Shooting Your Own Content?

Gregory Piccionelli
Today, more adult Internet companies are shooting their own content than ever before. Online businesses that have previously only purchased photographs and video are now beginning to create their own content or enter into joint ventures with existing producers. This trend is even more pronounced for companies catering to the niche and microniche markets.

As a result, I am asked with increasing frequency about the legality of shooting hardcore photographs and video outside of California. Given the widespread and probably well-founded belief that many individuals and small companies already are producing content throughout the United States, clients and others seeking to enter the adult entertainment business usually are very surprised when I tell them that California is the only legally "safe" place to shoot hardcore erotica. They are shocked to learn that explicit materials sold legally in "liberal" locations like New York, Chicago and Las Vegas cannot be produced in those cities without the risk of prosecution for violation of state pandering or prostitution laws. Consequently, if you are in one of these cities or if you are in a state outside California and you're creating hardcore content or considering doing so in your neighborhood, you should become acquainted with the risks posed by your state's prostitution and pandering laws and how you can maximally defend yourself against prosecution, should that happen.

First, it is important to understand that every state has laws prohibiting the payment of money or other compensation in exchange for sex. These are usually a state's felony prostitution and pandering laws. For example, under California law, which is similar to that of many states, prostitution is defined as "any lewd act between persons for money or other consideration," Cal. Penal Code Sec. 647(b). A "lewd act," in turn, occurs when "the genitals, buttocks, or female breast, of either the prostitute or the customer... come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute." 250 Cal.Rptr. at 600.

California law further provides, as do the laws of many states, that a person is guilty of pandering if that person "procure[s] another person for the purpose of prostitution...," Cal. Penal Code Section 266i. "Pimping" often is defined under state laws as a form of pandering.

A typical hardcore adult photo or video shoot generally involves the payment of money to actors or models to render acting or modeling services that include hardcore sexual performances.

Under the laws of virtually every state, the payment of money or other consideration for such sexual performances will constitute prostitution. Moreover, the procurement of persons to perform such performances will constitute pimping or pandering.

California is indisputably the world's adult video production capital. The center of "the business," the San Fernando Valley, has even been affectionately dubbed "Silicone Valley."

This state of affairs has not evolved by chance. It is said that the law sometimes makes strange bedfellows, and such is certainly the case between the Sunshine State and the sunny state of the California adult content production business, and it's all because of a guy named Hal.

Back in late 1970s and early ‘80s, an enterprising producer and director of pornographic films, Harold "Hal" Freeman hired and paid adults to perform sexual acts in front of his film cameras at secret locations in and around Los Angeles and San Francisco.

In 1983, while shooting a film called "Caught From Behind, Part II," Freeman was arrested and charged with five counts of pandering based on his hiring of five of the film's performers.

Even though he was never charged with violation of any of California's obscenity laws, Freeman was tried before a jury and convicted on all five counts of pandering.

He was sentenced to 90 days in the county jail and ordered to pay more than $10,000 in restitution. Even though Freeman lost on appeal to the California Court of Appeal, the California Supreme Court reversed the conviction and issued a groundbreaking opinion. People vs. Freeman, 250 Cal.Rptr. 589 (Cal. 1988).

In Freeman, the California Supreme Court held that "in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification," 250 Cal.Rptr., at 600. Applying this principle, the court characterized the payments made to the performers as "acting fees" and held that "there is no evidence that [Freeman] paid the acting fees for the purposes of sexual arousal or gratification, his own or the actor." Id. Thus, the court held that Freeman "did not engage in either the requisite conduct nor did he have the requisite [intent] or purpose to establish procurement for purposes of prostitution." Ibid.

In fact, the California Supreme Court went on to observe that "even if [Freeman's] conduct could somehow be found to come within the definition of ‘prostitution' literally, the application of the pandering statute to the hiring of actors to perform in the production of a non-obscene motion picture would impinge unconstitutionally upon First Amendment values." Ibid.

Revolutionary Ruling
The California Supreme Court's ruling that free speech trumped the prostitution and pandering laws was nothing short of revolutionary, and it paved the way for a new multi billion-dollar international industry centered in California.

Today porn shoots in California, especially in the Los Angeles area, are as common as traffic jams on the freeways and occur throughout the day, every day, everywhere in Los Angeles.

Unfortunately, so far, no other state's high court has adopted the California Supreme Court's sound reasoning, and the Freeman decision is legally binding only in California.

Consequently, if you hire actors or models to perform explicit sexual acts for you or your company anywhere in the United States outside of California, you will probably violate your state's prostitution and pandering laws.

While prosecutions for prostitution or pandering in the context of content production are, thankfully, relatively rare, they still do occur occasionally.

One extreme and well-publicized example of the application of local pandering laws to sexual performances occurred in 2002 when married couple Tom and Suzy Wahl were arrested and convicted of prostitution in St. Louis for engaging in sex, as husband and wife, with each other during an educational sex seminar produced by the couple for which they received monetary compensation.

Unlike Hal Freeman, the Wahls were unable to have their convictions reversed on appeal.

The Wahls' experience does not mean that your state's prostitution and pandering laws cannot be trumped by principles of free expression if challenged, as California's laws were in the Freeman case.

But it does mean that if you choose to shoot in a state other than California, you should know the risks and be prepared, as Hal Freeman was, to defend yourself.

Needless to say, that can be expensive. Consequently, if you do not have the funds to mount such a defense, you might want consider the substantially less expensive and substantially more enjoyable alternative of a trip to Los Angeles.

Gregory A. Piccionelli, Esq. is a senior member of Piccionelli & Sarno, one of the world's most experienced law firms specializing in Internet and adult entertainment matters. He can be reached at (310) 553-3375.

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