TXPhotog wrote:
I doubt that there are right now, since until the publication of these regulations third parties were not allowed to be the custodians.  But look for them to make an appearance on the marketplace really quickly.  We just invented a whole new cottage industry.

I'm not happy about it. But at least it gives those who shoot from home a way to comply without having to rent a 10x10 office and hire someone to sit there 20hrs/wk for $7/hr.

AndrewFoto wrote:
I try to be as careful as possible.  my TPF model release is 2 pages for christ sake!  it has an 800 word release on the second page that clarifies uses, when pics are to be delivered, what they can and cannot do with them, that all information is correct, and even that all poses were done willingly.  I have them sign it at the beginning and initial a statement at the bottom after the shoot that says the agreement was read and signed before the shoot and everything went as specified.

None of that has anything to do with the 2257 requirements and, in fact, releases cannot be included in the 2257 records.

Lumigraphics wrote:
Hiring a qualified attorney to explain all of this is beyond our budgets.

And sometimes a complete waste of money. When I first started doing what I do, way back when I consulted with an entertainment lawyer. I had a ton of questions. Not about 2257, because it didn't exist yet.

Anyways, I asked all kinds of questions about what sort of records I should keep and I had specific questions about whether what I wanted to do was even legal. His answer still sticks with me this day.

"The only way to find out for sure is to try it. If you get into trouble, then call me"

I still can't believe that I paid for that advice.

TXPhotog wrote:

None of that has anything to do with the 2257 requirements and, in fact, releases cannot be included in the 2257 records.

I know.  I'm just speaking of my release (which, yes, is in a separate folder in the drawer) as a demonstration of trying to save my own ass by making sure everything is covered.  the release on my 2257 states that everything is correct and if not, the model is liable for his/her omissions and/or falsified information.  otherwise, as stated before, if it turns out to be false, you are liable to locate and take back all the material.  this way, the model is liable for any expenses incurred doing to.

TXPhotog wrote:
This is false.  Very false.  And it is typical of the massive over-reaction that many have shown in this thread.  There is a specific requirement in the law.  There is a specific test, used and validated by the courts, in the regulation.  By no means is the result of that law and that test even within the same zip code as your claim.

"The leading case is United States v. Dost, 636 F. Supp. 828 (S.D.
Cal. 1986), aff'd 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
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."

Look closely at number 6 - you, the photographer, are not the one who gets to define whether or not your photograph is "intended to elicit a sexual response in the viewer."

But rather than contributing to the "massive over-reaction," as you suggest, I'm merely pointing out the fact that if you publish pictures of models it behooves you to keep the proper records, which makes whether or not your work is considered "2257 work" a moot point.  (assuming your models are 18+)

Lumigraphics wrote:
The problems that many of us have:

The "lascivious" standard is totally opaque and we have no idea which images if any would be regulated.

Granted there are some very grey areas, but a lot of what people are getting all worked up about is unquestionably NOT included in the regulation.  It's not nearly as bad as many people here are claiming.  Not good, exactly, but not utterly horrible either.

Lumigraphics wrote:
We haven't been keeping compliant records up until now, so our past work is potential a problem with no easy way to fix it

The old regulations have been in existence for a long time.  Anything that showed actual explicit sexual activities needed the record keeping for over a decade.  Nothing new about that.  So if you don't have those records, you have been in violation of the law for a long time.

What is new is the requirement for images of simulated sex or lascivious display of the genitals to be covered under the regulations.  But good news:  for any of your old work, you don't need the records for those.  It's only for things produced after March 18, 2009.

Lumigraphics wrote:
There is no way to control distribution- what happens if one of your pictures is stolen and when later displayed online, doesn't have the 2257 stuff? What about images sold as stock etc, especially out of the US (in may case, iStock)? What about images posted by a model?

Not your problem.  The "secondary producers" would have to keep those records.

Lumigraphics wrote:
What about image thumbs shown by Google (which they can do under fair use) or other uncontrollable usage?

Again, not your problem.  If you have properly labeled the images you put on the web, and google doesn't pick up the label, you have no liability.

Lumigraphics wrote:
We can't easily be available 20 hours a week for inspections.

Then have someone else, who keeps regular office hours, be the custodian.  You don't have to do it.

Barney D - FSP wrote:
Ok. I'm trying to understand, but this is what I'm hearing:

Because really any picture involving any human being could in some skewed sense be considered lascivious, I need to keep a record organized by last name of anyone I shoot, including a picture/photocopy of their driver's license(or similar), a copy of any URL the pictures can be found at, and if possible a document saying the model's supplied information is accurate signed by the model. I don't do nudes/fetish/etc so it shouldn't ever come up, but if it does I'll be prepared.

Is this correct?

If you publish said image, yes

John Jebbia wrote:
Ok, the question I would truly like answered is are there services offering to act as the custodian of records. I googled, but didn't come up with anything.

There is both and answer and, at the same time, a non-answer to that John - as of, say, today.

Before 2005 the regulations allowed third party custodians; when the regs were revised in 2005 the permission to have third party custodians was removed and the recordkeeping became only and solely the responsibility of the producer or secondary producer; in this new version of the regulations the DoJ has reinstated the ability to use third party custodians [who must be non-employees - vis contract services].

Right at this minute there are few if any who have a set-up to handle records as third party custodians. I will guarantee you, however, that there will be some at least by the time this set or regulations comes fully into effect. Keep in mind that we have been talking about the date of 18 March 2009 for the new work covering the new categories, but the regulations for existing adult businesses actually come into force in Jan 2009. I expect there will be some names available within the next few weeks to a month.

