the arts and technology law group The adult entrepreneurs guide to business law(tm) This is a free web site that contains much of the current legal thinking on many of the issues important to running an adult entertainment web business Keep your eyes open for the soon to be released Adult Entrepreneurs Guide to Business Law

Tuesday, June 14, 2005

Top 10 Cheat Sheet for 2257

18 US 2257
New and improved
Top 10 Cheat Sheet


1. What content is covered (e.g 2257 content)?

To be subject to 2257 your content must be “visual depiction of actual human being engaged in actual sexually explicit conduct”
** No 2257 requirements if:
not actual human being

2. What is actual sexually explicit conduct?

See 18 USC 2256(2): any kind of intercourse; beasiality; masterbation; s&m; lascivious exhibition of genitals or pubic area

3. What is Lascivious?

Broadly interpreted by courts; has been interpreted to mean “depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area…, in order to excite lustfulness or sexual stimulation in the viewer." See United States v Knox (1994).
Breasts alone are NOT genitals

4. Who must comply:

You must comply if you “actually film or videotape” or “create a digitally/computer image” 2257 content OR
If you “produce”, “publish”, “duplicate” “reproduce” or “insert on a computer site” 2257 content
BUT NOT IF you are a “printer”, “film processor”, “video duplicator”, “merely distribute”, OR “operate a posting service such as Usenet, bulletin boards and similar services” and remove child pornography from their sites, OR are a web host without right to “manage the 2257 content”
If you “cannot reasonably manage the content of the site” by contract or technical reasons you do not have to comply with 2257.
ALSO NOT noncommercial (free) or educational distribution.

5. What is merely distribute?

Are you more like a film processor, printer movie theatre or book seller or do you change the content you distribute or make new content?
“Mere” means you DO NOT film, videotape, photograph, produce, duplicate, reproduce or insert on a web page

You cannot have it both ways
Do not rely on Sundance’s definition (at least not yet)

6. What if I merely link a user to a web site that has 2257 content?

Are you changing the content into new content ?

7. What info required?

Please read 75.2 for the specifics; it is quite clear. IT NEED NOT INCLUDE SOCIAL SECURITY NUMBERS.
BUT because you are entitled to “rely in good faith on representations by performers regarding the accuracy of their name” we recommend you send each performer a letter stating the information you have on file for such performer and that you will be relying on such information unless the performer instructs you otherwise. Such a letter could provide you an affirmative defense in that you were took reasonable efforts to determine the accuracy of the information on file and thus you acted in good faith reliance on such information.

8. Can I rely on the information given to me by the photographer (e.g Primary Producer?)

Because secondary producer is said to be in compliance by accepting from the primary producer their records, we recommend that you send a letter to the primary producer stating that you are relying on the accuracy of the information provided by the primary producer. We recommend that all contracts between secondary and primary producers contain language that requires the primary producer to represent that the information provided is accurate and that the primary producer will indemnify the secondary producer for any and all claims arising from incomplete or inaccurate information. We do not believe that this risk is insurable by either party although we have not confirmed the same.

9. What if I am off shore?

First, where are you in the food chain? The photographed, photographer or webmaster? Where do you file taxes? Own property?
What does being off shore mean? If you shoot all of your content out of the US and sell all of your content completely out of the US, then 2257 may not apply to you but if anyone buys your content and it is 2257 content, they will require 2257 records from you. Thus, if you are a primary producer selling in the US, secondary producers will need 2257 compliant content. If you are a secondary producer

10. I am concerned about giving up my privacy, what do I do?

The rules allow you to list ANY 20 hours per week as your “normal business hours” to permit reasonable access. If you operate at nite, you do the math – 3 hours per nite between 2 and 5 am equals more than 20 hours.
Post your normal business hours to avoid “them” imposing their schedule on you.
What is your “place of business?” If you can afford to have your 2257 records stored at a business address instead of your home office, we recommend you do just that. Many office suites have monthly charges of as little as $100 per month just to have your name on the door. You could maintain an office at an office suite with a server that has your The Department of Justice did not feel that there was a likelihood of a problem with privacy.

This blog does not create an attorney-client relationship and cannot be construed as legal advice. I am not your lawyer. Please consult with your lawyer before acting on anything related to your rights. This blog is intended for discussion purposes only. Use at your own risk. You have been warned.