XBIZ 2018: Adult Industry Attorneys Offer Their Best Opinions

XBIZ 2018: Adult Industry Attorneys Offer Their Best Opinions

WEST HOLLYWOOD, Calif. — Nine attorneys offered their best opinions on how to navigate the choppy legal waters that face adult entertainment companies during a seminar at the 2018 XBIZ Show this week.

The session peppered the lawyers from moderator Don Parret, XBIZ’s executive editorial director, and the audience with a wide array of questions on everything from internet censorship to social media defamation to sex-trafficking legislation to new opportunities to trademark immoral or scandalous brand names, as well as the current regulatory climate over adult productions and performers.  

The attorneys also gave advice on what to consider once enforcement of the U.K. Digital Economy Act’s age-verification regulations begin. Starting in the spring, the U.K.’s regulator plans to block offending websites, along with processing and traffic activities, and levy fines of up to £250,000.

The speaker lineup was stellar, with each attorney contributing their pearls of wisdom on each of the selected topics. All elaborated on exactly how they can help adult entertainment companies succeed in an always-evolving regulatory landscape.

And each of the nine attorneys at the 2018 XBIZ Show legal panel offered their curriculum vitae and what they do for adult entertainment clients. The lawyers were:

  • Paul Cambria, the name partner for Buffalo, N.Y.-based Lipsitz Green Scime Cambria, who has advised adult companies for “30-some years” — everything from “mom-and-pops to Backpage.com, which I represent now.” His firm, with its 50 attorneys, started focusing on adult with obscenity cases, and later defended brick-and-mortar stores in zoning cases. Today, the firm accounts much of its business representing websites.
  • Jeffrey Douglas, a Santa Monica, Calif.-based criminal defense attorney who also is the Free Speech Coalition’s board chairman.
  • Corey Silverstein, who founded Bingham Farms, Mich.-based Silverstein Legal in 2006, represents mostly adult entertainment clients who seek services ranging from First Amendment cases, domain disputes, intellectual property matters and regulatory compliance, among others.
  • Lawrence Walters, a Longwood, Fla.-based attorney who focuses on First Amendment and Internet issues, as well as occasional obscenity cases as cases are brought. Much of his legal representation involves advertising sites and webcam and dating sites. The attorney, who has focuses on the adult biz since 1989, also is the inventor of several apps — Quick DMCA and Quick 2257 — to help solve legal problems with technology and the industry.
  • Greg Piccionelli, an Encino, Calif.-based attorney who is name partner of Piccionelli & Sarno, which focuses mostly on patent law and business development strategies.
  • Reed Lee, a Chicago attorney who became interested in representing adult entertainment clients 25 years ago after witnessing the bizarre actions of self-declared “culture warriors” who placed aim at the industry. With a prime focus on First Amendment issues, Lee also is an FSC board member.
  • Nick Zargarpour, a Los Angeles-based attorney who specializes in business litigation. Zargarpour, name partner of the Zargarpour Law Firm, started serving adult entertainment industry clients four years ago.
  • Karen Tynan, a Healdsburg, Calif.-attorney representing mostly production companies, who practices in the areas of employment law, Cal/OSHA compliance and other regulatory issues in California and other parts of the West.
  • Maxine Lynn, an intellectual property attorney with the Albany, N.Y., law firm of Keohane & D’Alessandro. She also operates SexTechLaw.com, which features a blog and podcast focusing on patent, trademark and copyright issues.

The legal seminar, titled “Adult’s Legal Landscape: A 2018 Snapshot” and sponsored by NETbilling, was held at Andaz hotel’s Rooftop Panorama Ballroom in front of a capacity crowd, which was called upon to ask a few questions with Parret.

In an overview of the current state of the industry in the U.S., Douglas called the Trump Administration’s potential effort to shake up the adult entertainment industry as “possible” and that risk assessments for content producers and distributors is paramount.

“The [political] environment we currently live in is unpredictable at best,” he said. “With this administration, adult is at risk. With the transition of the business of adult, where there’s a decentralization of production while distribution is centralizing, it really is a good idea to consider legal consequences and figure out how risk-tolerant or risk-adverse you are.”

Piccionelli agreed, noting, “I think we are in a point in time where we are at a changing point where once again the attorneys are becoming supremely important. This is not a sales pitch.”

But one thing that came out pretty well for edgy, vicy entrepreneurs like those who work in adult entertainment was a recent appellate ruling, Lynn said.

Lynn described how the U.S. Court of Appeals for the Federal Circuit reversed the Trademark Trial and Appeal Board in a key ruling over scandalous and immoral trademarks.

In the case, the Federal Circuit held that the bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech.

“Now you can get registrations on trademarks that are considered scandalous and immoral … that are sexually explicit,” Lynn said. “So the adult industry should be start looking at their brands and consider the possibilities. One thing is for sure: Trademarks protect your brands.

Lynn noted: “Based on these major changes in the law you should be looking at your brands and start registering them.”

And brands should always register their valuable marks, said Walters, noting that he handles a lot of cybersquatting cases that could have been dodged without legal costs.

“Reduce the expenses in a UDRP by getting the registered mark,” Walters said. “It’s better than chasing down infringers.”

As for regulations while shooting adult content in California, Tynan noted that there has been change in the past year and a number of new things to consider.

“The two things I want you to walk away with is that, No. 1, the Free Speech Coalition has a template for a bloodborne plan [for producers] that you can and have a compliant plan,” Tynan said. “No. 2 is that Cal/OSHA has become a complaint-based agency. They are not having programs on inspections. So we’ve had a bit a of relief.” 

Cambria noted: We haven’t seen subpoenas for quite some time. Things have simmered down. The only thing we’ve been worried about is the talent who has been displeased with the studio will call in a complaint, and then Cal/OSHA comes a knocking. And it is unfortunate … it is bad for the whole industry because that sort of thing catches on. And you’re only hurting yourself.”

Tynan explained if they do come knocking, Cal/OSHA will do so 72 hours after an initial complaint, by coming to your studio or by letter. They’ll ask for documents, including proof of insurance.

The attorneys were asked to chime in on the topic of defamation, particularly in regards to libelous statements made on social media.

Silverstein said that claims of damages in these types of cases is what to focus on and that states have different laws regarding defamation.

“In essence, you have to show damages and ask, what is the injury, what is the industry? Was there a job loss? And this is what the courts have always struggled with,” Silverstein said.

“You always need to figure the costs,” he said. “It could cost someone $100,000 to $150,000 to wage such a case. But we are not going to see defamation cases like you would 25 years ago, because everyone is a publisher with social media platforms like Twitter. As social media grows, everyone’s got a voice now.”

“Truth is the ultimate defense [in defamation cases],” he said. “And it is no longer defamation if the statement is true.”

Cambria added that in many cases, defamation plaintiffs “are trying to involve the operator of the website because there is money there … they want to pull you in because of the deep pockets.”

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