Industry Outlook: Ask The Lawyers
LAWRENCE G. WALTERS
The legal trends we will most likely see in 2014 will focus on the shift in adult entertainment from professional porn stars to webcam models, escorts and amateur models.
Professional adult production is subject to a substantial level of legal evaluation, performer STI testing, 2257 records creation, age verification, model releases, copyright clearance, etc.
With current technology, anyone can be a porn star, a model or an escort, with very little effort. However, the legal issues are still as serious and significant as they are for professional producers and performers. So I suspect we’ll see some level of civil or criminal enforcement of adult entertainment regulation against amateur producers, who have not spent years in the trenches learning the legal nuances of producing adult content.
With so much amateur / webcam content being generated overseas where child exploitation laws are not as strict, we may see legal issues with conflicting age of consent laws and underage content.
The issue of “accomplice liability” has still not been sorted out for the online service providers, network operators, and others who merely provide space for adult entertainers to communicate. That is an issue to watch in 2014.
STIs will continue to be on the industry’s radar, and the outcome of the Measure B challenge watched closely by the industry and other states. We will see a more active role played by the FTC and state consumer protection agencies, who are interested in proper consumer disclosures, billing practices, and unfair advertising activity. Relatedly, more states will consider passing “revenge porn” laws to give victims of this practice a remedy. Legal challenges to some of these laws are inevitable.
The reach of U.S. consumer protection laws being asserted against websites operated in other countries remains an uncertain issue, so we may see some legal action in that regard as well. Finally, the FSC’s 2257 case may be resolved in 2014, depending on how quickly the 3rd U.S. Circuit Court of Appeal acts and whether the U.S. Supreme Court decides to weigh in.
But for now, the industry has seemingly accepted their 2257 obligations.
1. Lurking around the corner from Prop B, OSHA and the condom issue in general is the larger issue of liability of porn producers to performers. It is sure to come in the courts, it will come sooner rather than later, perhaps in 2014, and it has the potential to affect this industry profoundly. In a worst case scenario, it might hit this industry as hard as the sex abuse scandal hit the Catholic Church. Or it might blow over, especially depending on what may happen in early cases. Much will depend on how judges weigh public policy and other factors against release terms. It seems to me that a critical mass of performers and former performers is coming together on the condom issue, in a fashion antagonistic to the interests of entrenched producers, and that creates a potential for collaborative action of a more dangerous character against them. It’s really time to reexamine all of the releases in use and all of the protocols for shooting.
2. Revenge posts, upskirt images (and the equivalent such as X-ray cams) and voyeur images have really captured the headlines in recent months and have precipitated a wave of state legislation meant to address them. Look in 2014 for more states to join the groundswell coming from concern and look for more prosecutions based on blackmail/extortion, some based on racketeering and organized crime statutes. RICO has already been put into play in two other online contexts. I think that this issue is now on the radar of state and federal prosecutors and I suspect that they would like some headlines in order to deter the particularly noxious behavior.
3. For the first time ever, a challenge to 18 U.S.C. § 2257 went to trial last year in Philadelphia. This now goes back to the 3rd U.S. Circuit Court of Appeals on the Free Speech Coalition’s appeal. I don’t expect any dramatic 2257 news, at least not until the 3rd Circuit rules, which I do not expect until near the end of 2014. No matter how that court rules, one or both parties will be unsatisfied and ask for rehearing en banc or cert to the Supreme Court. This issue will continue, I suspect, to percolate behind mahogany doors through the rest of Obama’s second term, and it’s any guess what happens under the next administration.
COREY D. SILVERSTEIN
My predictions for 2013 were fairly accurate.
2013 saw the commencement of the fight against Measure B in the courts and intellectual property protection and litigation probably reached all-time highs.
I believe that the 2013 STI outbreaks will carry over into 2014. Lawmakers seem to be paying close attention to the recent HIV positive test, and I believe that there will be ramifications for the content production section of the industry. Make no mistake about it, unless the adult industry does a better job regulating itself, it is going to lose that privilege.
In the online dating arena, I believe that in 2014 we will see more investigations and government crackdowns on dating websites that utilize tactics that the Federal Trade Commission believes are deceptive and/or unfair against the public interest. The time is now to make sure that all website operators are complying with the law and consulting with their respective counsel.
Google Glass, Xbox One, Playstation 4 and various other new technologies will be hitting the public shelves and I’m sure that the adult industry will quickly be attempting to launch products for all of the new gear.
It’s going to be interesting to see what sort of reception the adult industry receives from the companies putting these products on the shelves. I foresee more intellectual property disputes related to the new gear and perhaps even some degree of acceptance related to these products.
Finally, in the 2257 arena, unfortunately, I do not believe that 2014 will see the end to the Free Speech Coalition’s battle with the U.S. government.
Federal practice moves slow and the federal appeals process moves even slower. 18 U.S.C. § 2257 remains valid law and will remain valid law through 2014.
ROGER JON DIAMOND
I do not envision any drastic change in the nature of the issues facing the adult entertainment industry. The issues will basically remain the same. They will include copyright protection, privacy invasion, obscenity and local zoning and licensing for live adult entertainment.
With respect to obscenity I do not believe the government will pursue any more obscenity cases. The last case, U.S. v. Isaacs, is still pending and unresolved. I do not anticipate any more federal obscenity prosecutions in the Obama administration. There were none in the Clinton administration. As long as there is a democrat in the White House I do not envision additional obscenity prosecutions.
The situation is different with respect to local zoning and land use issues. There are some cities that are still fighting. For example, the City of Chula Vista filed a civil action against a recently opened strip club. The City of Industry is hassling local strip clubs with respect to such things as hours of operation. For example, the City of Industry is trying to enforce strict closing laws requiring adult strip clubs to close by 2 a.m.
Local police and deputy sheriffs continue to pursue local prostitution charges against strippers who allegedly solicit sex acts for money. In my entire legal career I have never lost a prostitution case involving a stripper, yet the police at the local level continue to prosecute. I have noticed that in cases that I handle the local prosecutors are anxious to make deals and dismiss cases or plea bargain down to infraction violations and dismiss the prostitution charges. I have noticed that when I appear on a case I get pretty good offers when the local prosecutor learns of recent prior acquittals.
Essentially the battle grounds seems to be at the local level involving live conduct. With the exception of the Isaacs obscenity trial I do not see anything on the horizon with respect to movies or magazines.
Without a doubt the major legal issues for the adult entertainment industry in the coming year, at least on the film production side, will revolve around HIV transmission/prevention, worker safety and Cal/OSHA.
Various factions within California are determined to increase regulation of the industry.
While some regulatory refinements may be in order, these factions are likely to overreach and over regulate. The unfortunate results are predictable.
Some producers will get out of the business, selling their companies to larger enterprises on the East Coast, Canada and elsewhere. Others will move to Nevada.
Those who don’t think this will happen, have their eyes closed ... it’s already happening.
And most unfortunately, some productions will go underground, shooting in gorilla fashion where working conditions will be far more dangerous not just for the performers but for the entire crew.