Ken Marcus Studios wrote:
Since "Sexually Explicit Conduct" can be in the eye of the beholder, it is prudent to keep records even if you don't think that 2257 applies to what you are shooting.

Implied Bondage, for example may be considered tame is some circles and "Sexually Explicit Conduct" in others.

KM

I'm sorry you feel this way.  We finally have the actual words accompanied by actual DoJ policy.  Why isn't that enough to determine what we'll do going forward?

Ken Marcus Studios wrote:
Since "Sexually Explicit Conduct" can be in the eye of the beholder, it is prudent to keep records even if you don't think that 2257 applies to what you are shooting.

Implied Bondage, for example may be considered tame is some circles and "Sexually Explicit Conduct" in others.

KM

I have to agree.  There is so much that is subjective.  I think the OP (TXPhotog) is great for posting this, but most people's parnoia maybe justified, but clearly out of proportion.

Why not just keep a record of everything you do anyway?  You already should be collection release forms, which should always be accomplined with ID so keeping that in order with what was done and when isn't a big deal to me.  I already do that. 

If you are doing something shady anyway, you were not keeping records anyway so nothing changes for you.  MM, as a social networking site, probably isn't effected (I am not a lawyer, but I do want to play one on TV) so life goes on...

Keep taking pictures...
M

Gary Blanchette wrote:
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Geesh, I can post a photo of my wife cleaning out her ear with a Q-Tip and someone is bound to get off on it...

Not by your design, though.

MalameelPhoto wrote:

Why not just keep a record of everything you do anyway?  You already should be collection release forms, which should always be accomplined with ID so keeping that in order with what was done and when isn't a big deal to me.  I already do that.

But that does not come remotely close to what is required.  That's why I published the requirements.

Gary Blanchette wrote:
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Geesh, I can post a photo of my wife cleaning out her ear with a Q-Tip and someone is bound to get off on it...

If it happens to also include a prominent shot of her genitals, then perhaps you should consider keeping the records.

J Henry wrote:
I'm sorry you feel this way.  We finally have the actual words accompanied by actual DoJ policy.  Why isn't that enough to determine what we'll do going forward?

Because bondage is never actually mentioned in the regs.. just "sadistic and masochistic abuse".  Sadistic and masochistic have very specific meanings -- pertaining to the derivation of pleasure from the giving or receiving of pain.

Simply tying someone up is neither an expression (nor simulation) of sadism nor masochism.

To confuse matters.. from the Federal Register:

One comment requests that the Department define ``sadistic or
masochistic abuse'' because some people believe that safe and
consensual bondage is not abuse, and requests that the Department
distinguish between actual and simulated sadistic or masochistic abuse.
The Department declines to adopt this comment. That term is not a
subject of this rulemaking. Moreover, actual sexually explicit conduct
depends on the content of what is being displayed, not on whether the
content is subjectively considered to be abusive. If belief as to abuse
were to control, a producer who determined that nothing was abusive
would be able to avoid compliance with the regulations in their
entirety, creating massive opportunity for child exploitation.

So the example/comment discusses bondage in the context of "abuse".. but never in the context of sadism nor masochism (which are the specific terms used in USC chapter 18, 2256 -- http://www4.law.cornell.edu/uscode/html … -000-.html).

Peter Claver wrote:

J Henry wrote:
I'm sorry you feel this way.  We finally have the actual words accompanied by actual DoJ policy.  Why isn't that enough to determine what we'll do going forward?

Because bondage is never actually mentioned in the regs.. just "sadistic and masochistic abuse".  Sadistic and masochistic have very specific meanings -- pertaining to the derivation of pleasure from the giving or receiving of pain.

Simply tying someone up is neither an expression (nor simulation) of sadism nor masochism.

To confuse matters.. from the Federal Register:


So the example/comment discusses bondage in the context of "abuse".. but never in the context of sadism nor masochism (which are the specific terms used in USC chapter 18, 2256 -- http://www4.law.cornell.edu/uscode/html … -000-.html).

You're right, I see the confusion there.  I definitely see how the fetish community still needs to cover their legal asses.  Thanks for the explanation.

Ray Holyer wrote:
I was under the impression that previously 2257 did not apply to reference photographs taken for the purpose of producing paintings or drawings.  I understand that now 22257 does apply.  May I ask if this is correct?

I don't know, Ray.  Perhaps someone else has looked into that.

Ken Marcus Studios wrote:
Since "Sexually Explicit Conduct" can be in the eye of the beholder, it is prudent to keep records even if you don't think that 2257 applies to what you are shooting.

Implied Bondage, for example may be considered tame is some circles and "Sexually Explicit Conduct" in others.

KM

I completely agree with this.

This line
(v) lascivious exhibition of the genitals or pubic area of any person;

Combined with these definitions of lascivious exhibition
1) Whether the focal point of the visual depiction is on the child’s 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.

seems to include a lot of the work on here (at least from my perspective) I am going through the steps to come into compliance before march.


