Forums > Photography Talk > your art; their obscenity; and 2257 records
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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

There has been, over time here, much discussion of 2257 records for perceived "non-sexual" images such as art nudes. This post is not about such record keeping per se but may serve to illustrate the critical failing of the opinion stated by many that "my art is merely nude and it is certainly not obscene/porn" so I don't need to comply with 2257.

In a published discussion about an old case, first amendment lawyer Lawrence Walters, who is known as something of a powerhouse in that field, made an interesting comment:

"... Keep in mind, however, that the Miller Test does contemplate that non-sexually explicit images can be obscene.

For example, the threshold test to determine whether the Miller Test applies is whether the materials depict sexual activity or contain a lewd display of the genitals. The government can therefore charge, as obscene, Hustler-style nude images – requiring the defendant to defend based on the other elements of the Miller Test, i.e., that the images are not patently offensive, do not appeal to the prurient interest (based on community standards) and contain serious artistic literary political or scientific value. ..."

- - - Lawrence Walters, ANATOMY OF AN OBSCENITY PROSECUTION: THE TAMMY ROBINSON CASE STUDY

Interesting, as he seems to say that almost any image depicting non-sexual nudity at any level, and even perhaps some non-nude images, COULD be charged as obscene, depending on the level of tolerance, or rather non-tolerance, in the jurisdiction bringing the charge... and maybe, or especially, if the Sheriff, or Police chief, happens to be known locally as Bubba or Billy-Joe.

Makes an interesting case for obtaining and keeping the appropriate 2257 records even when you think they may not be necessary. Such records could very well have to form part of your defense, ESPECIALLY if there is ANY doubt about the identity and age of your model.

Studio36

Jun 07 11 02:20 am Link

Photographer

Fashion Photographer

Posts: 14388

London, England, United Kingdom

studio36uk wrote:
There has been, over time here, much discussion of 2257 records for perceived "non-sexual" images such as art nudes. This post is not about such record keeping per se but may serve to illustrate the critical failing of the opinion stated by many that "my art is merely nude and it is certainly not obscene/porn" so I don't need to comply with 2257.

In a published discussion about an old case, first amendment lawyer Lawrence Walters, who is known as something of a powerhouse in that field, made an interesting comment:


Interesting, as he seems to say that almost any image depicting non-sexual nudity at any level, and even perhaps some non-nude images, COULD be charged as obscene, depending on the level of tolerance, or rather non-tolerance, in the jurisdiction bringing the charge... and maybe, or especially, if the Sheriff, or Police chief, happens to be known locally as Bubba or Billy-Joe.

Makes an interesting case for obtaining and keeping the appropriate 2257 records even when you think they may not be necessary. Such records could very well have to form part of your defense, ESPECIALLY if there is ANY doubt about the identity and age of your model.

Studio36

I think that it's possible to overestimate the significance of 2257. Sure, it's really strict on paper, but it's a regulatory provision ostensibly aimed at large production companies.

I appreciate that inadequate compliance is, on paper, a risk, but in reality, in the absence of the images in and of themselves being unlawful, I would put forward the view that the worst case scenario for most on modelmayhem for inadequate compliance is a friendly letter from the relevant agency, offering tips.

I also think that a modicum of common sense is needed in relation to obscenity, taking into account the context of the images in question, rather than the strict letter of the law.

Jun 07 11 02:30 am Link

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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

David-Thomas wrote:
I think that it's possible to overestimate the significance of 2257. Sure, it's really strict on paper, but it's a regulatory provision ostensibly aimed at large production companies.

I appreciate that inadequate compliance is, on paper, a risk, but in reality, in the absence of the images in and of themselves being unlawful, I would put forward the view that the worst case scenario for most on modelmayhem for inadequate compliance is a friendly letter from the relevant agency, offering tips.

Don't misunderstand me here Dave, I am speaking to a local jurisdiction attempting to bring charges under state law, NOT a federal obscenity case.

Florida, for example, has an extensive STATE obscenity statute on the books, and the Sheriff in at least one "God fearing" county - Polk county - is on a "mission to do the Lord's work" to rid the county of obscenity. The case noted in Larry's paper originated there and in the last few days another similar case has been started against a local couple producing clearly vanilla flavoured adult material, in their home, that would not likely raise even an eyebrow anywhere else.

