Adult Entertainment Films in Florida

Can porn be filmed in Florida?

Under Florida statute, criminal liability attaches to the promotion, production, filming, performance and distribution of obscene materials.  FL Statute Section 847.001 defines “obscene” as: “the status of material which: (a) the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; (b) depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and (c) taken as a whole, lacks serious literary, artistic, political, or scientific value.”

Fla. Stat. § 796.07 is also a key consideration for those involved in the adult entertainment industry.  The statute defines “prostitution” as the giving or receiving of the body for sexual activity for hire, but excludes sexual activity between spouses.

Pornographic films could be considered obscene and may be considered prostitution, and therefore may violate these statutes.  However, it is unlikely that prosecutors would be successful prosecuting under these statutes if they even decided to prosecute in the first place.  There have been few attempts at prosecuting pornography under either the obscenity or prostitution statutes, as law enforcement officials have stated this is an extremely difficult area to prosecute due to the many constitutional protections.

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 copyright and trademarks can provide legal protections if your creative works are being infringed upon.

• Is Porn Subject to Copyright Protection?

Under federal law, certain works can receive copyright protection.  Importantly, the U.S. Copyright Act of 1976 (the “Copyright Act”) protects motion picture works and photographic works, including pornographic material.  The text of the Copyright Act does provide an exception for obscene works.  As such, adult materials can be eligible for copyright protection as long as they do not violate other U.S. laws, such as the Child Pornography Prevention Act of 1996.

In Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5^th Cir. 1979), the Court held that the Copyright Act did not contain any bar, explicit or otherwise, against copyrighting obscene materials, and that an alleged infringer could not assert obscenity as a defense to an infringement claim.

The holding in Mitchell Bros. has since been reaffirmed by other Circuits of the U.S. Courts of Appeals – notably, the Seventh and Ninth Circuits.  As the federal appellate court responsible for appeals arising from the U.S. District Courts in Florida, the U.S. Court of Appeals for the Eleventh Circuit has not addressed the issue of pornography’s copyrightability head on.

• 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.

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 of Service 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.

Contracts

The adult film industry has unique legal issues as 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 agreements, 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 prioritize your goals and explain how contract terms may affect your personal, legal and business interests.  Lawyers can also help ensure that businesses are executing enforceable contracts that comply with laws and public policy.

Legal Due Diligence

• Compliance with State and Local Health Laws Governing Adult Films

For those interested in working in the adult film industry, it is important to be aware of the potential health risks that come along with it.  Lack of proper precautions can lead to the spread of sexually transmitted infections.  Health regulations in the adult film industry vary from state to state and even from county to county.  For example, in 2012, Los Angeles County enacted the “Safer Sex in the Adult Film Industry Act,” commonly known as “Measure B.”  This law requires the use of condoms in certain contexts.

Florida, on the other hand, has no such laws in place.  In 2018, the Florida House of Representatives declared pornography a public health risk.  The Florida Senate attempted to pass legislation on the same, but the bill did not pass.

Regardless of the lack of state and local health laws governing adult film in Florida, it is advised that you consult legal counsel for additional information and advice, regarding complying with all the safety and health regulations required by the applicable statutes for safe film production.

• Obscenity Laws

Every state in the U.S., as well as the federal government, has laws controlling the production, distribution, transmission and sale of “obscene” material.  Obscene material is generally understood to mean works that depict or describe sexual conduct.  Federal obscenity laws apply to activity occurring between states and between the U.S. and a foreign country.  Intrastate activities (activity occurring within the boundaries of a single state) are, for the most part, governed by the law of that state. Because almost all adult film distribution occurs via the Internet, both federal and state laws are likely to apply.  Therefore, anyone interested in forming and operating an adult film business must be aware of the obscenity laws in the states in which they operate, as well as federal laws if the operations and/or businesses are done across state lines.

Currently, there are only two types of explicit commercial pornography that may receive First Amendment and free speech protection.  The first is “mere nudity.”  The second is “soft-core” pornography, in which the sexual acts are merely implied to happen rather than explicitly shown.  First Amendment case law does allow reasonable time, place and manner restrictions to be imposed by states on materials that, while not legally obscene, are still considered indecent.  On the other hand, obscene materials are always subject to such restrictions because they do not receive constitutional protection.

Conclusion

As a result of the possible criminal liability attached to the creation of pornographic material in Florida, it is highly recommended that you speak with a qualified adult entertainment lawyer before recording or producing sexually explicit content.

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

Photo by Benjamin Suter on Unsplash