Doug Lester wrote:
OK, it's legal. But .....


Yes, non sexual photography of under age kids is probably legal, but so what. Wonder if Joe believes photographing that 16 year old Vixin was worth it?

You forgot the part where "Joe" got struck by lightning.
Because that is more likely than your "scenario".

There are literately thousands or tens of thousands of photographers who have shot people under 18 in nude, semi nude, or implies manners in the US recently.
And yet there are only a handful of prosecutions and even fewer conviction.

Stop the fear mongering.

Chris Macan wrote:

You forgot the part where "Joe" got struck by lightning.
Because that is more likely than you "scenario".

There are literately thousands or tens of thousands of photographers who have shot people under 18 in nude, semi nude, or implies manners in the US recently.
And yet there are only a handful of prosecutions and even fewer conviction.

Stop the fear mongering.

***

yea but it only takes one right!!

bsp studios wrote:
The truth here is,... even though he was innocent, he was tried by "bible thumpers"- and found guilty.  There really isn't a sense of real judgment and true laws, in this country.

And yet, this reads like a hypothetical situation, and we haven't seen the images in question. They very well may have been lewd and sexually suggestive.

Personally, if I were going to shoot minors nude, it would have to fit the context of the story I was telling. Once you have established that context, you have protected speech. Your Joe The Plumber guy apparently wasn't shooting on assignment or for any reason other than recreation. The work wasn't going to the press, into a theater, immediately sent to a modeling agency, or scheduled for a gallery show. It wasn't really speech, because it wasn't intended to be expressed. That's the perversion, I think. That literally is where people get into trouble. If you aren't expressing something with the work, there isn't much point to it, you just committed to the act of taking a photo to be committing the act of taking a photo. I think the lesson from this story is, if you live in a town dominated by a religious cult (I'm looking at you, Christianity!), you need to be aware that there may be a serious social rejection of your work.

bsp studios wrote:
*******

The truth here is,... even though he was innocent, he was tried by "bible thumpers"- and found guilty.  There really isn't a sense of real judgment and true laws, in this country.

The truth here is that scenario describes the majority of America.  It's more likely to happen in the bible belt, but it's not unlikely to happen anywhere in this country, and for that reason the fact that it's not illegal to photograph underage nudes is totally irrelevant to the question of whether or not doing so can destroy ones world.  And anyone who nonchalantly tells Joe that none of it would matter if he was a "real artist" is just a self-inflated windbag.

Have Pentax Will Travel wrote:
And yet, this reads like a hypothetical situation, and we haven't seen the images in question. They very well may have been lewd and sexually suggestive.

Personally, if I were going to shoot minors nude, it would have to fit the context of the story I was telling. Once you have established that context, you have protected speech. Your Joe The Plumber guy apparently wasn't shooting on assignment or for any reason other than recreation. The work wasn't going to the press, into a theater, immediately sent to a modeling agency, or scheduled for a gallery show. It wasn't really speech, because it wasn't intended to be expressed. That's the perversion, I think. That literally is where people get into trouble. If you aren't expressing something with the work, there isn't much point to it, you just committed to the act of taking a photo to be committing the act of taking a photo. I think the lesson from this story is, if you live in a town dominated by a religious cult (I'm looking at you, Christianity!), you need to be aware that there may be a serious social rejection of your work.

NO PROBLEM I ALWAYS ASK FOR PROOF OF AGE...AND I DON'T WORK WITH MINORS EITHER.
IF A CLIENT WANTS SHOTS OF A MINOR FOR A TEEN MAG...I WON'T USUALLY DO IT UNLESS I CAN FIND SOME MODEL WHO LOOKS YOUNGER TO FIT THE PART THAT IS 18 OR OVER...
WHO REALLY NEEDS THE DRAMA? NOT ME??

Have Pentax Will Travel wrote:
Your Joe The Plumber guy apparently wasn't shooting on assignment or for any reason other than recreation. The work wasn't going to the press, into a theater, immediately sent to a modeling agency, or scheduled for a gallery show. It wasn't really speech, because it wasn't intended to be expressed. That's the perversion, I think. That literally is where people get into trouble. If you aren't expressing something with the work, there isn't much point to it, you just committed to the act of taking a photo to be committing the act of taking a photo.