As to 2257? It is aimed directly at ANY and EVERY producer. Large, small or in-between. The statute and the Regulations make no distinction.

Studio36

Jun 07 11 02:38 am Link

Photographer

Fashion Photographer

Posts: 14388

London, England, United Kingdom

studio36uk wrote:

Don't misunderstand me here Dave, I am speaking to a local jurisdiction attempting to bring charges under state law, NOT a federal obscenity case.

Florida, for example, has an extensive STATE obscenity statute on the books, and the Sheriff in at least one "God fearing" county - Polk county - is on a "mission to do the Lord's work" to rid the county of obscenity. The case noted in Larry's paper originated there and in the last few days another similar case has been started against a local couple producing clearly vanilla flavoured adult material, in their home, that would not likely raise even an eyebrow anywhere else.

Studio36

I see ; that makes sense then smile

Jun 07 11 02:39 am Link

Photographer

Robert Lynch

Posts: 2509

Bowie, Maryland, US

I am confused as to your intent here.  What sort of charges are you saying that 2257 records would be used as a defense against?  That a model was of age when the image was created?  Of course.  That the image is obscene?  I could see the keeping of 2257 records being twisted in some locations as a tacit admission of obscenity, because they allegedly wouldn't be needed if the images were "art".

Jun 07 11 02:39 am Link

Photographer

- Phil H -

Posts: 26525

Mildenhall, England, United Kingdom

studio36uk wrote:
There has been, over time here, much discussion of 2257 records for perceived "non-sexual" images such as art nudes. This post is not about such record keeping per se but may serve to illustrate the critical failing of the opinion stated by many that "my art is merely nude and it is certainly not obscene/porn" so I don't need to comply with 2257.

In a published discussion about an old case, first amendment lawyer Lawrence Walters, who is known as something of a powerhouse in that field, made an interesting comment:


Interesting, as he seems to say that almost any image depicting non-sexual nudity at any level, and even perhaps some non-nude images, COULD be charged as obscene, depending on the level of tolerance, or rather non-tolerance, in the jurisdiction bringing the charge... and maybe, or especially, if the Sheriff, or Police chief, happens to be known locally as Bubba or Billy-Joe.

Makes an interesting case for obtaining and keeping the appropriate 2257 records even when you think they may not be necessary. Such records could very well have to form part of your defense, ESPECIALLY if there is ANY doubt about the identity and age of your model.

Studio36

Added to resource sticky - http://www.modelmayhem.com/po.php?threa … st15495360

Jun 07 11 02:39 am Link

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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

Robert Lynch wrote:
I am confused as to your intent here.  What sort of charges are you saying that 2257 records would be used as a defense against?  That a model was of age when the image was created?  Of course.  That the image is obscene?  I could see the keeping of 2257 records being twisted in some locations as a tacit admission of obscenity, because they allegedly wouldn't be needed if the images were "art".

I am not making any direct connection other than as an issue of prosecuting there is often charge stacking, and in defending in such a case, the records foreclose at least one additional possible charge that the model could have been, might have been, is, underage. That might prove particularly important where the model's face or even most of their body is not included in the image(s) as seems to happen with regularity in art images.

Unlike ordinary run-of-the-mill porn that has a 1st Amendment protection if it passes the Miller Test, obscenity has no legal protection; nor does child pornography; but alleged obscenity + an alleged underage model = alleged child porn. That is "charge stacking" at work. Having adequate records, 2257 records, in fact, eliminates the possibility of a prosecutor successfully making that linkage.

Studio36

Jun 07 11 02:48 am Link

Photographer

Celluloid Visions

Posts: 1511

West Yellowstone, Montana, US

studio36uk wrote:
There has been, over time here, much discussion of 2257 records for perceived "non-sexual" images such as art nudes. This post is not about such record keeping per se but may serve to illustrate the critical failing of the opinion stated by many that "my art is merely nude and it is certainly not obscene/porn" so I don't need to comply with 2257.

In a published discussion about an old case, first amendment lawyer Lawrence Walters, who is known as something of a powerhouse in that field, made an interesting comment:


Interesting, as he seems to say that almost any image depicting non-sexual nudity at any level, and even perhaps some non-nude images, COULD be charged as obscene, depending on the level of tolerance, or rather non-tolerance, in the jurisdiction bringing the charge... and maybe, or especially, if the Sheriff, or Police chief, happens to be known locally as Bubba or Billy-Joe.

