LEGAL BRIEFS
If you missed the first part (http://www.ynotnews.com/092701/page1.html) of this article, here are the questions that were asked: If I include some text on my site, will that help me avoid an obscenity prosecution? What’s obscene? Do I have to be concerned with state and local laws? How many forms of ID should I require before a shoot? Is it OK to take a picture of the ID? How long do I have to keep 2257 Records?
6.LEGAL BRIEFS
If you missed the first part (http://www.ynotnews.com/092701/page1.html) of this article, here are the questions that were asked: If I include some text on my site, will that help me avoid an obscenity prosecution? What’s obscene? Do I have to be concerned with state and local laws? How many forms of ID should I require before a shoot? Is it OK to take a picture of the ID? How long do I have to keep 2257 Records?
6. Q: 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 that 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 a very 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 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?
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, 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.
This article does not constitute legal advice or create any attorney-client relationship, but is written only to generally inform the public. If you are arrested, secure the assistance of an experienced attorney immediately, and until you consult with him, agree to nothing, make no statement, and do not offer resistance.
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 or paged in any emergency at 312.250.4118. His e-mail address is xxxlaw@execpc.com .
