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Legal Protection for Amateur Shoots

Legal Protection for Amateur Shoots

September 15, 2016
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" You can depend on the proposition that a certain number of your actual-amateur performers will have regrets and express them to you somewhere down the road. "

Any adult industry professional who creates video content with actual first-time amateurs will come to an early knowledge that later performer regret is commonplace. Recognized performers who regularly make their livelihoods in front of cameras, of course, are far less likely to have a change of heart.

But you can depend on the proposition that a certain number of your actual-amateur performers will have regrets and express them to you somewhere down the road.

This certain number, a minority to be sure, will come back to producers themselves or through their parents, grandparents or lawyers, accompanied often with the tears of one or more of them, making strident requests or bitter demands for a takedown of the performance for which they were paid. Some performers who banked on the proposition that their social standing among friends and peers would surge are unexpectedly disappointed sometimes, going so far as to withdraw from school.

Some who planned that parents and extended family would never find out — and cared about that — instead found themselves stunned by awkward silence over Thanksgiving dinner. Some of them have now found “true love at last,” others have had a baby and worry about what it will learn when it grows up, and others claim a new insight on life and their bodies gained through religion. It is not my intention to ridicule any of this.

Some of them do experience substantial pain associated with regret, years after. But, whenever it comes, it tends to come too late, after others have invested time, effort, and skill in their performances and after the modeling fee is long spent.

Any lawyer who serves clients producing adult content made with true amateurs will inevitably hear much or all of this in dealing with their takedown demands, and some of us, over the years, have seen it often.

A smart producer of actual amateur content needs to anticipate all of this before conducting shoots and to plan a strategy to deal with them before regrets emerge, in fact before the content is shot. (I use the term “she” here simply out of convenience. My meaning in the use of “she” comprehends male performers as well as those with more complex gender identities.)

Sometimes these performers start with fairly gentle but highly emotional pleas, but no matter how they start, they often acquire a strident and accusing tone, one that reflects an emotional desperation. Over time, they will develop a false memory that distorts the truth in an outrageous fashion, and they convince themselves that they are victims.

It is by no means unusual for them to concoct (willfully or otherwise by self-delusion) the most outrageous and scurrilous falsehoods in order to force a takedown and thereby rob the honest and reasonable producer of the value of his time and monetary investment. These lies are seldom novel. The same or similar accusations recur on a regular basis across the Industry and are often entirely unrelated to any truth.

Sturdy defense against each of them can and should be engineered into your forms and shoot protocols for your own protection so that your potential defense in any negotiation or forum can be based on evidence stronger than a producer’s word against that of a performer, years after the events.

I write that this engineering must go into both “your forms and shoot protocols” for an important reason: it is simply a myth that the text contained in a legal form can entirely extinguish every fire that can be set by a regretful and out-of-control one-time performer.

It is also a myth that the wording of forms can possess a magical and talismanic effect that takes all issues outside the agreement’s text off the table, off the judicial bench.

Simply put, if one party to a contract is underage or is so grossly intoxicated as to obviously be unable to apprehend the nature and character of the situation, she lacks capacity to enter in, and there is no enforceable contract to enforce. Fraud in the inducement and other matters can get behind the most polished terms and permit a court to examine into surrounding circumstances at least in some, extreme cases.

For those reasons, the engineering must go beyond drafting an incredibly solid performer release, but include the design of procedures, protocols, and safeguards extrinsic to the release that will confirm with real evidence the legitimacy of the agreement and the free-will choice that was behind it.

The truth of the matter is that the releases used by some Internet producers are horrible and ineffective. They are sometimes, at least, forms picked up casually online, written to address situations quite separate and apart from live video and they are often adapted, edited, and changed by several generations of self-taught pseudolawyers, some of which manage to entirely defeat the original purpose of the document.

Well-intentioned, subsequent changes often destroy the grammar, spelling, and legal effect of the original. The releases stolen online and used by some producers sometimes deal only with rights in still images and entirely ignore such videocentric issues as performance copyright and copyright concerning the dialog self-scripted by performers. Even what they do establish, often short of what video producers need, is only sometimes done well for still images.

What I’ve written here just skims the surface of the troubles created by home-brew releases, there are many other nasty issues out there. Keep in mind that courts follow rules that generally require contracts to be strictly construed against their drafter or profferor and which also hold that no agreement will be understood to release any right by mere implication: if the release does not explicitly contain language releasing, transferring, or otherwise affecting a right, that agreement is ineffective to shift rights in the producer’s favor.

All of these textual flaws can move the balance of power into the hands of the performer and against a producer who assumes (without justification) that the release gives him more than it actually does.

But, as I’ve said, the written release is only one part of the engineering a producer needs to protect his production against the attacks of now-hostile former performers. Protocols — the means and methods by which a producer deals with a performer — are essential to safeguard the value of a content shoot. An indifference toward carefully designed protocols and a dangerous overreliance on forms as the sole tool of protection sets up inevitable disaster for the producer.

Our culture has now entered the era of the police bodycam, car dashcam, and ubiquitous Big Brother video cameras everywhere, and with those developments, I think, grow the expectations of juries in factually contested cases. Especially when the very profession of the producer is conducted with a camera.

