Secondary Producers

Stephen Yagielowicz
Recently, XBIZ World magazine asked three industry attorneys if they could clearly define the term "secondary producer." Here's what they had to say:

No. Can you? To be sure, however, there will be much litigation about that issue, and the pending Free Speech Coalition case demonstrates that litigation does much to clarify just what laws like this mean. There are some circumstances where someone is obviously a secondary producer, but others are far from clear. And as we analyze this, an increasing number turn up: editors, DVD replicators, graphic artists, web designers and more. Those who find themselves on the cusp are really confused.

— Clyde F. DeWitt, Weston, Garrou & DeWitt

The term 'secondary producer' was found in the U.S. Attorney General's 2257 regulations. Those regulations defined a secondary producer in the following way:

"A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing."

However, in light of the statutory amendments in H.R. 4472, there is no longer such a thing as a secondary producer. 4472 references only one category of producers required to keep records, and that includes both primary producers who actually work with the talent to create content and former so-called secondary producers that reproduce, upload and recycle sexually explicit material.

— Jennifer M. Kinsley, Sirkin Pinales & Schwartz

The term 'secondary producer' never existed in Section 2257 and is not found in the recently amended statute, either. Instead, Congress has included the persons who insert images depicting actual, explicit sex and those who digitize them with a commercial interest into the expanded definition of the persons who 'produce' such conduct. Congress has clearly legislated that secondary producers are, indeed, producers. The obligations of the law affect them as much as the guy behind the lens, assuming the constitutionality of the statute. It is now clear that licensing/assignee webmasters must maintain the records and content, publish the notice, categorize the records and make them available for inspection.

Given the commencement of 2257 inspections by trained teams of agents during recent months, and their intimations of a sustained program of inspection, and in light of the five-year penalty provided for in the statute, it would be foolhardy to continue the publication of covered images that are not documented pursuant to the statute and regulations. It would be unreasonably risky under these circumstances to license or acquire covered content that is not accompanied by the mandated records, in view of Judge Miller's wholesale rejection of the constitutional claims he considered.

Those who have never understood their obligations, and those who never complied, now face the prospect of pulling content down at the risk of a jail term. It also created a federal felony in the refusal of a producer to permit the U.S. Attorney General or his designee to permit the inspections under Section 2257.

— J.D. Obenberger, J.D. Obenberger & Associates

As you can see, there is uncertainty over the practical terms of the law, even amongst experts. What is clear, however, is that this is a serious issue that requires the advice of competent legal council in order for you to make the best choices for your business.

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