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Regarding 2257 regulations . . .
. Dec 21 08 11:18 pm Link This is bullshit... We come closer and closer to becoming closely examined specimens in a country that is sooooo "Free". My biggest thing is... If I was one of these models I wouldn't want to be leaving copies of my I.D. and all my personal info. with someone I don't know and will most likely never see again. I just don't like the idea of this not in the least! J Dec 21 08 11:40 pm Link First, thanks for a great post Ken. Second, after reading through the first three pages of posts, I took a bit of time and began reading through some of what the actual regulations say. Now, I'm not a lawyer either and have read only a small portion of the rather extensive document, however, my impressions from the posts which caused me to be quite concerned were no where near as bad when I began to read the actual document. While there is certainly things to be concerned about and get educated on, setting aside a good chunk of time and reading the real document as opposed to just people's posts and getting an official legal opinion if after that you think it may apply would help calm many nerves. It can be read at http://edocket.access.gpo.gov/2008/E8-29677.htm . Also, I saw quite a few posts about how this impacts MM. Below is a section that would, in my non-lawyer opinion, pretty much exclude MM from having to change anything. In other words if adult networking sites are excluded it would seem MM should be safe, after getting a legal opinion that is. :-) - ben passiontolive "Producer The Department received thousands of comments that appear to be part of an orchestrated campaign that opposes the requirement in the proposed rule that adult social-networking sites obtain and maintain personal information concerning their users, including obtaining and maintaining users' photo identification, as well the ability of the Department to inspect such records and invade user privacy without safeguarding the information once observed. They state that it is not feasible to have adult networking sites for thousands of users under the rule, and they note that users of such sites already certify that they are over 18. The Department does not adopt these comments. First, most social networking sites would appear not to be covered by the statute and the rule under the definition of ``produces'' in section 2257(h)(2)(B)(v) and Sec. 75.1(c)(4)(v), respectively. The statutory definition excludes from ``produces'': ``the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication.'' See also 28 CFR 75.1(c)(4)(v) (excluding ``[a] provider of an electronic communication service or remote computing service who does not, and reasonably cannot, manage the sexually explicit content of the computer site or service''). Therefore, the Department does not accept that such sites cannot operate under the proposed rule, or that such sites must maintain information concerning their users, much less that the Department must be able to inspect such data. However, one who posts sexually explicit activity on ``adult'' networking sites may well be a primary or secondary producer. Users of social networking sites may therefore be subject to the proposed rule, depending on their conduct. That such users may certify without penalty or effective..." Dec 22 08 12:12 am Link Thanks to Ken and Roger for lots of insight. Considering the number of R-rated or even PG-13-rated material that could conceivably be caught under the umbrella of this legislation, I'm amazed at the sheer difficulty the FBI will have in policing this. For instance, movies like the "Saw" series have enough S&M in them to keep the regulators busy for months. Even old flicks like "Lethal Weapon" included scenes that would now qualify. In fact, there are a number of episodes of "Law & Order" in its various versions that would fall under this umbrella. We can only hope and pray that the Supreme Court agrees with the 6th Circuit and kicks this mess back to Congress to come up with something more coherent that actually protects children. Dec 22 08 01:11 am Link PS: One item I'm hearing is that people are surprised that photographers didn't keep 2257 records. Well, until now, the images that require 2257 records were dramatically different from the ones that will require 2257 records in the future. It's pretty difficult to guess which images the DOJ is going to target retroactively, so most of us just didn't try. Unlike many of the folks in this thread, I've got the beginning of some pretty good records just because, but I couldn't comply with the 20 hours per week mandate, so I removed anything I had that (at the time) would have been considered 2257 applicable from the Web when 2257 first became applicable. It will be interesting to see if the retroactivity is upheld, or even if the law passes muster in the courts. Dec 22 08 05:22 am Link I'm surprised no one has said Orwellian yet, because this is exactly the mindset that is the premise of "Animal Farm" and "1984". While this vagueness is scary, it may actually help towards reigning these regulations in. What would be great would be for members to contribute