More and more European Content Producers are choosing to do business with American. webmasters. While citizens of foreign countries cannot be compelled to comply with United States’ restrictions on the creation of adult material, business realities are forcing foreign content producers to consider voluntary compliance.
American webmasters, painfully cognizant of the increasing need to focus on legal compliance, consistently reject foreign content that is not produced in compliance with 18 U.S.C. §2257. Non-compliant content not only increases the risk that an underage model could slip through, but failure to strictly comply is itself a federal felony, exposing those involved to a 2-year prison term. Given the substantial compliance motivations involved, foreign content producers are expected to adopt the U.S. requirements as the global standard for creation of sexually explicit imagery. The following constitutes a bare minimum checklist for compliance with the requirements of Section 2257:
1) Assume that all erotic images require Section 2257 compliance: While the law only applies to actual “sexually explicit activity,” it is ill-advised for the content producer or the webmaster to attempt to guess which images require compliance, and which can be safely distributed without compliance. Since child pornography does not require the depiction of sexual activity to meet the federal definition, such distinctions can be risky business. And, in any event, a release given by a minor normally is not enforceable.
2) Obtain a signed compliance form created by a competent attorney: Section 2257 requires that certain records be created containing certain information. The right form is the best place to start.
3) Obtain, at a minimum, the following information from each model:
a. Date of Birth
b. Legal Name
c. All other names, aliases, nick names, stage names, and maiden names
d. Social Security Number
e. Copy of Government-Issued Identification containing a picture; preferably 2 pieces of identification. Note the requirement that the producer actually examine the identification document, not just the cops.
f. Address, phone and other contact information
g. The model’s signature
4) Require the model to execute a binding model release prepared by a competent attorney. The images are only as legal as the model release backing them up. If all relevant rights have not been transferred and released by a valid model release, both the webmaster and the content producer are subject to claims once the content is displayed on a Web site.
5) Maintain the records so that they are cross-indexed by the models’ legal names and stage names and by web page. Alternatively, provide copies of all records to the webmaster if the webmaster will act as Records Custodian. You need to discuss the particulars of this with an attorney, because each circumstance may be unique.
6) The Records Custodian should maintain an off-site backup copy of the records: What happens if there is a fire or a government seizure?
7) Include a conspicuous records custodian disclosure on all CD’s / DVD’s containing erotic imagery, including the full legal name of the custodian and physical address where the records are kept. The disclosure should also certify that all models are over the age of 18, and include the date when the content was first created, published or republished. Placement of the disclosure on the product should be reviewed by an attorney.
Only through strict compliance with the mandates of Section 2257 will American webmasters fully embrace content produced overseas. The right compliance procedure will open profitable markets for foreign content producers, and result in a wider variety of adult content for both webmasters and consumers.
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com, or AOL Screen Name: “Webattorney.”