The Ten Important Legal Questions that Webmasters and Content Providers Asked Most in 2001
Seven Months on the Road with the Webmasters:
The Ten Important Legal Questions that Webmasters and Content Providers Asked Most in 2001.
By Attorney J. D. Obenberger
Written Specially for YNOTnews and the Members of the YNOT Community. NOTE: Some of the answers provided in this article have been profoundly affected by a series of amendments to Section 2257 and its implementing regulations. The guidance set out below concerning Section 2257 compliance SHOULD NOT be relied upon, and the information is republished now for historical research.
During the year 2001, I’ve traveled the length and breadth of America and beyond as the keynote legal speaker for the Cybererotica sponsored Adult Webmaster Events in Chicago, Los Angeles, Atlanta, Portland, and Denver, twice at the AVN Online Internext Show in Las Vegas, at Cybernet Expo in Miami, and at the Great Lakes Webmaster Conference in Windsor, Ontario. It has really been a rare privilege and honor for any lawyer to speak before hundreds of webmasters, content providers, and the businessmen and women providing support to the adult Internet in every region of the USA and in Canada.
I have come to know these people in a special way, the interesting, industrious, creative, courageous people who shape the sexual fantasies of two nations and much of the world. I encountered some of the brightest lights in this industry, persons who would be impressive in any setting, and I found them both in the audiences and next to me on the dais; I discovered among them some amazing people and saw in their midst some of the most brilliant personal spectrums that I have ever seen, powerful, bold, and inspiring.
The adult webmasters stand on the forward edge of the battle area in the perpetual struggle for personal freedom, and they have my admiration and respect as a result. When Fantasyman and I first spoke about the AWE speaking tour that started me on this journey, I had little idea of what the experience would become. It rapidly became much more than just speaking about the important concepts and principles of law that apply to adult webmasters for an hour-and-a-half and taking questions. Though I spent time in the Law Library before the trips to learn about such matters as whether Oregon and Colorado had constitutionally valid obscenity statutes before my trips there, the truth is that I learned more of enduring importance from and about the attendees than I did from that research, and I am left with the strong conviction that from them I acquired far more than I imparted.
At each of the AWE events, I spoke for an hour and told the audience that I would address any topic it cared to suggest so long as I felt that it was within my competence. I reserved a half hour for audience questions, and we never ran out of those in any city. Though I never actually wrote any of the questions down, and though this article may therefore imperfectly render the actual questions asked from the floor and in the adjacent halls and during the parties, the following is a sense of the questions I was most frequently asked during this odyssey, and of the best answers I could provide as I walked in the midst of the men and women who define and meet the sexual fantasies of the contemporary world.
1. If I include some text on my site, will that help me avoid an obscenity prosecution?
Maybe, but not if it’s only a mere pretext for obscenity! A justice of the United States Supreme Court once wrote that a quotation from Voltaire on the flyleaf of an otherwise obscene work will not render it nonobscene.
No work may be determined obscene if it has serious literary, artistic, or scientific value as viewed by a reasonable person, and when taken as a whole. It does not need to be high art to be nonobscene, it just needs to have a serious aim and result that has some reasonable literary or artistic or scientific value. Mad Magazine has enough serious literary value that, even if it included very graphic sexual material, it would be difficult to imagine how any court could rationally find it obscene. Especially with the development of hyperlinks, it is not painful or destructive to the eroticism of the sexual imagery on contemporary adult sites to include and integrate such linked text as creates a work with serious artistic or literary or scientific value when considered as a whole. The jury will have to consider all of its contents, including the linked pages.
You don’t need a weatherman to know which way the wind blows. Now is the time to add content or to modify it to assure that your site has a serious expressive purpose. It takes only imagination and effort to do so.
2. What’s obscene? Is Gay Sex Obscene? Anal?
A comprehensive discussion of obscenity is outside the scope or space limitations of this article, and so I will not attempt to summarize the entire body of law. All of that begins with Miller v. California.
The first amendment law of obscenity is a limitation on the power of the state and federal government to ban, proscribe, and criminalize the possession and distribution of presumptively protected expressive materials. In that sense, the First Amendment is a limitation on the powers of democracy, because it elevates expressive freedom above the wishes of a democratically elected majority of Congress or of state legislatures.
