Adult Entertainment Films
Is Pornography 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.
The question of whether pornography is copyrightable was addressed in 1979 in the landmark U.S. Court of Appeals case, Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979).
In Mitchell Bros., 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 Court reasoned that not granting copyright protection for obscene works like pornography would “frustrate the congressional purpose underlying an all-inclusive copyright statute.” The Court further noted that “[r]equiring authors of controversial, unpopular, or new material to go through judicial proceedings to validate the content of their writings is antithetical to the aim of copyrights. If the copyright holder cannot obtain financial protection for his work because of actual or possible judicial objections to the subject matter, the pro-creativity purpose of the copyright laws will be undercut.”
The holding in Mitchell Bros. has since been reaffirmed by other 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 New York, Connecticut and Vermont, the U.S. Court of Appeals for the Second Circuit has not addressed the issue of pornography’s copyrightability head on. Still, it is likely that it will follow the rulings of its sister appellate courts by granting copyright protection for adult content.
What is Obscene?
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. 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.
In 1973, the Supreme Court ruled that obscene material is not entitled to First Amendment protection and may be regulated by the states. Miller v. California, 413 U.S. 15 (1973). Under Miller, state statutes must be limited only to those works that depict or describe patently offensive “hard core” sexual conduct, appealing solely to the prurient interest. “Prurient” means “having or encouraging an excessive interest in sexual matters.”
State law that seeks to regulate obscene material must also specifically define the prohibited conduct. Additionally, if the material has serious literary, artistic, political, or scientific value, then it may be protected under the First Amendment. This limitation permits most sexually explicit materials, such as pornographic magazines, books, and movies, to be classified as not legally obscene, and worthy of First Amendment protection.
While the restrictions contained in Miller may seem advantageous for adult film companies, there is a catch. In determining whether any given pornographic work depicts or describes patently offensive “hard core” sexual conduct and appeals solely to the prurient interest, courts apply “contemporary community standards.” Therefore, even though an adult film company may distribute materials to various states, a state prosecution for violation of its obscenity laws will impose the contemporary community standards of that state.
For example, a California company based in a more liberal area could find its work being assessed by the contemporary community standards of more conservative Indiana residents. Even in the Internet age, there is no national standard used in obscenity prosecutions. It should be noted that the Supreme Court, in the case of Pope v. Illinois, 481 U.S. 497 (1987), stated that contemporary community standards should not apply in assessing whether a work has serious literary, artistic, political, or scientific value; instead, this prong should be assessed based on a national “reasonable person” perspective.
Currently, there are only two types of explicit commercial pornography that may receive First Amendment protection. The first is “mere nudity.” The second is “soft-core” pornography in which the sexual act and orgasm 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 under Miller.
Laws that Protect Children
New York v. Ferber
The Supreme Court held in New York v Ferber, 458 U.S. 747 (1982), that states are entitled to greater leeway in the regulation of pornographic depictions of children. In Ferber, the defendant owner of a New York City bookstore sold two films to an under-cover police officer that depicted young males masturbating. Defendant was indicted under New York Penal Law (“NYPL”) Section 263.10, for “promoting an obscene sexual performance of a child,” and Section 263.15, for “promoting a sexual performance by a child.” The New York Court of Appeals held that Section 236.15 was a violation of the First Amendment. However, the Supreme Court of the United States disagreed.
The Court expressed that states have a clear interest in safeguarding the well-being of minors. The Court noted that virtually all states have passed some type of legislation combating the use of children in pornography. Furthermore, the Court acknowledged that that the use of children as subjects of pornographic material has harmful effects on all aspects of a child’s health, and therefore legislation preventing this activity is not a violation of any First Amendment right.
The Court determined that the production and distribution of photos and films depicting child pornography is intrinsically related to the sexual abuse of children in two ways. First, by producing these materials, there is a permanent record of the child in these depictions, and the circulation of the videos and photos further increases the harm to the child. Second, the exploitation of children in this industry will continue and grow if distribution of the product is not halted.
The Court ruled that “[t]he Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children.” The Court held that Miller is not a satisfactory solution to the child pornography problem because it is irrelevant to an abused child whether the material has literary, artistic, political or social value. Additionally, a sexually explicit depiction does not have to be patently offensive to constitute exploitation of a child. The Court reiterated the states’ interest to protect the welfare of children engaged in these kinds of productions, and held that these actions cannot warrant First Amendment protection.
The Court continued its analysis by acknowledging that there are, of course, limits to regulating conduct. The Court required that state prohibitions be limited to works that visually depict sexual conduct by children below a specified age. The category of sexual conduct proscribed must also be suitably limited and described.
In response to Ferber, Congress enacted the Child Protection Obscenity Enforcement Act of 1988. This act essentially bans any child action in the production or distribution of child pornography and reinforces what is stated in New York’s legislation. (See 18 U.S.C.A. § 2251).
Example: NYPL Article 263 – Sexual Performance of a Child
The New York statute regulating child pornography is found in NYPL Article 263. Under Section 263.05, a person is guilty of using a child in a sexual performance if he or she knowingly employs, authorizes or induces a child under 17 years old to engage in a sexual performance. The statute also includes parents and legal guardians who consent to this participation. Under Section 263.20, a defendant may assert as a defense that he or she reasonably believed, in good faith, that the child was of appropriate age.