Wow, talk about an assault on free speech!  It's only protected if you think it's legitimate?  If it has a commercial purpose?  I guess art for the sake of art is just recreation, and not worth sacrificing your livelihood for, but art for money is sacred.  After all, if it wasn't produced to sell, it's not expressing anything ....

Have Pentax Will Travel wrote:
I think the lesson from this story is, if you live in a town dominated by a religious cult (I'm looking at you, Christianity!), you need to be aware that there may be a serious social rejection of your work.

This I agree with, except it needs to read if you live in a society dominated by a religious cult.  NYC may have some degree of buffer, but Doug's scenario is realistic to some degree in the majority of America

Have Pentax Will Travel wrote:
I wish the PPA would stand up a bit more, but I think they have a wedding to go to.

Holy crap I cant stop laughing

Doug Lester wrote:
...Back when I was shooting film, I went to pick up several rolls of color film they had processed for me. The guys in the store knew me well as I was in every few days, but they had a new manager. When I went in to pick up the film, a silence fell over the store employees and they would not meet my eyes. The new manager came out and began asking me about the photos. At first confused, I finally caught on and explained that the model looked young, but in reality was   23 year old Asian and an electrical engineer. Immediately everyone relaxed and the manager brought my negs from the back room instead of from the bin where they were normally placed. As  I left, I noticed a post it note on the back of the envelope. Out of curiosity I later called to see who answered and it was the local police detective bureau. Had I not been known in the store for years, I would have been explaining to the police. For what it's worth, the photos were discrete nudes, with nothing sensual or erotic about them.

I had a friend about 10 years ago that shot a couple rolls of film of his wife with another woman.  He took them to Walgreen to get developed.  They saw the pix, and called the police.  My friend and his wife had to go to the police station and show proof of her age.  She was like 30 at the time, but she looked 15.  Yes, she looked that young, and it damn near got him arrested.

bsp studios wrote:
NO PROBLEM I ALWAYS ASK FOR PROOF OF AGE...AND I DON'T WORK WITH MINORS EITHER.
IF A CLIENT WANTS SHOTS OF A MINOR FOR A TEEN MAG...I WON'T USUALLY DO IT UNLESS I CAN FIND SOME MODEL WHO LOOKS YOUNGER TO FIT THE PART THAT IS 18 OR OVER...
WHO REALLY NEEDS THE DRAMA? NOT ME??

Not that it has anything to do with this subject, but you'd rather produce content for teenagers that presents a false image of their peers than use a teenager who represents the actual audience for the content?

Why are you writing in all caps? Stop that.

Chris Macan wrote:

You forgot the part where "Joe" got struck by lightning.
Because that is more likely than you "scenario".

There are literately thousands or tens of thousands of photographers who have shot people under 18 in nude, semi nude, or implies manners in the US recently.
And yet there are only a handful of prosecutions and even fewer conviction.

Stop the fear mongering.

Maybe a little fear mongering might have saved this guy, prosecuted, convicted, and sent to prison under 43.25:

http://www.firstamendmentcenter.org/news.aspx?id=11669

http://www.freerepublic.com/focus/f-news/958573/posts

Associated Press wrote:
(8/04/03 - SAN ANTONIO) — A man who photographed a nude teenage boy on San Antonio's River Walk in 2001 was sentenced Monday to five years in prison.

Shooting nudes on the San Antonio River Walk is like taking nudes next to the fountain in a mall. What was the guy thinking?

Benito Tovar, 33, was convicted in late June on charges of inducing a minor to participate in a sexual performance and possession of child pornography.

Possession of child pornography? Is this from the shoot or what they confiscated at home?

Prior to sentencing by state Judge Juanita Vasquez-Gardner, Tovar said he took full responsibility for what he called an error in judgment, according to Monday's online edition of the San Antonio Express-News.

He also repeated his claim at trial that he was trying to build up his art portfolio and at the same time help his 15-year-old victim launch a modeling career.