If a work, judged as a whole, has serious artistic, literary or scientific value, it cannot be criminalized.
Even should it have no such serious value, unless a work appeals to a prurient interest in sex or other bodily functions, it cannot be obscene. "Prurient" means morbid or shameful. "Morbid", in turn, means diseased. In Brockett v. Spokane Arcade, found also on this site, the United States Supreme Court suggested that material that appeals to a healthy interest in sexuality is not prurient, even if graphic.
The suggestion here is that the activities that society takes for granted as being part and parcel of what adult men and women do with one another to please each other sexually should not be regarded as obscene. The further the material deviates from this societal image or icon, the more dangerous the sexual content is because there is a greater likelihood that the finder of fact will find it prurient.
If the work appeals to a prurient interest in sex, it becomes mandatory that it have serious value, at the risk of being found obscene. Serious scientific purpose can be found in material that is used to treat or deal with psychosexual problems. A successful defense to an obscenity charge based on this avenue will require a scientific expert who finds the material useful for that purpose.
The law of obscenity is as unlike well posted speed limits as possible. There is no list of particular acts which, if depicted, will be obscene. A determination of obscenity depends on context, the work as a whole. It depends on prurience. It depends on social value. And of course, it depends on contemporary community values, a matter now before the Supreme Court in a somewhat different context, the "harmful to minors" area.
If you can’t live without firm and unchanging rules that clearly tell you what you can and cannot do, you should become a structural engineer. So long as you swim in the sea inhabited by adult webmasters, you will have to learn to accept the possibility of risk.
The intelligent webmaster and content provider, especially in this era, will minimize that risk by carefully assessing content and taking all reasonable steps to minimize prurience and to maximize legitimate serious purpose.
3. Do I have to be concerned with state and local laws?
You bet. Most of the sates have obscenity statutes and statutes relating to the protection of minors from sexual exploitation in pornography and sexual abuse. While the federal constitution limits the extent to which a state may proscribe the manufacture and distribution of obscenity, not all of them have legislated to the extent of their powers. Despite the holding in California’s People v. Freeman, some prosecutors may attempt to prosecute the production of hard core materials as prostitution, and this is a factor that should be considered. Some of the states have criminal forfeiture statutes under which obscenity is a predicate offense to trigger the statute. Some have statutes related to the depiction of criminal conduct. Many of them have statutes designed to protect minors from exposure to pornography. An increasing number of states have statues or case law decisions affecting voyeuristic content. The entire law of privacy, dealing with such things as commercial exploitation of the images of models and celebrities, and of portraying them in a false light, is a creature of state law. Many states have statutes relating to consumer fraud and deceptive business practices, and this may have bearing on billing practices, advertising, and terms and conditions.
As we have seen in the Voyeurdorm case, now on appeal in the federal courts, local zoning authorities argue that they have the power to regulate the location of online expressive businesses as part of their power to reasonably regulate the time, place, and manner of erotic expression. [Since the time that this article was written, the District Court decision in Voyeurdorm was reversed by the US Court of Appeals on a fairly narrow basis, that the ordinance did not apply to the Voyeurdorm studio apartment because it was not a place where the public was entertained. A good result, but not a sweeping pronouncement of constitutional protection, either.] The key here is whether the so-called adverse secondary effects of adult entertainment often associated in some minds with adult book stores and exotic dance cabarets can legitimately be presumed to exist in the absence of exterior advertising or foot traffic, in a purely online business. It is my strong conviction that there are no such adverse secondary effects that can act to justify adult use zoning for purely online businesses, and the suggestion that they do arise, or that it is within the power of local zoning officials to speculate that they may arise, is tantamount to the assertion that the content itself is tainted and dangerous. I don’t think that even the conservative judiciary now wearing black robes on the federal bench is prepared in the main to accept that proposition.
And don’t forget about local business licenses.
4. How many forms of ID should I require before a shoot? Is it OK to take a picture of the ID?
If it’s the right kind of ID, you only need one. That means a government-issued ID with the name, date of birth, and photograph of the performer or model. If the "Official" ID does not contain a photograph, you will need a second form of ID that does bear a photo. The conventional practice in this industry is to require two photo ID’s, at least one of which is of the type mandated by law, with a photograph, and that is a good policy.