Under Section 263.15 of the NYPL, a person is guilty of promoting a sexual performance by a child if he or she knowingly produces, directs or promotes any performance which includes sexual conduct by a child under 17 years of age. This is a class D felony. As defined in the NYPL, to “promote” means to “procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise or to offer or agree to do the same.” N.Y. Penal Law § 263.00.
NYPL Section 236.25 designates the permissible sources of proof for the age of a child. It specifies that a court or jury may make the determination based on any of the following: “personal inspection of the child; inspection of the photograph or motion picture which constituted the sexual performance; oral testimony by a witness to the sexual performance as to the age of the child based upon the child’s appearance; expert medical testimony based upon the appearance of the child in the sexual performance; and any other method authorized by any applicable provision of law or by the rules of evidence at common law.”
Record Keeping Requirements under Federal Law
To prevent minors from appearing in sexually explicit content, Congress passed the Child Protection and Obscenity Enforcement Act (the “Act”). 18 U.S.C. § 2257. The Act places strict requirements on those that participate in and produce pornographic material. The Act requires any producer involved in the creation or commercial distribution of images and works containing sexually explicit conduct to maintain records of persons that appear or perform in them.
For producers, this means creating and maintaining the following records: (A) the legal name of each performer obtained by the examination of an identification document; (B) the date of birth of each performer obtained by the examination of an identification document; and (C) any name, other than the performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name or professional name. Additionally, for any content produced after May 26, 1992, those names must be indexed by the title or identifying number of the book, magazine, film, videotape or other matter. Websites are included in this. Moreover, producers must keep copies of all the identification documents that have been examined, separated from all other records.
For performers, the Act requires that you maintain the following documents: (A) two forms of identification issued by a state or the federal government showing your legal name, birth date and photograph; and (B) a list of all your stage names, professional names, nicknames or aliases that you have used in the adult entertainment business throughout your career.
While these requirements may seem overwhelming, the ones listed here only scratch the surface of the recording keeping requirements imposed by the Act. It is strongly advised that you consult legal counsel for additional information and advice regarding these requirements.
Examples of State and Local Health Laws Governing Adult Film
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. In 2014, Vivid Entertainment, an adult film production giant, challenged the constitutionality of this law. The U.S. Court of Appeals for the Ninth Circuit ruled that the condom requirement is permissible as the condom requirement only has a minor effect on expression and is tailored to achieve the interests of the counties in reducing the rate of sexually transmitted diseases. Vivid Entertainment, LLC v Fielding, 774 F.3d 566 (9th Cir. 2014).
California has other regulations and recommendations in place to assist in the safe production of adult film. California Occupational Safety and Health Administration’s (“OSHA”) Bloodborne Pathogens (“BBP”) standard requires employers to protect employees through universal precautions such as providing and requiring employees to use protective barriers such as condoms and gloves. Additionally, the BBP standard contains other requirements as safety precautions in the workplace. Some requirements include proper training annually on bloodborne pathogens that includes what an employee can do if exposed to blood or fluids, confidentiality of medical examinations and records for employees, blood testing, and medical treatment.
Although it may be beneficial to follow the California OSHA requirements, it is not necessary if a worker is considered an independent contractor rather than an employee. California’s OSHA and the Division of Labor Standards Enforcement start with the presumption that a worker is an employee. There are many factors to consider in determining if someone is an independent contractor or employee, and no single factor is determinative. The most important factors are the producer’s control over the actor and payment.
For your protection, 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.
Can Pornography be Recorded and Produced in New York State?
Under the NYPL, criminal liability attaches to the promotion, production, filming and distribution of obscene materials. NYPL Article 235 is the key statute to consider if you are thinking about recording and producing pornography in New York State.
NYPL Section 235.00 defines “obscene” as follows: “[a]ny material or performance is ‘obscene’ if (a) the average person, applying contemporary community standards, would find that considered as a whole, its predominant appeal is to the prurient interest in sex, and (b) it depicts or describes in a patently offensive manner, actual or simulated: sexual intercourse, criminal sexual act, sexual bestiality, masturbation, sadism, masochism, excretion or lewd exhibition of the genitals, and (c) considered as a whole, it lacks serious literary, artistic, political, and scientific value. Predominant appeal shall be judged with reference to ordinary adults unless it appears from the character of the material or the circumstances of its dissemination to be designed for children or other specially susceptible audience.”
Individuals found guilty of obscenity in New York may be subject to the following sections of the NYPL:
- 235.05 – Obscenity in the third degree (Class A misdemeanor) – An individual may be sentenced to a maximum of 1 year in jail or 3 years of probation. In addition, a fine of up to $1,000 or twice the amount of the defendant’s gain from the crime may be imposed.
- 235.06 – Obscenity in the second degree (Class E felony) – An individual may be sentenced up to 4 years of probation. In addition, the NYPL authorizes the imposition of a fine not exceeding the higher of $5,000 or double the amount of the defendant’s gain from commission of the crime.
- 235.07 – Obscenity in the first degree (Class D felony): An individual may be sentenced up to 7 years of probation. In addition, the Penal Law authorizes the imposition of a fine not exceeding the higher of $5,000 or double the amount of the defendant’s gain from commission of the crime.
As a result of the possible criminal liability attached to the creation of pornographic material in New York, it is highly recommended that you speak with a qualified attorney before recording or producing sexually explicit content.
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