Pre-Publication Clearance of Erotic or Sexually Explicit Images

By J. D. Obenberger, Attorney at Law
© MMXIII J. D. Obenberger, All Rights Reserved

Adapted from an article to appear in the August, 2013 edition of Xbiz World

I suspect that any lawyer who serves image producers in the adult Internet long enough will acquire some experience dealing with models and performers (and their lawyers, and sometimes their relatives who claim to be brandishing baseball bats!) demanding a take-down of images - for which they have been fully compensated on the basis of a contractual release that provides rights to the producer and his assignees perpetually. This usually comes when the performers have spent their money and start thinking about mainstream modeling, a career in Hollywood, or law school - about a week after the money ran out. You can count on the proposition that they, and the persons close to them, will examine the circumstances of image creation as though under an electron microscope looking for an opening and will often make outrageously untrue allegations to get the takedown that they want. A smart producer, advised well by an attorney experienced in this area, will engineer a variety of clever and non-obvious protocols designed to establish the producer's right to publish the images he has paid for. But the model herself is not the only potential shark who may circle around the producers and publishers of adult content.

The risk of a lawsuit - or the threat of a lawsuit and a shakedown demand - about the use of photographs increases now in the adult Internet because of the convergence of two factors: first, because the online adult industry has matured and its methods increasingly resemble the practices of mainstream businesses; and second, because economic pressure and hard times generally causes online operators and content producers to consider litigation, more and more, as a source of revenue. Serious mainstream media players have required "pre-publication clearance" for decades. The more that publishers have to lose, the more attention that they pay to it. Certain successful magazines and film studios maintain entire departments devoted to the review of all content, including advertising copy, before its publication. With increased risk of litigation, as revenues decline, it becomes more important for web operators to exert vigilance against the risks that come with a publication business. If they do not, the risk is that they may lose everything that they have worked to build. Don't take anything for granted. Don't assume anything to be true. Publish nothing unless you can demonstrate with documents and other evidence your unqualified right to publish it without offense to the rights of any other person. Require all content producers creating content for your publication to provide you copies of everything you need to eliminate risk; require those producers to warrant its use without offense to the rights of any other person and its ultimate legality; have them promise to defend and indemnify you, but remember that typically they will often be smaller than you are and may not possess assets to make their promises of defense and indemnifiction very meaningful. These practices are among the most significant differences between a true Adult Industry professional and an amateur posing as an adult operator.

When William Randolph Hearst established his publishing empire, when Colonel McCormick established the great Chicago Tribune, their enterprises each necessitated a huge physical footprint, one that included printing presses and huge buildings to house them, offices for dozens of reporters, storage for enormous rolls of newsprint, trucks and drivers for delivery, and in fact such a huge, observable presence that no one would suppose that such an enterprise did not require professional legal advice. In distinction, the growth of online publication businesses has little physical footprint, though web publishers reach an audience that Hearst or McCormick would envy. The publication risks, however, are in fact greater than they were in the Gilded Age, because the law imposes more liability on publishers today than ever before. But because the empire is invisible, it is far easier to overlook the need for legal guidance and navigation. That's a mistake.

A literal but only physical description of a photograph would define it as a two dimensional image depicting reality and captured directly via the use of light. But that description fails to take into account the many legal dimensions that describe a photograph in a practical sense, as a real thing that is created, moves through commerce, and ultimately is communicated to people. The dictionary definition falls short of even hinting at the important attributes of a photograph that go to its ownership, the rights of all persons involved in its creation, and the messages that it may deliver to the people who see it. Each of these attributes carry with it a risk of injury or harm to people, a violation of the criminal law, or another kind violation of the rights of persons. People have gone to prison because of the images that they've published, and indeed, people are in prison as these words are written; tens of millions of dollars have been awarded by courts in compensation to persons whose rights have been violated by publication of images that they have been connected with. 

It is foolhardy to publish images without mandatory, routine consideration of the potential of liability as part of your regularly conducted publication operations. While the issues are often more complicated when you publish images that were acquired from another person, issues remain that can cause you serious harm even when you create the images yourself. No form can substitute from a mature judgment about what risks entail from the publication of an image - you must know what the risks are, how dangerous they are, and you must reach a conclusion about what degree of risk is acceptable to you before you reach a decision to publish. If you do not take time to do this in a regular and ongoing basis, the chances increase that you will be taken by surprise when a catastrophic event occurs due to your publication activities. Don't ever publish anything that you can't defend. 