a collection of original images that minimally qualify in the minds of the experts and put them on a site named "2257watch.org" or similar. Ideally these images would be similar to the kinds produced by non-photographers such as on Myspace and Facebook. The site would get the point across that even many everyday images subject users to jail time and unannounced inspections. Included would be names of people in government to voice concern to and suggested lettter templates. Spread this URL by e-mail far and wide in "urban legend" fashion, and get the people scared. Dec 22 08 06:39 am Link "If you have any plans on ever displaying your images publicly or online, you will need to have all your paperwork in order." So, I take it that private sittings of women for their SO's are exempt from 2257? (as they are not likely to be published or displayed publicly or online) Dec 22 08 08:37 am Link I guess it is OK to admit to a certain amount of confusion...as a non-pro, I dont "live' this stuff like you folks do, and it is obvious there is still confusion even among the "experts". I have read most of this thread, and several of the others as well, Sections 2256 and 2257, and as many of the links as I could. I am still uncertain how to determine what images are likely to realistically be looked at as requiring 2257 record keeping... real world... not worst case, not best case..... Are fine art nudes, of obviously adult models, posed alone, in non-sexual, non-suggestive poses, without exposed genitals, (but possibly with exposed pubic hair?) likely to require 2257 record keeping? Would photographic renditions of the 16th century masters' nudes require 2257 records? Where is the line? I understand the line is grey... but what position does a prudent non-pro... a guy who sells an occasional print, does a local gallery show or two... but mostly does it because he enjoys the creation of the images... what does he/she do at this point? I know...talk to a knowledgeable attorney who is well versed in this specific area of law... well, I think my attorney has a library card... like most of us I dont have a NYC/DC/LA team on retainer though... So, I guess the real question about legal support then becomes, realistically, how long will it be till there is enough case law to guide a little guy like me into the prudent course for the real world risks/responsibilities of 2257? A second question, Are there commercial firms who might take on the record keeping issues for small "producers"... GWC's, hobbyists, camera clubs etc etc? [edit: And a third question: Are sponsored workshops themselves "producers" or the individual photographer attending the workshop?] Dec 22 08 11:22 am Link Smedley Whiplash wrote: That would probably not be of much interest to the inspectors, and private, personal use would be exempt (as long as there are no underage people in the images). Dec 22 08 11:25 am Link Rob Hawkins wrote: The best advice is to comply to the law and do your paperwork before every shoot, even if you are unsure that a particular session will need it. It only takes a few minutes to obtain some copies of ID's and have a model sign some forms. Dec 22 08 11:30 am Link Ken Marcus Studios wrote: Understood, and I have long kept records for each shoot... My ID standards usually didnt include TWO photo ID's, and I certainly didnt keep an "alias statement", although I did note stage names if the models desired their use... Dec 22 08 11:37 am Link retphoto wrote: Do you think we can ask the models to bring copies of two IDs? Dec 22 08 12:06 pm Link TXPhotog wrote: My intention is to stay away from anything close to what would fall under 2257. Big Brother wins. My reading (which may and hopefully is wrong) is that this also includes "the pubic area" which a consultant for one of the adult industry sites (sorry can't remember where I saw it) stated this could mean clothed as well. Am I getting old and new confused? Dec 22 08 12:39 pm Link TXPhotog wrote: Retinal Fetish wrote: Rather than me replying with an interpretation, your question has been dealt with by the preamble to the regulations, which explicitly discusses the requirements for bondage and fetish work. Anything I say would only be my interpretation of what they said, which is less valuable than the original. TX I appreciate your reaponse... but to my admittedly clueless review...this does anything but clarify. It seems that their statement is that they will NOT define what the definition is. Does this mean that ANYTHING fetish or BDSm related triggers 2257? TX please , I swear I won't take it as anything other then a non expert opinion, but I would really love to know if you feel I need 2257 documents and labling for anything currently on my port.... your selection of what if any needs it would be of huge help to me! Dec 22 08 12:48 pm Link Here's something interesting that a guy that is 'in the know' has to say about the current 2257 situation and where it may lead. This was published in xbiz.com, a leading source of industry information for the adult world. It is written by Gregory A. Piccionelli (a prominent adult entertainment attorney). Here's a link to the original article: http://www.xbiz.com/articles/legal/102934 