Given all of the rhetorical fireworks of the past 16 months, including the predictions from some in the adult world that the sky was falling down, it's only natural that brick-and-mortar adult retailers and distributors have wondered whether these changes in the law may affect them. This brief article is directed to the operators of stores who sell and rent adult content over the counter.
The most important legal duty of every adult retailer under 18 U.S.C. § 2257 is to stay clear of any transactions concerning explicit adult depictions which does not contain a disclosure statement as required by that statute. Any transfer of pertinent materials which do not contain a disclosure statement subjects the retailer to as much as five years imprisonment. The statute applies to any kind of transfer, including rental as well as sale, and to print material, box covers and the packaging for novelties as well as the actual video products. The retailer is responsible for assuring that the actual DVD or videotape sold contains the notice when required.
A prudent store owner first should take stock of his inventory and confirm that a disclosure statement containing the information required by law is printed on every item containing a covered depiction. He is also responsible to assure that the covered video content he deals in contains the statement required by law.
If the retailer determines it to be impractical to check each and every video for a disclosure statement, he must understand that nothing stands between him and the Bureau of Prisons except his trust for the professionalism and legal compliance of the producers and distributors of the products he sells.
The distributors are held to precisely the same obligations as the retailers and face the same penalty for violation of the statute and regulations.
The disclosure statement must contain:
- The name of the work, unless it is otherwise "prominently" set out elsewhere in the work;
- The date of its production, manufacture, publication, duplication, reproduction, or re-issuance;
- The address at which the records required by law may be inspected; and,
- If the producer is an organization, the name and title of the natural person employed to maintain the records.
The required statement must be displayed in typeface that is no less than 12-point or no smaller than the second-largest typeface on the material and in a color that clearly contrasts with the background color of the material. For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer.
With respect to video, if the title has closing credits, the law mandates the placement of the Disclosure Statement be among those credits. Otherwise it must appear "within one minute from the start of the film or videotape, and before the opening scene."
It is not the responsibility of the store operator to assure the accuracy of the information contained in the notice. He discharges his responsibility in the law by ascertaining that a notice containing the required information is affixed in the manner also prescribed by the statute and regulations.
The scope of Section 2257 is limited to "actual" depictions of "sexually explicit conduct." What "sexually explicit conduct" means is set out in another statute that provides definitions for the chapter, 18 U.S.C. § 2256. For a long time, the applicable definition specifically excluded mere lascivious displays of genitals and the pubic area, while including all kinds of intercourse (oral, genital and vaginal), bestiality, masturbation and sadistic or masochistic abuse. The "lascivious exhibition" language was formerly used only in the definition of child pornography. That changed on July 27 with the enactment of HR4472, which stipulated that images and videos actually depicting "lascivious exhibition of the genitals or pubic area of any person" are now regulated by the statute, including its disclosure statement obligations. (Depictions of merely simulated sexual conduct which also does not feature such lascivious exhibitions are to be governed by the newly enacted Section 2257A, which remains unenforceable for the time being until the Department of Justice promulgates regulations for its implementation.)
Because, until recently, the "lewd exhibition" language was used only to define one kind of child pornography, there exists some dangerous case law from that world. In U.S. v. Knox, 32 F.3d 733 (1994), the 3rd Circuit held that "lascivious exhibition" included images that depicted the pubic area of girls wearing very tight leotards, panties or bathing suits, shown specifically spreading or extending their legs to make the clothed genital and pubic region entirely visible to the viewer and that to interpret the statute otherwise would be to inappropriately emphasize the word "exhibition" when Congress meant a "lascivious exhibition."
It was not essential, in the view of the 3rd Circuit, that the contours of the genitals be patently discernable through the covering — at least where the videographer centered his camera's attentions on the genital area — during a dance performance that the court found atypical of children's dance.
It is probably unlikely that the holding in Knox will be expanded to govern the understanding of that expression in regard to Section 2257 because the consequences have the potential to enmesh many women's fashion magazines, clothing catalogs and media print ads in the regulatory scheme established in that statute.
There exists some possibility that a retailer or distributor may retain in its inventory materials containing depictions now newly covered by the July amendments to Section 2257 without bearing the mandatory Disclosure Statement. This category would consist of material depicting only the genitals or pubic area without masturbation or other sexual activity and would, most likely, be found on box covers or the packaging materials for novelties.
Covers and packaging material should be closely inspected. Materials produced offshore or by small, independent domestic producers, old material that is reissued, as well as material in long and constant production deserve special scrutiny as well.
The mere packaging of discreet works such as magazines or DVDs into a plastic bag for unit sale does not make the retailer a "producer" with record-keeping obligations under the statute. However, retailers should understand that the creation of any kind of montage incorporating images from discrete works, whether on poster board or in a print advertisement or otherwise, almost certainly renders the merchant a "producer" rather than a "distributor" under the statute and implicates complicated duties of record-keeping, inspection and his own duty to create a disclosure statement. It is not a recommended practice for those who do not wish to become producers.
Joe Obenberger is a Chicago lawyer. His practice areas include 1st Amendment law, obscenity, defamation, adult entertainment law, criminal law, the law of privacy, and municipal licensing and zoning law. He may be reached at (312) 558-6420 or by email at obiwan@ xxxlaw.net.
This article does not constitute legal advice nor does it establish any attorney-client relationship.