Thanks very much for posting this rundown TX it lays things out clearly.

TXPhotog wrote:
WHAT THIS APPLES TO:

Sexually explicit conduct:

“sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person; umm

Simulated sexually explicit conduct:   conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean not sexually explicit conduct that is merely suggested.

It is limited to pornography intended for sale or trade. 

MEANING OF “LASCIVIOUS DISPLAY OF THE GENITALS

(from the DoJ comments to the regulation):

Case law provides guidance as to the types of depictions that federal courts have considered to be lascivious exhibition of the genitals or pubic area, and the Department will rely on such precedent in the context of section 2257 investigations and prosecutions. The leading case is United States v. Dost, 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 child’s 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.


(NOTE: quoted in part)

I'm really starting to wonder if the common sense abilities have strayed off into the depths of dementia.

VIA US FEDERAL LAW; a "child" is under the Age of Majority.
(so it would seem that you only have to use due diligence to verify age. If the model appears near the age of majority, verification via picture ID is required...and only for those images meeting the criteria (see 1-4) otherwise do not apply. It's pretty fucking basic.

How hard is it to understand the the concern lies with 5 & 6. These 2 clauses are subjective at best and the gist of the issues at hand. And #6...jehbus!

There was an image of a model train entering a "Vagina Station"...some people had a sexual response, while others may had seen the literal commentary as editorial on rampant and indiscriminate sex or, even art...god forbid.

Some idiot will try to apply the application of 2257 to "sex sells" in GQ, ELLE, COSMO, etc....IN NOW WAY, can this be applied to glam shots! As written, this is doomed to epic failure. After all, some people just walk around everyday with a "come fuck me look"...you gonna stamp a 2257 on their head in Walmart Picture Center? For pete's sake..this is as smart and well written of a law, as our outgoing president, is another Albert Einstein or Jonah Salk.

Gary Blanchette wrote:
Geesh, I can post a photo of my wife cleaning out her ear with a Q-Tip and someone is bound to get off on it...

I believe it was Dennis Miller who said, "You can search for 'people having sex with goats on fire,' and the search engine will ask you to refine the query by asking, 'What breed of goat?'"

epo wrote:
seems to include a lot of the work on here

I take a less inclusive view of what falls within the 2257 ambit than some others (such as Ken) do, but I would agree that each producer needs to have an informed assessment of the requirements and how they apply to his work, and also assess the risks, and then decide what to do about it.  That's why I put this summary together - not to tell other people what their personal answers should be, but to give them the tools to form those personal answers intelligently.

My view is that at least some portion of the work on MM now does fall within the 2257 requirements currently, and more will after March 18th.  I haven't done much of a survey to make a statistical assessment, but certainly it's a non-trivial percentage.  I know of no case where the required label is with the photo.  There are some people here who are in violation of the law, in my opinion.

Rebel Photo wrote:

I'm really starting to wonder if the common sense abilities have strayed off into the depths of dementia.

VIA US FEDERAL LAW; a "child" is under the Age of Majority.
(so it would seem that you only have to use due diligence to verify age. If the model appears near the age of majority, verification via picture ID is required...and only for those images meeting the criteria (see 1-4) otherwise do not apply. It's pretty fucking basic.

How hard is it to understand the the concern lies with 5 & 6. These 2 clauses are subjective at best and the gist of the issues at hand. And #6...jehbus!

There was an image of a model train entering a "Vagina Station"...some people had a sexual response, while others may had seen the literal commentary as editorial on rampant and indiscriminate sex or, even art...god forbid.

Some idiot will try to apply the application of 2257 to "sex sells" in GQ, ELLE, COSMO, etc....IN NOW WAY, can this be applied to glam shots! As written, this is doomed to epic failure. After all, some people just walk around everyday with a "come fuck me look"...you gonna stamp a 2257 on their head in Walmart Picture Center? For pete's sake..this is as smart and well written of a law, as our outgoing president, is another Albert Einstein or Jonah Salk.

Maybe I'm reading this wrong, but aren't 1-6 subsections of "lascivious genitalia"?  So those criteria only apply when there's a focus on the crotch in the photo already?  Which, if I'm reading it right, makes it a fairly small number of photos.

Rebel Photo wrote:
How hard is it to understand the the concern lies with 5 & 6. These 2 clauses are subjective at best and the gist of the issues at hand. And #6...jehbus!

There was an image of a model train entering a "Vagina Station"...some people had a sexual response, while others may had seen the literal commentary as editorial on rampant and indiscriminate sex or, even art...god forbid.