I suggest that you read this KM - - - - - - - - - - - - - - - - The adult entertainment industry has great reason to celebrate this holiday season and the reason why can be summed up in three words: President Barack Obama. Adult entertainment businesses traditionally encounter substantial governmental hostility under conservative Republican regimes. This has particularly been the case over the last eight years as the Bush administration and Republicans in Congress passed numerous exceedingly oppressive and often unconstitutional "anti-porn" laws. In addition, in recent years the administration augmented its legislative attack on the industry with a number of obscenity prosecutions and the commencement of 2257 inspections. In each case, the government's acts were promoted by the administration and conservative Republicans in Congress as necessary steps to "protect children" from dangers the Republicans themselves had created out of whole cloth. Over the last eight years, each violation of the industry's and its consumers' free speech rights by Bush and his buddies have been justified by fabricated claims of linkages between the mainstream adult entertainment industry and child pornography or nonsensical claims that pornographers promote the sale of porn to kids. Thus, the administration's strategy to gain support for regulation of the adult entertainment industry has, not surprisingly, been essentially the same strategy it has used to obtain support for other half-baked actions from the Patriot Act, to the war in Iraq, to the massive socialist bailout of Wall Street. Simply put the strategy is: (1) create fear, (2) nurture and build fear, (3) exploit fear. And for a long time George W. and his cronies have been pretty successful at this political version of a Mafia protection racket applied on a grand international scale. But as Abraham Lincoln observed "you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time." Good advice from that great Republican to the miserable slime-ball Republicans of our day. Too bad for them that they did not heed Honest Abe's advice. Because on Election Day 2008, America spoke ... loudly. In fact, I'd say it roared, as if with one loud and thunderous voice directed at George W. Bush and the Republican party: "ENOUGH IS ENOUGH!" But perhaps of even greater importance than the resounding repudiation of all things Bush is the fact that, thanks in large part to Obama, one unmistakably and undeniably American theme rooted in the very DNA of our country made a big and stunningly bright comeback on Nov. 4. For on that day, our countrymen, in record numbers, undeniably reaffirmed one of our nation's core beliefs and loudly proclaimed to the world that hope and not fear will guide the U.S. through these difficult times, just as it has through every challenging period since her birth. Moreover, by electing Barack Obama, I think America also signaled to the mean-spirited, intolerant, conservative fear-mongers on the right that tolerance and civility also have made a comeback. It was clear that voters were greatly impressed that Obama never lost his cool and responded to his opponent's despicable mud-slinging by simply waging what was arguably the cleanest and most positive campaign in recent history. One cannot predict with certainty what all this will mean for the adult entertainment industry. Nevertheless, I confidently believe that Obama's blow-out defeat of the McCain-Palin ticket and the Democrats' expansion of their majorities in the House and Senate clearly provide good reason for optimism and celebration. Here are some of the reasons why: A Bullet Dodged Because of Obama's defeat of John McCain, the adult entertainment industry can celebrate the fact that it has dodged a potentially lethal legal bullet. Had John McCain been elected, he would likely have followed through on his frequently stated campaign promise to appoint a least two conservative justices to the Supreme Court with "strict constructionist" views of the Constitution similar to those held by Justice Antonin Scalia. This would have been disastrous for the adult industry because Justice Scalia's strict construction of the Constitution includes the view that sexually explicit content is not a form of "speech" the founding fathers intended to be protected under the First Amendment. A Supreme Court more conservatively configured to reflect this view would likely rubber-stamp virtually every oppressive regulation of the adult entertainment industry brought before it. As a result, challenges to the 2257 regulations and the obscenity laws would, for example, likely be doomed to defeat. We can reasonably expect that Obama will almost certainly appoint new, and relatively young, justices to the Court that will preserve for many years to come the current majority view that sexual expression is in fact protected speech. As a result, the adult industry will continue to enjoy the constitutional protections it simply must have to survive. Also, if a first-Obama-term leads to a second, Obama may even have the opportunity to replace Justice Scalia himself. From the adult industry's perspective, that, of course, would be a very good