A continuous, audiovisual record of the entire encounter between performer and producer, created with the prior knowledge and consent of the performer (with consent obtained and captured when the record starts) is the single, strongest and most objective evidence that can overcome whatever malarkey that “later regret” may spin to shut down publication of a video. I am talking about a continuously running camera on a tripod in the corner, with audio tested to capture all of the conversation on a set.

It can capture the preliminary introductions and an interview, confirmation of age and free-will consent to all that will follow, mental competence, and establish the facts and sequence of actual Section 2257 compliance steps.

If a producer is clever, he can design the event to demonstrate that the release and other documents were read and filled in, including the performer’s insertion of appropriate initials within text, underlining her knowing consent, establishing that the physical dexterity of the performer was consistent with sobriety, and establishing that no drugs or alcohol were consumed during the shoot.

All of this requires smart preplanning for effectiveness and at least the rudiments of a script or checklist to establish the evidence you may need to overcome ruthless, later-invented falsehoods and self-deception. The use of a “safe-word” and the existence of a continuous record of the entire session is the best protection against later-concocted claims of an involuntary assault.

Do not neglect that the best evidence of voluntary consent for the recorded activity is established by showing that the performer had limits and expressed how far she was willing to go, and more importantly, perhaps, identifying where she did not wish to venture. A refusal to do some of what is discussed is precisely what most convincingly establishes the performer’s consent to the rest of it. Valuable, effective evidence of consent, as well as payment of the agreed, contractual consideration, can also be created in a post-shoot interview.

Related closely to other consent issues is the pressure that some performers may later claim from the hands of third parties, coercing the performer to conduct your shoot. Because of this potential, it is prudent to inquire about the person or persons who brought the performer in and the circumstances of her arrival in order to eliminate questions that bear on consent. Should a producer develop any concern that the shoot is not a free and uncoerced event, it obviously cannot proceed.

Strict and punctilious compliance with Section 2257 is a producer’s first and best friend in defeating claims that the performer was underage. The usual techniques of face plus ID photography, the use of today’s newspaper with the ID and/or face are all appropriate.

I urge the use of age verification that goes beyond the requirements of that law because stolen/borrowed/fraudulently issued ID have been presented in bars since time immemorial and sometimes elsewhere. This starts with requiring at least one reliable ID in excess of the law’s requirement (noting that, if it does not meet the literal requirement of acceptable ID under the law, it belongs in an “administrative file” rather than in the actual Section 2257 records.)

I think that producers should extrinsically check the validity of ID, and this means a call to the issuing authority. They’ve never turned me down with a verification request in any state. I keep an expensively-updated a copy of the U.S. Identification Manual in my office for client inquiry about ID that they don’t see every day.

A document in which a producer provides her “alias name” information is a record required of a producer by Section 2257. A producer may, but is not himself required to, mandate that the information be delivered to him in handwriting.

He may, but is not himself required to, mandate that it be delivered to him under the handwritten oath or certification of the performer, together with date and signature. Such a handwriting exemplar can meet a producer’s obligation to record such information — and do so in a manner that creates evidence of the fine motor skill of the performer within the official Section 2257 records. Such evidence may also be useful in strongly establishing the sobriety of the performer if that issue if drug or alcohol intoxication is raised in a demand for a takedown.

It is never a good thing for any performer to become pregnant on the set and appropriate protocols should be planned in advance. It would be a serious understatement to observe that issues here will affect the balance of power between a producer and a performer demanding a takedown.

A smart and competent producer will have a complete and full knowledge of all of the law relating to employment or engagement of performers via other relationships. He should know that the decisions he reaches concerning compliance will have a profound effect on his position in the face of a takedown demand by a knowledgeable or competently-represented performer.

Among certain producers of internet content, it is possible that some have generally ignored takedown demands, reckoning that the odds are really remote that any of the models are likely to get far enough to cause serious discomfort or expense.

Perhaps some of them thought the issue itself would be distasteful to competent attorneys and to courts, perhaps that it was unlikely that any performer might obtain quality representation or actual relief. Maybe they made this assumption based on what they knew of the background and lifestyle of at least some performers, which they judged harshly, and which they assumed would deter anybody’s sympathy. Maybe they counted on low self-esteem. Perhaps some producers believed that, if they, themselves did not have insurance or assets attractive to law firms accustomed to dealing with insurance companies, they would not look like an attractive target for a lawyer’s investment of time and skill.

It is my belief that, if ever these analyses possessed any worth, the times are changing, and that with every passing day, these attitudes become riskier and riskier.

Litigation commenced recently in San Diego on behalf of four first-time amateurs against a major site, based on allegations of dishonest, predatory, and fraudulent dealings, and the suggestion of a broader government concern about the welfare of industry performers cannot be safely ignored in making business decisions from this point out.

If ever there was a time that was especially appropriate to take stock of forms and protocols, to evaluate them for protection, and to better engineer them with an eye toward coming challenges, it is now. If you watch the prevailing winds, tomorrow just may be too late.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the U.S. Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at (312) 558-6420. His email address is obiwan@xxxlaw.net.


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