"I just wanted to help someone with his dream, and I wanted to create something that was beautiful," Tovar told the judge. "But I messed up."

He's admitting guilt? Of what? Throwing yourself on the mercy of the court for making art?

During the trial, prosecutors presented the black-and-white photographs confiscated on the morning that Tovar and the teen were arrested.

I'm guessing this means that either the cops processed the film at WalMart, or they found additional materials in his home.

Tovar maintained that the photos represented artistic expression, but his defense lawyers did not call any witnesses to back up that assertion.

That's a pretty stupid move. You say it's art, the prosecutor says it is not, so bring in serious experts who can impress that claim on the jury.

After their verdict, jury members told reporters they never considered the photographs as art.

It sounds like the photographer never actually pled his case.

The problem with looking at these local decisions is that they seem to have all been argued by Old Gill from The Simpsons. First Amendment law needs to be handled by qualified specialists, not half-ass ambulance chasers.

Have Pentax Will Travel wrote:
There are a lot of holes in this story.

Associated Press wrote:
(8/04/03 - SAN ANTONIO) — A man who photographed a nude teenage boy on San Antonio's River Walk in 2001 was sentenced Monday to five years in prison.

Shooting nudes on the San Antonio River Walk is like taking nudes next to the fountain in a mall. What was the guy thinking?

Benito Tovar, 33, was convicted in late June on charges of inducing a minor to participate in a sexual performance and possession of child pornography.

Possession of child pornography? Is this from the shoot or what they confiscated at home?

Prior to sentencing by state Judge Juanita Vasquez-Gardner, Tovar said he took full responsibility for what he called an error in judgment, according to Monday's online edition of the San Antonio Express-News.

He also repeated his claim at trial that he was trying to build up his art portfolio and at the same time help his 15-year-old victim launch a modeling career.

"I just wanted to help someone with his dream, and I wanted to create something that was beautiful," Tovar told the judge. "But I messed up."

He's admitting guilt? Of what? Throwing yourself on the mercy of the court for making art?

During the trial, prosecutors presented the black-and-white photographs confiscated on the morning that Tovar and the teen were arrested.

I'm guessing this means that either the cops processed the film at WalMart, or they found additional materials in his home.


That's a pretty stupid move. You say it's art, the prosecutor says it is not, so bring in serious experts who can impress that claim on the jury.


It sounds like the photographer never actually pled his case.

The problem with looking at these local decisions is that they seem to have all been argued by Old Gill from The Simpsons. First Amendment law needs to be handled by qualified specialists, not half-ass ambulance chasers.

It's time for him to contact http://www.ACLU.org (or similar organization) for his plea.

Seriously, it sounds like HE JUST BENT OVER AND SPREAD HIS OWN CHEEKS!!!

Have Pentax Will Travel wrote:
Maybe I'm a little secure in my positions on this because of my educational background. It's harder to accuse a working fashion photographer who went to college for creative writing and graduate school for filmmaking, of not creating art when he takes a picture. Unless I'm checking the thing for dust, I usually have editorial intent when I pick up a camera. I don't often go out of my way to take pictures of things just because they are beautiful. I take pictures to communicate with the viewer, and that is exactly what is protected under the 1st Amendment.

Amen and . . . amen!!!

Have Pentax Will Travel wrote:

That's a pretty stupid move. You say it's art, the prosecutor says it is not, so bring in serious experts who can impress that claim on the jury.

The heavy cost of bringing in expert witnesses is more than most people can afford in addition to their lawyers fees. Some 'art experts' get thousands of dollars a day to testify.

KM

UIPHOTOS wrote:
Legally there is NO DIFFERENCE between a newborn and a 17 year old, or whatever the age of consent is in various locations.. ALL are MINOR CHILDREN..

Why People dont think twice about seeing a naked baby in a bathtub but a naked 16 year old becomes some kind of moral issue seems foolish at best..

LASCIVIOUS is the key word..

But I can understand the confusion on this site where most are shooting GLAMOUR nudes and the thought of a MUSEUM is so foreign..

INTENT is as much the issue as Content..