thing indeed. A likely champion for free speech. One of the many reasons why I am elated that Obama was elected to be our 44th president is the fact that there is every indication that he and his administration will be exceptional advocates and protectors of our freedoms of expression. A former constitutional law professor himself, Obama has consistently demonstrated a true understanding and profound conviction that governmental regulation must not violate our civil rights, including those rights protected by the 1st Amendment. In this regard, I believe that Obama and his administration will champion our civil rights in stark contrast to the reprehensible disregard of them by Bush and his administration. Because of this, it is almost certain that Obama's administration will discontinue Bush's hostile and adversarial policies towards the adult entertainment industry. I am elated by the prospect that we will at long last see reason replace religion as the driving force in the regulation of the adult entertainment. As such, I am hopeful that the following will be a good approximation of how regulation of the adult entertainment industry will change under Obama: 2257 regulations under Obama. The Justice Department under Obama will likely prioritize enforcement of 18 U.S.C. §2257 and 28 CFR 75 (the "2257 regulations") the same as President Clinton's Justice Department. That is, no priority. As a result, I would be surprised to see any 2257 inspections or indictments during the Obama administration. Further, I am hopeful that the industry will at last have the opportunity of working with Congress to replace the ridiculous, unconstitutional and horrifically punitive 2257 regime with a simple, fair and more effective means of assuring that no minors are used in the creation of sexually explicit content. Obscenity prosecutions in an Obama administration. I expect federal obscenity prosecutions to cease entirely under President Obama as they did under President Clinton. Interestingly, such a prosecutorial hiatus might have the effect of permanently hampering federal obscenity prosecutions involving mainstream adult content because continued sale of such content into virtually every community in the U.S. during such a four- or eight-year prosecution break may well leave obscenity prosecutors under a future Republican president with few if any communities in which such mainstream adult content could be deemed to be outside of their community's standards. Keeping kids out of online adult content. Obama has always favored parental filtering as the preferred means of solving the problem of keeping online adult content away from kids. I am very hopeful that the Obama administration and democratic lawmakers will work with the Free Speech Coalition, ASACP, and other members of the adult entertainment industry to develop effective means of filtering explicit adult content at the users' end. A New Hope Republicans, after receiving a royal ass-kicking from the Democrats in the last election are publicly debating the issue of how they find themselves in their current position. While the state of the economy certainly played a role, increasingly more and more moderate and fiscal conservative Republican leaders are openly attributing their stunning defeat in part to the influence social conservatism has had on their party under Bush. Many Republican leaders are openly stating that the future of their party depends on a return to the principals of less government that many moderate and fiscal conservative Republican leaders stress once meant, and must again mean, getting the government out of the business of regulating what people do in their bedrooms. While I am not convinced that the social conservative segment of the Republican party is in any danger of immediate extinction, it is instructive, and frankly, personally satisfying, to see that an increasing number of Republicans are blaming their party's problems on that wing of the party. But above and beyond the Republicans' internal finger-pointing problems, many political scientists believe that the recent election has signaled nothing less than a major political realignment that could favor the Democrats for decades. If they are correct, perhaps the most important reason why the adult entertainment industry has cause to celebrate Obama's victory is that it is emblematic of a shift to a younger, more liberal and more tolerant American culture that is more accepting of adult entertainment than any that has come before. If that is the case, the recent election may indeed have marked a turning point in which the worst of the governmental oppression of the industry is forever behind us. I certainly hope so. Because it strikes me as somewhat strange that as America celebrates the fact that it has come far in its efforts overcome racial intolerance in the election of Obama, it still condones the imprisonment of its citizens for merely publishing erotic images. Clearly, we have come a long way and we should celebrate. But equally clearly, we have a long way to go. At the time of this writing there are 75 days, 12 hours and 19 minutes until the end of the Bush administration. a Gregory A. Piccionelli is an adult entertainment attorney. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at [email protected]. Dec 22 08 03:48 pm Link Ken Marcus Studios wrote: A wonderful read... thanks for sharing Ken! Dec 22 08 04:01 pm Link Yes, now that Obama has been elected, we can all rejoice! Welcome to the "land of milk and honey".....I won't be holding my breath.... Does anyone know what was done during the Clinton Years (he had 8) about the original 2257 Regulations? Oh, yeah....nothing. Dec 22 08 06:00 pm Link Dec 22 08 07:06 pm Link Creative Works LLC wrote: I'm not sure that I follow. I briefly looked at the page you linked and it's about child beauty pageants. I personally find the whole child beauty queen thing to be slightly creepy, but I don't think the child beauty industry nor it's fans will be impacted by the pending update to 2257 regulations. Dec 22 08 08:11 pm Link Why not? Underaged girls dressed inappropriately for their age and exhibiting sexually suggestive behavior -- all that is in 2257: The leading case is United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), affâd sub nom. United States v. Weigand, 812 F.2d 1239 (9th Cir. 1987), which provides a list of factors for determining whether a visual depiction constitutes lascivious exhibition: (1) Whether the focal point of the visual depiction is on the childâs genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Dost, 636 F. Supp. at 832. Several courts of appeals have relied upon the Dost factors. See, e.g., United States v. Grimes, 244 F.3d 375 (5th Cir. 2001); United States v. Knox, 32 F.3d 733 (3d Cir. 1994); United States v. Wolf, 890 F.2d 241 (10th Cir. 1989). Dec 22 08 08:47 pm Link Scott Miron wrote: Well the fact is, when it comes to freedom and free speech the liberal's and democrats arent really known for supporting it. Dec 22 08 08:54 pm Link Creative Works LLC wrote: They wouldn't have to wait. If those factors were true, they could stop them today. The factors that you've listed that will be used under the updated 2257 are currently used to make a determination of child porn - and that could be done now (it could have been done years ago) - they wouldn't have to wait for a record keeping law. Dec 22 08 09:27 pm Link Does anyone seriously believe anyone makiing child porn is going to keep records of the performers? This is just another ill-conceived "feel-good" law that is only going to affect the law-abiding citizen. Criminals, in this case child molesters and child pornographers, will ignore this law just like they ignore the laws against child pornography. Dec 23 08 03:42 pm Link Over the last few days I have read all these recent posts and read the 2257. Alot of valuable info and dicussion on this. The biggest hurdle is maintaining the proper paperwork and record keeping from what I can see. With that said if you're not shooting nudes the 2257 doesn't really apply as long as it's not sexually explict or nude. What about implied nudes ? I take it shooting girls in swimsuits, lingerie or maxim style should be ok with a simply model release. And as far as record keeping. What happens if your image is used on a web-site or by a model without your consent or knowlege. These girls are always submitting pic's here and there. And people steal pic's. Opps ! Basically this law applies to us all but geared more towards images that are used for commerical gain published in mags or on sites anywhere, but that are more adult oriented or classified as porn. Dec 31 08 07:43 am Link Bp3 Images wrote: Better to admit and disclose nothing online unless you are certain your work falls under 2257 and you are a known producer. Dec 31 08 08:05 am Link rp_photo wrote: Never talk to the police. Ever. Dec 31 08 08:26 am Link rp_photo wrote: JJ Art wrote: In the abscence of certainty that one's work qualifies, I see a 2257 compliance statement and disclosure of location as talking to the police and a Fifth Ammendment conflict. Dec 31 08 08:29 am Link Michael McGowan wrote: There is a self certification exemption for producers like this. Not for little people, but for major producers who fall under other sections of strict law (in this case the FCC and the MPAA) they can file some forms and never be inspected or required to follow these documentation laws. Michael McGowan wrote: I'm not holding my breath... I hope I like jail food. Dec 31 08 08:30 am Link rp_photo wrote: I agree entirely. Dec 31 08 08:31 am Link slave to the lens wrote: Actually if your a, b, and c apply, then you have already broken the law. I believe they are allowing you to "go back and collect records" but if you read the comments, one of the reasons that they require such strict documentation is that this record keeping must be done *BEFORE* any production. If you do the documentation after, you have broken the law and have a 5-10 year jail term coming your way. Dec 31 08 08:35 am Link rp_photo wrote: I've encountered models who have no problem going well past the 2257 line on TFCD (not generally something I shoot, but discovered in conversation). Naturally, I've also encountered models who have no interest in going near the "my bra shows in the picture" line, even if paid. Aug 31 09 09:06 am Link |
