss specific legal questions.