CHICAGO, IL – Responding to the confusion over ID requirements under the new 2257 regulations, attorney J.D. Obenberger of xxxlaw.net told YNOT that most of the confusion and panic over identification copy storage requirements in regard to foreign content or foreign models is a result of an incomplete examination of the regulations and statutes.”There probably are lawyers smarter than me and apparently one or more of them hasn’t done their homework,” said Obenberger.
Despite reports that American companies will be unable to easily shoot content overseas, and that foreign-issued passports will not be acceptable for 2257 compliance if the producer is American and the model foreign, Obenberger showed YNOT why he believes these claims are unfounded.
The confusion seems to stem from two similar but different terms: “identification document” and “picture identification card.” The regulations require that the Custodian keep an “identification document” to show where the information about the model’s age was collected. If this “identification document” does not contain a picture of the model, the Custodian of Records will then also have to provide a “picture identification card.”
This is explained in the regulations, section 75.2(a)(1): “For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card.”
In other words, if the Custodian has a valid “identification document” that contains a picture of the model then a “picture identification card” as defined in the new regulations is not necessary.
But what defines a valid “identification document”? Obenberger said for this definition we have to go back to the actual 2257 law written by Congress.
§2257(h)(2) contains the following: “‘identification document’ has the meaning given that term in section 1028(d) of this title.”
So the term “identification document” is defined not in the new regulations and not in the 2257 law itself, but in 18 U.S.C. § 1028(d), Obenberger explained. It reads:
“The term ‘identification document’ means a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a foreign government, an international governmental or an international quasi-governmental organization which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.”
Moving back to the new regulations, Obenberger explained the instructions show that if an identification document does not have a picture on it – for example if the producer can only produce a copy of a birth certificate, which would not contain a picture – only then would a “picture identification card” be required.
The definition of a “picture identification card” is provided in the new regulations, section 75.1(b):
“Picture identification card means a document issued by the United States, a State government or a political subdivision thereof, or a United States territory, that bears the photograph and the name of the individual identified, and provides sufficient specific information that it can be accessed from the issuing authority, such as a passport, Permanent Resident Card (commonly known as a “Green Card”), or other employment authorization document issued by the United States, a driver’s license issued by a State or the District of Columbia, or another form of identification issued by a State or the District of Columbia; or, a foreign government-issued equivalent of any of the documents listed above when both the person who is the subject of the picture identification card and the producer maintaining the required records are located outside the United States.”
But this definition of “picture identification card,” according to Obsnberger, only comes into play when a Custodian does not have something that fits the previous definition of an “identification document” with a picture. In other words, Obenberger said, a Custodian of Records with valid copies of models’ government-issued passports will not need to worry about providing a “picture identification card” since a passport both contains a picture of the model and fits the definition of a valid “identification document.”
Obenberger’s position on this issue has been rebutted by attorney Marc J. Randazza, who holds a different view of the ID requirements.
For more information about 2257, visit Obenberger’s 2257 page located at xxxlaw.net.