Basically, it's a case of them reading their OWN intent into things that they see . . . what THEY don't understand is that NOT EVERYONE intends to photograph their subjects in a demeaning, objectifying, degrading fashion.

Sometimes, the people who cry "Wolf!" are themselves wolves.

Jenna Black wrote:
Truth requires no creativity.

Have Pentax Will Travel wrote:
Repeating accepted truths does not. Affecting minds, communicating what hasn't been said clearly, the deepest purpose of art, requires creative thought.

I'm keeping this quote!

Ken Marcus Studios wrote:

The heavy cost of bringing in expert witnesses is more than most people can afford in addition to their lawyers fees. Some 'art experts' get thousands of dollars a day to testify.

KM

...and expert testimony brings no assurances of success. So-called "experts" may have no effect, or even in some cases a negative effect.

Ken Marcus Studios wrote:
The heavy cost of bringing in expert witnesses is more than most people can afford in addition to their lawyers fees. Some 'art experts' get thousands of dollars a day to testify.

KM

San Antonio is a major city. Plus it is, what, an hour from Austin? Austin is one of the art gallery capitols of the southeastern United States. You think if the guy had one friend who was also an artist, they couldn't drive around for an afternoon and find three people with art history degrees willing to help out a photographer who's in danger of going to jail for shooting nudes?

Fotographia Fantastique wrote:

...and expert testimony brings no assurances of success. So-called "experts" may have no effect, or even in some cases a negative effect.

But they didn't even try. The guy didn't have a defense strategy, he had a surrender strategy.

Leroy Dickson wrote:
I don't know about anyone else here, but I have no desire to have my name immortalized in legal precedence.

AMEN

Have Pentax Will Travel wrote:
It's harder to accuse a working fashion photographer who went to college for creative writing and graduate school for filmmaking, of not creating art when he takes a picture.

Good luck with that if you ever have to appear before a jury.

PYPI FASHION wrote:
Is that the same Andrew Slater that has an account here? Maybe you can ask him about it.

That's him.  The model is on MM too.

Have Pentax Will Travel wrote:
There are a lot of holes in this story.

Associated Press wrote:
(8/04/03 - SAN ANTONIO) — A man who photographed a nude teenage boy on San Antonio's River Walk in 2001 was sentenced Monday to five years in prison.

Shooting nudes on the San Antonio River Walk is like taking nudes next to the fountain in a mall. What was the guy thinking?

Obviously, he wasn't thinking. Perhaps he spent a lot of time on internet photography forums reading where it's perfectly legal to shoot minors nude anywhere in the U.S. as long as it's not sexual.

I also recall reading on forums at the time that he wasn't actually in the heavily-populated portion of the River Walk, but a more secluded section, where there was some expectation of privacy. Still, shooting nudes in public is problematic enough without adding an additional dimension. Even if he had shot in the complete privacy of a studio, if he sent his film out for processing in Texas, he would have likely been busted anyway, as labs are required by 43.27 to report anything they process which might violate the statute.

Benito Tovar, 33, was convicted in late June on charges of inducing a minor to participate in a sexual performance and possession of child pornography.

Possession of child pornography? Is this from the shoot or what they confiscated at home?

I believe they considered the photographs he took of the nude minor to be the child pornography. If they couldn't get 43.25 to stick, they could always go for the child porn charge.

Prior to sentencing by state Judge Juanita Vasquez-Gardner, Tovar said he took full responsibility for what he called an error in judgment, according to Monday's online edition of the San Antonio Express-News.

He also repeated his claim at trial that he was trying to build up his art portfolio and at the same time help his 15-year-old victim launch a modeling career.

"I just wanted to help someone with his dream, and I wanted to create something that was beautiful," Tovar told the judge. "But I messed up."

He's admitting guilt? Of what? Throwing yourself on the mercy of the court for making art?

I can't answer that one. Perhaps he was throwing himself on the mercy of the court. If so, he would probably have been better served by not asking for a jury trial.

During the trial, prosecutors presented the black-and-white photographs confiscated on the morning that Tovar and the teen were arrested.

I'm guessing this means that either the cops processed the film at WalMart, or they found additional materials in his home.

