And of course, there were the lawyers. In addition to adult industry attorneys, Jeffrey Douglas, Gil Sperling and myself, the "Think Tank" organizers also invited a number of labor litigation lawyers. Needless to say, with so many attorneys present there were numerous lively debates regarding the many legal issues that would be triggered by new Cal/OSHA regulations targeting adult content production businesses.
For example, one panel addressed the controversial issue of whether Cal/OSHA even has the legal authority to create and enforce health and safety regulations pertaining to adult content production. The question arises from the fact that Cal/OSHA's enforcement power is limited to employer-employee situations, but the adult industry almost ubiquitously characterizes adult content performers as independent contractors and not employees. Three panel members, a Cal/OSHA representative and two labor lawyers argued that regardless of how the adult industry has heretofore classified its performers, the industry practice of characterizing performers as independent contractors is, for the most part, simply wrong. According to Cal/OSHA, the level of control that adult content producers generally exercise over performers in the rendering of their services makes adult performers employees and not independent contractors under state law.
As a result, Cal/OSHA has taken the position that the agency currently has all the authority necessary to apply and enforce new state occupational health and safety laws pertaining to the production of adult motion pictures and other adult content production. Needless to say the position advanced by Cal/OSHA provoked contrary opinions and arguments from some of the industry attorneys and other "Think Tank" participants.
Candid Opinions
Because the event organizers took such care to solicit candid opinions by those present, adult industry representatives were exposed to the views, and biases, of many state regulators and their advisers. As a result, it was clear, at least to me, that from the outset of the meeting to its conclusion, most if not all the government representatives clearly displayed a strong desire to subject adult content producers in California to a new set of restrictive health and safety regulations requiring, among other things, mandatory STD testing and mandatory use of condoms in adult content produced in the state.
On the issue of condom use, virtually every industry person in attendance agreed that condom use in adult content creation is an intelligent way to protect the safety of adult industry performers. But many, myself included, expressed the opinion that performers and not bureaucrats should be parties to determine whether condoms will be used in their performances.
Additionally, I informed the industry's would-be regulators that most adult content producers strongly feel that the consumers of their products generally do not prefer to view male performers wearing condoms in sexual depictions. Because of this, I informed the group that a mandatory condom law, while well intended, would likely motivate producers to shoot outside of California or drive production in the state underground.
Underscoring this concern, Mitchell reminded the group that one reason why AIM has been so successful in preventing HIV transmission in the industry is the fact that most of the adult content production has heretofore been in California. She warned that driving the content production out of state or driving it underground likely would increase the risk of increased HIV and other STD transmission in the industry.
It also was very interesting to hear the opinions of the labor litigation lawyers present. It was clear from their presentations and comments that new regulations imposing a mandatory condom rule would be a boon for such lawyers. This is because a mandatory condom regulation would set the standard of care for negligence lawsuits against adult content producers. That would mean that if a performer contracts an STD because of the producer's failure to require the use of condoms in the creation of adult content, the producer could be found liable for damages resulting from the producer's negligence in shooting the content without requiring the use of condoms. There is no doubt that if a mandatory condom rule goes into effect, given the current rate of non-HIV STD transmission among performers, trial lawyers will be lining up in droves to sue what they perceive to be deep-pocket production companies for negligence. Such lawsuits could potentially expose producers to millions of dollars of liability per claim. Because of this, I suggested that if a mandatory condom regulation could not be avoided, such a requirement must include some type of limitation of liability to protect producers or they will simply ship production out of state.
Despite some moments of acrimony, the "Think Tank" conference ended on an upbeat note, with all present expressing high hopes that the meeting marked a new era of open communication between government regulators and the adult entertainment business.
As of this writing, the state has not imposed new heath and safety regulations targeting adult content production. Hopefully, if and when that happens, the pledge of continued cooperation might motivate the creation of new laws that will be reasonable and fairly enforced.
Deep Concerns
Unfortunately, however, my observations of the industry's would-be regulators and their advisers during the "Think Tank" lead me to believe that any such new regulations will more likely than not be overkill and counter productive. I am deeply concerned that what we might see is a heavy-handed approach that disregards the interests of adult producers and, in doing so, accomplishes little more than accelerating the departure of adult content production from the state and driving what production remains underground. If that happens more, not less, adult performers are likely to be exposed to undetected carriers of sexually transmitted diseases.
I am also concerned that if new health and safety regulations are promulgated in disregard of the interests of adult content production companies, we will see a tsunami of vexatious lawsuits brought by performer plaintiffs targeting adult content producers.
I hope that these predictions do not come to pass. For if they do, they will add to and exacerbate formidable challenges already facing California's adult content producers, including increased foreign competition, a general glut of content, customer competition, piracy and potentially more aggressive federal prosecutions. As such, if the regulations do not address producer concerns, they may simply sound the death knell for California's porn production industry, and that would be an unfortunate loss for both the state and the adult entertainment business.
Despite the many challenges California's adult content producers likely will face in the years ahead, I hope that the adult production business will always be a vibrant part California's economy and the culture of freedom we enjoy here. California's adult content producers are proud of their creations and have understandably longed for decades to achieve broader cultural recognition of the legitimacy of their work and their business. It would be sadly ironic if just as the industry is finally beginning to be taken seriously as "a real business" by California regulators, the adult production industry is forced out of state as a consequence of that recognition.
Hopefully, the old saying, "be careful what you wish for because you may get your wish" will not be a fitting epitaph for California's adult content production industry.
Gregory A. Piccionelli, Esq. is one of the world's most experienced Internet and adult entertainment attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at www.piccionellisarno.com.