The purpose of this article is to introduce you to an organized approach to the issues by identifying those issues and risks which are most likely to create problems for an adult Internet publisher. I want to emphasize that it is not enough, though, to identify the risks; you must be ever-vigilant to substantially reduce those risks by acquiring (and maintaining, in an easy-to-locate system) written and other evidence that establishes your unqualified right to publish the images without offense to the rights of any other person. For assistance in doing that, you should go to a lawyer experienced in image commerce and the operation of the adult Internet, especially because it possesses some unique or different risks than those that apply to general media publication. 

The time to get legal advice that will be of the greatest help is before you create any images: by consultation, you can develop forms, protocols, and habits that will actually prevent serious problems. But if you have not done that, do so when you first get a threatening letter about your content; it sometimes, in fact often, is possible to dig you out of a bad situation. But your chances of a successful outcome diminish as you may attempt to dig yourself out. In the absence of legal training, your fight or flee response, your gushing effusions of good intent, and other such circumstances are as likely to irretrievably bury you in the pit as they are to extract you; without legal training and experience, you really may not know the difference between the legally exculpatory and the legally incriminating, and moreover, what you say, as an adverse party, is quite likely to be evidence admissible by your adversary in court. If for that reason, and no other, it is essential that you use an attorney whenever there is a gun pointed at your head. 

Adult images often have at least eight legal dimensions, and a minimally competent publisher of erotic or sexually explicit images will consider each, in turn, before publishing an image or authorizing its publication. Certain websites may not implicate Section 2257 or Section 2257A, for example sites that feature no more than bared breasts or escort advertising sites which restrict images so that those statutes are not triggered. Dating Sites and social networking sites may often take advantage of certain immunities or definitions contained in federal statutes to protect themselves. It is self-evident that a checklist must be tailored to the kind of site and the kind of images in issue, but in general, at least systemically, these issues should be considered - and decisions must be made in those areas, about exemption and authorship and legal responsibility - with an attorney, and site documents drafted and employed with an attorney in order to build your version of Fort Apache and to defend against its attackers from your parapets. 

There is, in every human enterprise, a tendency to simplify and compact. Producers of content are often convinced that they can do what they want with any image they create because they own Copyright in the material, but that's just not true. Copyright is ownership, and "ownership" of property is nothing more than the right to prevent others from using it and the right to recover if they unlawfully do so. Consider that if you owned a parcel of land, it would not necessarily give you the freedom to open a waste disposal plant or to erect a radio tower; these things depend on zoning and sometimes on licensing. My point is that ownership of copyright is only one element of the analysis of whether you may use content as  you intend; the lawfulness of your proposed use must extend past the fact of your ownership to a particularized assessment of legality that considers all issues having bearing on the contemplated use. The following factors are your point of departure in that analysis: 

¨   1. Copyright. There are both obvious and non-obvious aspects of Copyright. I suppose that anyone reading these words understands that he needs ownership of the image or permission of the owner to publish a copyright. It may be less obvious to some that the unscripted performance of your performer possesses a copyright that, in the absence of certain grants, belongs to the performer himself or herself, and that your publication of their performance may open you to unforeseen liability. A great many performer releases in circulation and use were adapted from still photography releases and do not mention copyright at all. It may not be obvious that a web designer or developer, absent certain grants, possesses copyright in what he has created for you, and that absent certain language, he is free to use what you've paid for to recycle it for the use of another person who may be a direct competitor. Issues may arise if you terminate dealings with your designer and ask another developer to modify it, creating a "derivative work". Without a grant of rights to do so, you may have backed yourself into an untenable position. Think about using a "Work for Hire" agreement, having each of your contract workers (including programmers!) execute it BEFORE the work is accomplished. There is a split in the courts about the effectiveness of subsequent agreements, but afterwards may be too late for legal effect. If you have not done by such an agreement, your only option may be to buy the material afterwards; its success may cause the creator to hold you up for more money than you earlier expected or agreed. This, too, is one of those dangerous issues that can haunt you when you "fire" an independent contractor who creates material. You must secure all rights and be able to prove that with written documents. There is little that is more potentially dangerous than an oral, nonexclusive license. You need to learn about the recordation of exclusive licenses and assignment. Are copyrighted works present in your images and video? Most professionals know about the implications of TV, radio, and recorded music that may appear visually or in your soundtrack, but have you considered the posters and works of art that may decorate your set? 