Again, I don't know. If the upstanding citizen who dropped the dime also got a license number, then maybe the photographer had time to get the film processed and proofed, and that's what they found when they arrested him. If the cops threw down on the scene of the "crime" then maybe they had the film processed, although probably not at Wal-Mart. I think the cops usually use a professional lab under contract.

Tovar maintained that the photos represented artistic expression, but his defense lawyers did not call any witnesses to back up that assertion.

That's a pretty stupid move. You say it's art, the prosecutor says it is not, so bring in serious experts who can impress that claim on the jury.

I'm guessing it wasn't even close to art, but who is to say? I think he should have tried to simply make a case that it wasn't "lewd" since that's the operative word in 43.25. The statute under which he was convicted says nothing about "art" just "lewd." There may have been other charges under other statutes, but I have never been able to find any actual documents from the trial, just a few news reports on the net. There was a lot of talk about the case on Texas photography forums at the time.

After their verdict, jury members told reporters they never considered the photographs as art.

It sounds like the photographer never actually pled his case.

The problem with looking at these local decisions is that they seem to have all been argued by Old Gill from The Simpsons. First Amendment law needs to be handled by qualified specialists, not half-ass ambulance chasers.

Indeed, which is the problem I have with people on the internet who delight in repeating the mantra "It's not illegal to shoot minors nude anywhere in the U.S." Maybe, maybe not, but fools will read that, take it at face value, then walk blindly into the meat grinder and see their lives destroyed.

A true artist would retain such specialists and, quite likely, prevail in court, although he might be financially devastated in the process. The average GWC might end up like this guy, in prison.

I'm also wondering how much this case was influenced by the fact it was a male photographer and a male model. It's likely that more jurors would find frontal nudes of a male to be lewd than of a female.

Sergio Antonio wrote:
Although state laws may vary, federally it is permissible as long as the parent/guardian gives written consent, the model isn't coerced, and the subject is non-sexual.

Please provide the federal law that says anything about written consent from a parent/guardian giving you permission to shoot a minor nude, or anything about coercion of the minor.

Ken Marcus Studios wrote:

The heavy cost of bringing in expert witnesses is more than most people can afford in addition to their lawyers fees. Some 'art experts' get thousands of dollars a day to testify.

KM

Couple of thousand bucks seems cheap compared to mounting no defense.

Of course the lack of a defense has conceivably set up an appeal on grounds of incompetence by his trial lawyer.

Chris Macan wrote:
Of course the lack of a defense has conceivably set up an appeal on grounds of incompetence by his trial lawyer.

Seriously.

J C ModeFotografie wrote:
It's time for him to contact http://www.ACLU.org (or similar organization) for his plea.

Seriously, it sounds like HE JUST BENT OVER AND SPREAD HIS OWN CHEEKS!!!

Well.... he should be out of prison now. It is 6 years later.

Although this case is interesting: http://www.firstamendmentcenter.org/news.aspx?id=3745

A completely opposite ruling.

So you see, we could go on about this all day... or for the next few days. nature of the forums.

Have Pentax Will Travel wrote:

Your Joe The Plumber guy apparently wasn't shooting on assignment or for any reason other than recreation. The work wasn't going to the press, into a theater, immediately sent to a modeling agency, or scheduled for a gallery show. It wasn't really speech, because it wasn't intended to be expressed. That's the perversion, I think. That literally is where people get into trouble. If you aren't expressing something with the work, there isn't much point to it, you just committed to the act of taking a photo to be committing the act of taking a photo. I think the lesson from this story is, if you live in a town dominated by a religious cult (I'm looking at you, Christianity!), you need to be aware that there may be a serious social rejection of your work.

I take your point but whooooooooa!!!

So its not art or lacking merit if it is not "going to the press, into a theater, immediately sent to a modeling agency, or scheduled for a gallery show" ???

That can't be the case.  If I put the photo on my wall or on my fridge it has no less merit than if "Joe the Plumber" sells it for 10,000 at a gallery! 