You need a legible copy of the ID in your 2257 records. A photocopy is perfect because it can’t get zapped or lost by a film processor and it can be easily stored with the release and 2257 data acquisition form, from the time of creation.. The problem with digital or film images of the ID is that they are subject to more problems along the way which may result in their loss. Videotape is just hard to file in a binder, and harder to scan and make a digital file of.
5. How long do I have to keep 2257 Records?
You have to maintain 2257 records as long as you or your organization exists and for five years thereafter, permitting them to be examined by the Attorney General of the United States or his or her designee at all reasonable times.
6. Can I hire a lawyer or somebody else to be my records custodian on the 2257 notice?
There’s no reason why you can’t hire someone whose job it is to maintain records. (But you might want to tell him or her about the notice requirement when you hire him or her for the job!) If you can find a lawyer who doesn’t mind the prospect of having anybody John Ashcroft chooses to designate coming into his law office and camping out as they go through your 2257 records at any reasonable time, go right ahead. I suspect that the lawyer’s other clients might have some apprehension about file confidentiality if it became a regular practice. Good luck finding such a lawyer. The regulations state that the records must be maintained at the producer’s place of business, and I doubt that a location which is kept just for keeping such records is likely to comply with the letter or spirit of the regulation. Keep your records where you do business and this will not become an issue.
7. I’m planning to shoot overseas content. Do I have to comply with 2257?
Arguably, an American who shoots overseas or who contracts for others to do the shoot may be subject to the strictures of that statute. My strong feeling is that no content should be used by an American webmaster unless it is 2257 compliant, regardless of where or when the images were made. Because the penalty for distribution of lewd images depicting minors is fifteen years imprisonment for each image, the prudent webmaster will insist on 2257 compliance and deal only with reputable and established content producers, especially in the case of foreign content. I feel the same way with respect to live feeds.
8. What can I do to protect my images from being stolen?
Register them with the Copyright Office within ninety days of first publication. A major factor contributing to a mood of piracy is that the owners of the image have not thought enough of their images to protect them. Once images are so registered in a timely fashion, the prevailing owner in an infringement suit can recover 1) his reasonable attorney’s fees and 2) presumed statutory damages for infringement without expert testimony as to the economic value of the infringement. This goes a long way to induce an attorney to take the case without very a substantial up-front fee and it encourages him to pursue it.
9. If content exclusively licensed to me gets ripped off, can I bring an infringement suit? Do I need the photographer?
This will depend on the terms of the license. A smart webmaster will seek a license term that grants him the right to bring an action for infringement on his exclusively licensed content so that he can proceed on his own without the active participation of the photographer, in the name of the photographer, if necessary.
What may surprise most readers most is that the model herself may have a significant claim and it may be worth a substantial amount. Remember, the terms of most model releases extend only to the benefit of the photographer and those who use the product under his or her license. That means that an image pirate invades the privacy of the model and commercially exploits her without her permission by using the images, and he can be sued by the model for this conduct unless her right to do so has been surrendered in favor of the photographer in the model release.
10. How do I hire a lawyer to help me? How do I find somebody close to home who knows the law of this business?
Well, my office stands ready to help . . .
This business presents above-average risks of legal complication, and it is foolhardy to proceed in the adult internet without competent legal guidance and navigation. With respect to obscenity and the federal law governing the creation of erotic images and the associated record keeping, and with respect to image piracy, it is a body of law that, in the main, is national in scope with local wrinkles. The specialized legal knowledge of statutes and cases used in this field is outside the knowledge and experience of most local general legal practicioners. Accordingly, expertise means more to you than geography. An essential part of your team is a First Amendment and adult entertainment lawyer. The single most reliable place to find lawyers with this knowledge is in the membership roster of The First Amendment Lawyer’s Association, http://www.fala.org, though not all of its members will take Internet cases. Though all of the boards provide attorney listings, the FALA membership list, in my opinion, is, by far, the best and most reliable place to look for a First Amendment lawyer.
Copyright 2001-2011 J. D. Obenberger. All rights reserved.
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 firstname.lastname@example.org.
J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.