Makes an interesting case for obtaining and keeping the appropriate 2257 records even when you think they may not be necessary. Such records could very well have to form part of your defense, ESPECIALLY if there is ANY doubt about the identity and age of your model.

Studio36

I guess I'm not seeing your point. Based on the quote you offered, he states that lewd display of the genitals can be charged as well as images depicting sexual activity, however I see no mention of, or inference to nudity at any level nor non-nude images as you suggest. Maybe you failed to give us the entire passage, but based on this example proffered, I'll have to disagree.

Jun 07 11 02:54 am Link

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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

Michael Gottlieb wrote:
I guess I'm not seeing your point. Based on the quote you offered, he states that lewd display of the genitals can be charged as well as images depicting sexual activity, however I see no mention of, or inference to nudity at any level nor non-nude images as you suggest. Maybe you failed to give us the entire passage, but based on this example proffered, I'll have to disagree.

As for non-nude images incorporating a lascivious display of the genitals one genre immediately comes to mind... camel toe shots even though the model's genitals are is covered, by shorts, underwear or a swimsuit. The precedent for that is set out in US v. Knox and is the subject matter, in part, of the Dost Test, which, in turn, is a standard now applied to 2257 record keeping requirements.

If some local yahoo sheriff or prosecutor decides it's obscene, then you could find yourself, ... and if she is, or even looks, God help you, underage ... well and truly on the hook.

Studio36

Jun 07 11 03:03 am Link

Photographer

DC Photo - Inactive

Posts: 4949

Trenton, New Jersey, US

Dost and Miller are both detailed in 2256, and correct me if I'm wrong but isn't 2256 now considered unconstitutional?

2257 directly mentions 2256 as a way to distinguish between what is "lewd" etc and what is not, and according to Westlaw 2256 is now considered unconstitutional, and therefore, no longer applicable in a court of law.

As I said, CORRECT ME if I'm wrong, but if I'm right, where does that leave things?

Jun 07 11 03:09 am Link

Photographer

Nico Simon Princely

Posts: 1972

Las Vegas, Nevada, US

2257 as I understand it only has to do with Age and sexual images/video not anything relating to it being obscene. If you have a model pose nude you need to be 2257 compliant as a best practice.

I always take photo of every models ID even if t hey are full clothed. The reason is that in case I ever had one say I didn't not sign that release...I can say not only did she sign the release here's a picture of her holding her ID next to her face proving that she is who she said she is when she signed it.

Jun 07 11 03:14 am Link

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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

David Cajio Photography wrote:
Dost and Miller are both detailed in 2256, and correct me if I'm wrong but isn't 2256 now considered unconstitutional?

2257 directly mentions 2256 as a way to distinguish between what is obscene and what is not, and according to Westlaw 2256 is now considered unconstitutional.

As I said, CORRECT ME if I'm wrong, but if I'm right, where does that leave things?

No, §2256, is only the definitions for the chapter [Chapter 110 of Title 18 U.S.C.] and that part of that Title of the United States Code is very much alive and well. It sets out the entirety of the materials that are regulated by §2257 and §2257A, upon which the record keeping Regulations are based.

None of §§2256, 2257 or 2257A, or the Regulations, have been voided by the courts as unconstitutional.

Studio36

Jun 07 11 03:15 am Link

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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

Nico Simon Princely wrote:
2257 as I understand it only has to do with Age and sexual images/video not anything relating to it being obscene. If you have a model pose nude you need to be 2257 compliant as a best practice.

In A FEDERAL case obscenity [per se] and child pornography have no protection at all under the 1st. amendment. To be declared obscene at the FEDERAL level any particular work must fail ALL three prongs of the Miller Test. Ordinary porn, that is neither, and survives even one element of Miller, does have such protection.

Keep in mind, here, I am speaking to STATE statutes that can and are much broader in defining what is obscene in those jurisdictions notwithstanding what the feds might consider as such.

Studio36

Jun 07 11 03:26 am Link

Photographer

Celluloid Visions

Posts: 1511

West Yellowstone, Montana, US

studio36uk wrote:

As for non-nude images incorporating a lascivious display of the genitals one genre immediately comes to mind... camel toe shots even though the model's genitals are is covered, by shorts, underwear or a swimsuit. The precedent for that is set out in US v. Knox and is the subject matter, in part, of the Dost Test, which, in turn, is a standard now applied to 2257 record keeping requirements.