Again, I know what you are saying.....  but a tree that falls in woods that no one saw or heard still fell!  An artistic piece created by me that never sees the light of day is still art.

c_d_s wrote:

Please provide the federal law that says anything about written consent from a parent/guardian giving you permission to shoot a minor nude, or anything about coercion of the minor.

It's in the new stimulus package!

bencook2 wrote:
So its not art or lacking merit if it is not "going to the press, into a theater, immediately sent to a modeling agency, or scheduled for a gallery show" ???

That can't be the case.  If I put the photo on my wall or on my fridge it has no less merit than if "Joe the Plumber" sells it for 10,000 at a gallery! 

Again, I know what you are saying.....  but a tree that falls in woods that no one saw or heard still fell!  An artistic piece created by me that never sees the light of day is still art.

The question is, can you prove that in court. It's much easier when you have the art world or a third party behind you.

If you have a spare bedroom full or nude pictures of young teenagers, and it is a horde, versus waiting for publication, that would make a huge difference in a legal defense if your house got raided and you were brought up on charges for child pornography. If the cops confiscated 10,000 nudes and 50 rejection letters from publishers, that's still probably better than just the 1,000 nudes alone. Wouldn't you agree?

Have Pentax Will Travel wrote:

The question is, can you prove that in court. It's much easier when you have the art world or a third party behind you.

If you have a spare bedroom full or nude pictures of young teenagers, and it is a horde, versus waiting for publication, that would make a huge difference in a legal defense if your house got raided and you were brought up on charges for child pornography. If the cops confiscated 10,000 nudes and 50 rejection letters from publishers, that's still probably better than just the 1,000 nudes alone. Wouldn't you agree?

I would agree...

But, any "expert" witness that suggested marketability is an indicator for artistic merit would be on my shit list.  I do see how a prosecuting attorney would confuse marketability with merit... but not an artist.

BTW I am glad you started this topic.  Very interesting.  Despite the normal "noise" there are some serious nuggets in this post that can help photographers.  In fact, an attentive photographer would be able to ask a few posters for some good information privately if they were so inclined!!!

SunArcher - Shreveport wrote:

For the umpteen millionth time: NO. IT. IS. NOT.

JoJo, you know I love you. You know I respect you. But nudes of people under 18 are not inherently illegal. Heck, even 18 USC 2256 defines when it is. And it's not "all of the time."

Let the fearmongering continue. Me, I'd rather educate myself than give in to the utter paranoia that is pervasive in these forums when it comes to the nekkidness. And until we ALL educate ourselves and not become sheep following the crowd, such fearmongering, ignorance, and misinformation will continue, and we as a country will continue to live in the Stone Age when it comes to being naked and being photographed.

Word.  While not an attorney, I've spoken with some and read the law myself, and it seems that three things should happen: The parent must give permission, the photo must not show the minor in a sexual situation or be overly suggestive, and the photographer had better damn well have signatures, copies of ID's and documentation.

PashaPhoto wrote:

do you really think that this discussion is about pics a parent takes of their kid taking a bath?

In point of fact, during the height of the child abuse hysteria in the eighties, a woman in Ohio was tried and imprisoned for taking photos of her twin toddlers in a bathtub together. But another was charged and acquitted for taking pictures of her infant in a bath. Of course, Wal Mart turned both in when they had the film developed.

The law pretty much means what the crusading DA wants it to, until you get in front of a jury. 90% of the time, it seems, the judge will side with the DA.

bsp studios wrote:

*****

THERE IS AN IMPORTANT ISSUE EVERYONE IS MISSING HERE.... YES AMERICA HAS SOME VERY CONSERVATIVE LAWS REGARDING MINORS... BUT FOR EVERY LAW WE HAVE THERE ARE THOUSANDS OF OLDER MEN THAT WANT TO TAKE ADVANTAGE OF YOUNG WOMEN... MORE SO THEN OVERSEAS... IT IS THE WAY IT IS...AND WILL ALWAYS BE...!

I don't know that this is true. There are lots of Asian markets specifically for 'older men to take advantage' of children. I doubt that all the customers are American. I imagine this is true in other parts of the world as well. We just talk about our shit more than other countries.