Adult Entertainment Films in California

Can porn be filmed in California?

There are legal grounds for people and companies to pay actors to participate in adult film production in California.

In 1988, the California Supreme Court addressed the issue of whether hiring actors to perform in pornographic films was a violation of California’s pandering statute.  See People v. Freeman, 46 Cal. 3d 419 (1988).  The California pandering statute prohibits the procurement of persons “for the purpose of prostitution.”  In Freeman, the defendant paid actors to perform sexual acts in a film and was convicted of pandering.  The court found that the defendant did not engage in the requisite conduct, nor did he have the requisite mens rea (guilty mind) or purpose to establish procurement.  The court concluded that even if the defendant’s conduct was prostitution, “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.” Id.  Importantly, the Freeman court established that it is not prostitution or pandering to pay individuals to perform in an adult film production.

How we can help

Intellectual Property Protection

If you are a performer or content creator in the adult entertainment space, it is important to protect your business and brand.  Registering copyrights and trademarks can provide legal protections if your creative works are being infringed upon.

• Is Porn Subject to Copyright Protection?

Federal law grants copyright protection to a variety of works, including pornographic materials.  In Mitchell Brothers Film Group v. Cinema Adult Theater, the United States Fifth Circuit Court of Appeals held that the Copyright Act does not contain language preventing obscene materials from being copyrighted.  604 F.2d 852 (5th Cir. 1979).  Further, an infringer cannot claim obscenity as a defense to their alleged infringement.  See Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982).

• Is Porn Subject to Trademark Protection?

Meanwhile, trademarks are used to identify the source of a particular good or service.  Having a registered trademark helps bolster your brand.  Trademarking a word, phrase, symbol or design associated with your brand identity is important because federal registration with the United States Patent and Trademark Office (“USPTO”) helps protect your mark from being used by potential infringers.  In the 2019 U.S. Supreme Court case, Iancu v. Brunetti, Justices ruled that scandalous marks are entitled to protection.

Contracts

The adult film industry has unique legal issues related to contract law.  It is important to work with an entertainment lawyer who knows how to navigate the field.  Our lawyers have experience executing television and film contracts such as location releases, talent agency agreement, attachment agreements, appearance releases and distribution agreements.

When entering into an adult film contract, consider: is your agreement exclusive?  How long is the term of the agreement?  If you are a performer, what can a company do with your name and image?  If you are a company, does your agreement have proper and legal consideration as it relates to sex work?  We can also assist in contract negotiations to help you prioritize your goals and explain how contract terms may affect your personal, legal and business interests.  Additionally, lawyers can help ensure that businesses are executing enforceable contracts that comply with laws and public policy.

Business, Labor and Employment

If you are looking to make adult film content and wish to be recognized as a legitimate company, our lawyers can help guide you on corporate formation.  This includes registering domain names; drafting website Terms & Conditions and Privacy Policies; selecting a business entity and filing all of the necessary documentation with the state.

Other rules and regulations that must be considered in the adult film industry include obtaining film permits, ensuring compliance with state and local health laws and informing on the industry’s rigid record keeping requirements.

Legal Due Diligence

• Compliance with State and Local Health Laws Governing Adult Films

There are certain health risks that come with participation in the adult entertainment industry and those seeking to be involved must be aware of those risks.  In 2016, the California Occupational Safety and Health Administration Board (OSHA) declined to adopt a proposed standard that would require adult film actors to wear condoms during filming.  This standard would have protected actors from exposure to blood or other infectious materials.  However, OSHA has had a regulation in place since 1993 (amended in 2014) that requires workplaces to use barrier protection from blood borne pathogens, which in the adult entertainment industry, requires the use of condoms (Cal. Code Regs. Tit. 8, § 5193).  It is important to note that these regulations apply only to employees but may also apply to independent contractors in some cases.

Los Angeles County has taken its own measures for health laws governing adult films.  In 2012, the County of Los Angeles passed the Safer Sex in the Adult Film Industry Act, also known as Measure B.  Measure B mandated the use of condoms and other permitted schemes in adult films produced within county lines.  The Act was challenged in Vivid Ent., LLC v. Fielding, where producers and performers in adult films sought injunctive relief against the county ordinance.  744 F.3d 566 (9th Cir. 2014).  Using intermediate scrutiny, the Ninth Circuit upheld Measure B’s condom requirement and other mandates, finding that Measure B was narrowly tailored to serve the governmental interest of decreasing the spread of sexually transmitted diseases in the adult film industry and the general population.

• Obscenity Laws

Both the federal government and State of California have laws that protect the production, distribution, transmission and sale of “obscene” material.  Obscene material includes work displaying or describing sexual conduct.  Federal laws apply to both interstate and international actions involving the U.S., whereas actions taking place only within a single state are subject to the law of that particular state.  Adult film businesses that operate within and outside of California state lines should have a clear understanding of both federal and California obscenity laws and how these laws interact.

• Laws that Protect Children

In 1988, Congress enacted the Child Protection Obscenity Enforcement Act (18 U.S.C § 2251).  The Act prohibits participation by minors in the production and distribution of pornography.

In California, it is a crime to knowingly send, transport, produce, possess or duplicate any child pornography with intent to distribute it.  See California Penal Code Section 311.1.  Additionally, it is illegal in the state of California to knowingly, develop, duplicate, print or exchange any child pornography and to knowingly hire, employ, use, persuade, or coerce a minor to participate in the production of pornography.  Id.  California penal code also provides that it is illegal to knowingly advertise obscene child porn for sale or distribution.  Possession or control of any child pornography can also be a crime.

Conclusion

Whether you are looking to get your start in the adult entertainment industry or have already established your career, it is important to navigate the industry’s complex legal issues with an experienced attorney.  For next steps, contact a member of our team.

Romano Law can provide guidance on​ adult entertainment films in New York, California, and Florida.

Photo by Todd Diemer on Unsplash