If some local yahoo sheriff or prosecutor decides it's obscene, then you could find yourself, ... and if she is, or even looks, God help you, underage ... well and truly on the hook.

Studio36

Okay, in that particular case I can see your point. However, I still think you are overreaching in your statement, "nudity at any level" if you are using his quote as an argument for your case. There are millions of nudes, art and otherwise, that do not show the genitals in any shape or form.

Jun 07 11 03:29 am Link

Photographer

DC Photo - Inactive

Posts: 4949

Trenton, New Jersey, US

studio36uk wrote:
No, §2256, is only the definitions for the chapter [Chapter 110 of Title 18 U.S.C.] and that part of that Title of the United States Code is very much alive and well. It sets out the entirety of the materials that are regulated by §2257 and §2257A, upon which the record keeping Regulations are based.

None of §§2256, 2257 or 2257A, or the Regulations, have been voided by the courts as unconstitutional.

Studio36

I just double-checked.  Westlaw, which is an extremely accurate reference for US Laws and Statutes, marks US 2256 in entirety ruled on as unconstitutional.

http://westlaw.com

Jun 07 11 03:30 am Link

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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

Michael Gottlieb wrote:
Okay, in that particular case I can see your point. However, I still think you are overreaching in your statement, "nudity at any level" if you are using his quote as an argument for your case. There are millions of nudes, art and otherwise, that do not show the genitals in any shape or form.

There are also many fetish style images that display various elements and levels of SM/BD imagery that are, nude or not, regulated by the definition in 18 USC §2256 and subject to the §§2257, 2257A record keeping requirements. Much of that stuff might be considered just a so-so passe' genre - quite legal under federal law - but believe me the same images could be found legally obscene under some state statutes.

Studio36

Jun 07 11 03:36 am Link

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studio36uk

Posts: 22898

Tavai, Sigave, Wallis and Futuna

David Cajio Photography wrote:
I just double-checked.  Westlaw, which is an extremely accurate reference for US Laws and Statutes, marks US 2256 in entirety ruled on as unconstitutional.

http://westlaw.com

You have to check the right part of the USC

28 USC also contians a §2256 which is, indeed, inoperable.

Re-check specifically  18 USC §2256. You will find it is alive and well.

If 18 USC §2256 was removed then EVERY OTHER SECTION of Chapter 110 would be inoperable... including §§2257, 2257A and all the rest in that chapter. I'm sure we all would have heard about that by now... there would be dancing in the streets.

Studio36

Have to depart for a couple of hours. Back later if you want to continue.

Jun 07 11 03:46 am Link

Photographer

Celluloid Visions

Posts: 1511

West Yellowstone, Montana, US

studio36uk wrote:

There are also many fetish style images that display various elements and levels of SM/BD imagery that are, nude or not, regulated by the definition in 18 USC §2256 and subject to the §§2257, 2257A record keeping requirements. Much of that stuff might be considered just a so-so passe' genre - quite legal under federal law - but believe me the same images could be found legally obscene under some state statutes.

Studio36

Okay, true., but that has nothing to do with the quote you used to defend your original assertion in this thread. 

"This post is not about such record keeping per se but may serve to illustrate the critical failing of the opinion stated by many that "my art is merely nude and it is certainly not obscene/porn" so I don't need to comply with 2257."

For many artists, that is a true statement and you have shown nothing here to contradict it.

Jun 07 11 03:53 am Link

Photographer

Jeffrey M Fletcher

Posts: 4733

Asheville, North Carolina, US

While I'm following your argument that many images which are not usually seen as being at risk for obscenity prosecution are, at least theoretically, at risk there is some specific language in the laws, which is also quoted by Lawrence, that would seem to place most art nudes outside of the scope of the 2257 requirements.

Here it is: "the threshold test to determine whether the Miller Test applies is whether the materials depict sexual activity or contain a lewd display of the genitals."

Similar wording occurs in the 2257 text and while "sexual activity" and "lewd display" are themselves terms with a wide latitude for  definition it does provide a bar.

Jun 07 11 03:53 am Link