¨   2. Trademark. The best practice is to exclude any and all trademarks from your imagery, despite the reality that this is time-consuming and creates an "unreal" appearance to your images. Your audience, for example, knows that tennis shoes, certain brands of shirts, and purses, normally carry a trademark and on some level will be affected by their absence - and your choice is to remove/cover the trademark or to exclude it from the frame. Be aware that "design patents" and trademarks exist for the form of commercial objects, such as the distinctive shape of a glass Coke® bottle. This may create very special issues regarding the use of motor vehicles, which are, at least to my knowledge, only theoretical at this point. But the potential for trouble exits.  Moreover, the use of a trademark as a generic description may offend the holder's rights. The chief dangers in this area are the dilution of a trademark or its tarnishment - essentially a claim that you have injured a mark by associating it with pornography. A whole category of cases emerges from litigation between trademark holders and pornographers who've used their marks; such litigation emerging from the Mutual of Omaha logo and from the use of Dallas Cowboy cheerleader costumes did not end well for the people on our side. And it is not enough to cry "Parody" if there is no real parody, just an exploitation or appropriation of a trademark belonging to another. 

¨   3. Right of Publicity. I'm not sure exactly why, but this right gets confused with copyright on a frequent basis. It's distinct: this is the exclusive right that persons possess to use their own appearance for commercial purposes, and it is the traditional function of releases to secure permission for such commercial use. (As I mentioned above, copyright in a performance or the dialog may belong the performer and needs to be secured for video content.) One respected IP website parses the state of the law: according to it, nineteen states have enacted statutes protecting the Right of Publicity and twenty-eight states recognize it to one extent or another through judicial decisions. One additional state, Arizona, has enacted a statute protecting the right with respect to both living and dead military service members. In general, the states which recognize the right by statute require a written release for any commercial use - and it goes beyond "best practice" so say that a written release must be universally used in this arena. The DMCA does not address this right whatsoever and pretended use of the DMCA concerning Publicity claims is inappropriate. While little or no recent case law seems to award damages arising from the breach of an alleged Publicity right associated with buildings, and very little concerning personal property such as cars, the established policy of Hollywood and Television is to secure such rights in writing and to pay compensation for them. It is probably prudent for the adult producer to do so, especially with respect to identifiable locations. It should be considered that, if you do not secure from your performers the exclusive right to litigate their respective rights to Privacy, a pirated work infringes their own rights, too, and gives each of them a right to participate in the infringement action in a way that may complicate your efforts to settle the case. More resources on this topic may be found at . 47 USC Section 230(c) is beyond the scope of this article, and this is an area that operators of sites with user-submitted content particularly need to monitor. 

¨   4. Public Disclosure of Private Facts. Every producer of true "reality" material needs to be aware that it is a tort to make certain disclosures about persons who may be depicted, especially in edgy material. I am thinking of beach video, Mardi Gras, and true voyeur content (which itself creates an incredible array of dangerous legal issues). In standard porn production, release language should contain a clause addressing this and such matters as defamation, leaving the producer free to make disclosure of both true and untrue information about the performers. The potential exists that a performer may later claim confusion about what line separated the "pre-interview" from the video production, and this needs to be treated with a protocol that eliminates all doubt about what the performer had to say when she knew that the commercial production was being made. There is very serious potential of risk here in user-submitted content in this area that arises under state law. 47 USC Section 230(c) is beyond the scope of this article, and this is an area that operators of sites with user-submitted content particularly need to monitor. 

¨   5. Defamation. Defamation is a product of state law, too. You must take care to assure that your work - or that which you acquire or publish - does not defame persons. You may enjoy an immunity as the publisher of user-submitted content. 47 USC Section 230(c) is beyond the scope of this article, and this is an area that operators of sites with user-submitted content particularly need to monitor.  

¨   6. Obscenity. You must review your content to make a judgment about whether its production, distribution, or sale violates federal of state obscenity statutes. The definition of obscenity is beyond the scope of this article, but you will find the resources located at to be a handy reference. 

¨   7. 2257. The labyrinth that is Section 2257 and Section 2257A is way beyond the scope of this article, but it's sufficient to say that, if your work is within the scope of either, you must comply at the risk of five years in prison. Pay special attention to images that depict nothing more that the lascivious display of the genitals or pubic area without more, and simulations, made before the effective date of the Adam Walsh Act, July 26, 2006 -are all legal to publish without 2257 compliance - but, you need to be able to prove the date of creation to use these images without losing sleep! You will find a wide range of resources on this topic at 

¨   8. Moral Rights.  This doctrine, dealing with the rights of authors, has long been a critical issue in France, Germany, the Continental countries, and the UK and was not recognized here prior to the adoption of the Berne Convention. At least two states, California and New York, have enacted statutes which address authors' rights in a manner analogous to Moral Rights as understood in Europe. This area is particularly confusing because some nations do not permit an author to waive any rights he possesses under this doctrine. Accordingly, should attribution of authorship or modification of works have the potential of causing conflict, a three-tiered approach of dealing with Moral Rights should be attempted by anyone acquiring rights. It is a mistake to ignore the doctrine.

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This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is