educational

2257 - What's the Deal?

Diane Duke
As the industry’s trade association, FSC is intricately involved on a number of issues that impact the adult entertainment industry. From piracy to production insurance, bans on adult novelties to business benefits, we strive to meet the needs of our members on a number of fronts. In other words, we do much more than act as the watchdog and challenger to 2257. However, on the heels of the disappointing Connections decision, with a new administration and new Attorney General in place, and as the dates for implementation of the final regulations for 2257 and 2257A come and go, a number of folks are calling our office asking the question, “What’s the deal with 2257?” It is a good question and, as is always the case, there are few definitive answers. Nonetheless, I will do my best to let you know what we know and to communicate our strategy in the ongoing battle with this overly cumbersome and oppressive record-keeping regulation.

Connections Decision
In October 2007, the 6th Circuit handed down a decision overturning 2257 as unconstitutional on its face. The government appealed and as a result of an en banc hearing, the 6th Circuit handed down a disappointing decision in the Connections case hearing Feb. 20. In an 11-6 vote, the 6th Circuit’s 76-page decision affirmed the trial court’s decision granting summary judgment to the court. Rondee Kamins and Connections have dedicated 14 years and a tremendous amount of financial resources fighting a valiant battle against 2257. We, as an industry, owe them our support and appreciation for their incredible perseverance, courage and generosity.

Third-Party Record Keepers
As amended on July 27, 2006, Section 2257 expressly authorizes third-party record keeping, so that primary or secondary producers may now use others to keep records. These new provisions suggest allowances for a number of different models, including: primary producers serving as record keepers for their secondary producers, a separate entity keeping records for either or both, or continuing to keep your own records. Under the new regulations, many combinations of these possibilities are possible so long as the disclosure statement attached to each copy of each work point to the proper record keeper for that work.

It is important to understand that producers who employ third-party record keepers maintain legal responsibility for proper record keeping. We believe the possibility is remote that producers could be held responsible for minor errors or temporary problems at the offices of third-party record keepers. It is clear though, that producers employing third-party record keepers must provide full and accurate information to the third-party record keepers.

What Is FSC’s Strategy as These New 2257 Developments Unfold?
FSC has developed a three-pronged approach as a result of the new 2257 developments. First, FSC will act as a resource and guide for its members and the industry as adult industry businesses and professionals attempt to comply with these unreasonable regulations. FSC held a summit at the end of the XBIZ Conference (thank you Alec and XBIZ for your sponsorship of that summit). At the summit, FSC engaged industry members — from software companies and third-party record keepers to attorneys and producers — in a discussion about the development of recommendations for third-party record keeping. This process is designed to help industry members navigate the confusing environment of third-party record keeping. Over the next few months, we will continue working with industry representatives from all segments to come up with recommendations and options for third party record keeping.

The second step in FSC’s 2257 strategy is engaging the government to craft record keeping regulations that make sense and work. We, the adult entertainment industry, are the experts at keeping underage people off the set. We know what works and have a proven track record of success. The previous administration wasn’t interested in what worked, they were interested in forwarding their so called “Finally, we are putting the gloves back on as we prepare to attack 2257 head on. As I write this article, FSC is in the midst of selecting its next legal team to challenge 2257.

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