Some idiot will try to apply the application of 2257 to "sex sells" in GQ, ELLE, COSMO, etc....IN NOW WAY, can this be applied to glam shots! As written, this is doomed to epic failure. After all, some people just walk around everyday with a "come fuck me look"...you gonna stamp a 2257 on their head in Walmart Picture Center? For pete's sake..this is as smart and well written of a law, as our outgoing president, is another Albert Einstein or Jonah Salk.

Apparently you haven't bothered to read that the criteria do not apply when there is not a substantial display of the genitals or pubic area - which isn't true in the typical Walmart Picture Center - and that these criteria are used as a whole, not as individual "fail on this one and it applies" form.

J Henry wrote:
Maybe I'm reading this wrong, but aren't 1-6 subsections of "lascivious genitalia"?  So those criteria only apply when there's a focus on the crotch in the photo already?  Which, if I'm reading it right, makes it a fairly small number of photos.

Yes, that is correct.

TXPhotog wrote:

Ray Holyer wrote:
I was under the impression that previously 2257 did not apply to reference photographs taken for the purpose of producing paintings or drawings.  I understand that now 22257 does apply.  May I ask if this is correct?

I don't know, Ray.  Perhaps someone else has looked into that.

That one is going to have to be dropped on one of the lawyer for a reading. The painting is certainly an iteration of a photograph but it is also transformative. As a painting alone it does not seem to be covered but where in Ray's case the source document is a photographic image. That is the question. And there seems to be no ready answer.

Studio36

Rebel Photo wrote:
VIA US FEDERAL LAW; a "child" is under the Age of Majority.
(so it would seem that you only have to use due diligence to verify age. If the model appears near the age of majority, verification via picture ID is required...and only for those images meeting the criteria (see 1-4) otherwise do not apply. It's pretty fucking basic.

No.  That is false.  Age verification is required for everyone who appears in a picture meeting the criteria, regardless of age.  Please read the regulations and the law.

TXPhotog wrote:

Yes, that is correct.

Cool.  Thanks.

TXPhotog wrote:

No.  That is false.  Age verification is required for everyone who appears in a picture meeting the criteria, regardless of age.  Please read the regulations and the law.

again WHAT CRITERIA (ref 5 & 6)?????? it's full of more holes that a turkey shoot target on Thanksgiving Day!

wait...


now that's sexy to somebody... O H  p l e a s e ........!

epo wrote:
Ok Im sure this is going to be a stupid question but I am going to ask it...

is there a legal definition of genatalia?  This does have to mean the same as it means medically correct? So photos focused on breasts or buttocks dont concern this law at all?

Seems that way.  TXPhoto confirmed that above.

Rebel Photo wrote:

again WHAT CRITERIA (ref 5 & 6)?????? it's full of more holes that a turkey shoot target on Thanksgiving Day!

wait...


now that's sexy to somebody... O H  p l e a s e ........!

No genitalia in the photo.  So 5 and 6 aren't a consideration.  Or 1-4.

Rebel Photo wrote:
wait...


now that's sexy to somebody... O H  p l e a s e ........!

Please do us all the favor of pointing the display of genitals in that picture.

IT'S NOT THERE.  THE PICTURE DOES NOT MEET THE CRITERIA FOR "LASCIVIOUS DISPLAY OF THE GENITALS."

Please  buy a clue.

Ken Marcus Studios wrote:
Since "Sexually Explicit Conduct" can be in the eye of the beholder, it is prudent to keep records even if you don't think that 2257 applies to what you are shooting.

Implied Bondage, for example may be considered tame is some circles and "Sexually Explicit Conduct" in others.

KM

Very true Ken, the same argument could be made for "inappropriate attire, considering the age".

CGI Images wrote:
Very true Ken, the same argument could be made for "inappropriate attire, considering the age".

Which is why the DoJ comments had the effect of excluding that criterion from their 2257 considerations.  Please see the OP.

epo wrote:
So using my xmas shoot because it is varied and available

These would fall under 2257


But these would not
18+ https://modelmayhem.com/pic.php?pid=9802938


Am I on the right track now?

I don't see how any of those would fall under it.  Which requirement do you think they fail to meet?

J Henry wrote:
I don't see how any of those would fall under it.  Which requirement do you think they fail to meet?

The top two the focus of them is clearly the pubic region for sexually suggestive purposes.  Isnt that lacivious display?  according to the above?  The genitalia dont actually have to be exposed if I understood things right?

PS this is why I am sticking with the for dummies thread, This whole thing makes me feel like a dummy

epo wrote:
PS this is why I am sticking with the for dummies thread, This whole thing makes me feel like a dummy

There are no dummies here. What there are are the uneducated, mal-informed and mis-informed. Learning is part of this whole process.

I don't blame a lot of folks who feel they have had this just dropped on them with no warning... because it has been... but the warning signs have been out there for the last two years. They have been mentioned here, they have been discussed here... and they have been summarily dismissed by many here to their, now, disadvantage.

The only viable option left is to learn and move ahead.

Studio36