Studio36

JustOwen wrote:

"The leading case is United States v. Dost, 636 F. Supp. 828 (S.D.
Cal. 1986), aff'd 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
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."

Look closely at number 6 - you, the photographer, are not the one who gets to define whether or not your photograph is "intended to elicit a sexual response in the viewer."

But rather than contributing to the "massive over-reaction," as you suggest, I'm merely pointing out the fact that if you publish pictures of models it behooves you to keep the proper records, which makes whether or not your work is considered "2257 work" a moot point.  (assuming your models are 18+)

How many times is "child" used in the Dost test?

John Jebbia wrote:
And has anyone ever been prosecuted under 2257?

Check this page:
http://en.wikipedia.org/wiki/Child_Prot … cement_Act

John Jebbia wrote:
And has anyone ever been prosecuted under 2257?

I don't know how accurate this is, I read it on Wikipedia:

"At present, the Department of Justice has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against Mantra Films, Inc., based in Santa Monica, California, and its sister company MRA Holdings (both owned by Joe Francis), who are the originators of the Girls Gone Wild video series. Francis and several of his managers were prosecuted, citing infractions of this act.[3] In January 2007, these charges were for the most part dropped.[4]"

http://en.wikipedia.org/wiki/Child_Prot … lations.29

Zopilote wrote:
How many times is "child" used in the Dost test?

EXACTLY!!  Which is why the government is putting the burden on us to prove that our models are not children.  The implication being that if anybody could possibly construe your photograph as being sexually arousing, it behooves you to maintain the proof that that particular model is not under 18 - the simple point I have been making throughout this thread.

JustOwen wrote:
"The leading case is United States v. Dost, 636 F. Supp. 828 (S.D.
Cal. 1986), aff'd 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
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."

Look closely at number 6 - you, the photographer, are not the one who gets to define whether or not your photograph is "intended to elicit a sexual response in the viewer."

You are completely misunderstanding what the Drost Test is about.

1.  For purposes of 2257, it applies only to "lascivious display of the genitals".  If the genitals aren't displayed, the picture does not meet the Drost Test. 

2.  The test is meant to be used as a whole.  If the picture, on balance and considering ALL of the criteria, is pornographic, then the test is met.  But to focus only on one criterion, such as number 6, is a misapplication of the test.

JustOwen wrote:
But rather than contributing to the "massive over-reaction," as you suggest, I'm merely pointing out the fact that if you publish pictures of models it behooves you to keep the proper records, which makes whether or not your work is considered "2257 work" a moot point.  (assuming your models are 18+)

1,  2257 records need to be kept on all qualifying images, regardless of the age of the model, not just when they are over or under 18.

2. Yes, you are perpetrating a massive over-reaction based on a thorough misunderstanding of the law and the regulations.  The scope of included images is vastly less than your claim.

John Jebbia wrote:
So, I have a question.. Are there commercial services that offer to be the custodian of records? If not.. sounds like a business op.

If you search for "2257 database" you'll get lots of hits.  This is software that you can buy and run on your computer to manage/index/sort all your 2257 data.  I think it will be pretty easy for somebody that does web programming to create a web interface for one of these programs, put it on a server, and offer an online pay service to manage your 2257 information.

Barney D - FSP wrote:
Ok. I'm trying to understand, but this is what I'm hearing:

Because really any picture involving any human being could in some skewed sense be considered lascivious, I need to keep a record organized by last name of anyone I shoot, including a picture/photocopy of their driver's license(or similar), a copy of any URL the pictures can be found at, and if possible a document saying the model's supplied information is accurate signed by the model. I don't do nudes/fetish/etc so it shouldn't ever come up, but if it does I'll be prepared.

Is this correct?

JustOwen wrote:
If you publish said image, yes

Complete, utter bullshit.  Stark raving, foaming at the mouth bullshit.  Rabble rousing "raise the alarm" bullshit.

If you aren't capable of reading the law and understanding what it means, please consult someone who is before giving any scary wildly misleading advice.  The net effect of the false things you are saying is to perpetrate precisely the chilling effect on photography that the right wing zealots who wrote this law intended.

There are limits. Most of the images on MM WOULD NOT require 2257 record-keeping or labeling.  That you do not understand that simply shows that you should not be commenting on the issue, particularly in such an inflamatory way.

Lumigraphics wrote:
The problems that many of us have:

The "lascivious" standard is totally opaque and we have no idea which images if any would be regulated.

We haven't been keeping compliant records up until now, so our past work is potential a problem with no easy way to fix it

No. The new recordkeeping requirements, for the new categories, will only apply to work created on or after 18 March 2009. Anything earlier will be exempt.

Lumigraphics wrote:
There is no way to control distribution- what happens if one of your pictures is stolen and when later displayed online, doesn't have the 2257 stuff? What about images sold as stock etc, especially out of the US (in may case, iStock)? What about images posted by a model? What about image thumbs shown by Google (which they can do under fair use) or other uncontrollable usage?

Once the work passes out of your control the person in control of it becomes responsible for the records. Thus, if your images are infringed and reposted to another site without your license, or even knowledge, then the infringer becomes liable.

Studio36

John Jebbia wrote:
"The only way to find out for sure is to try it. If you get into trouble, then call me"

I still can't believe that I paid for that advice.

Hell, John, we could have told you that... and for free. ROTFLMAO

Studio36

TXPhotog wrote:
2. Yes, you are perpetrating a massive over-reaction based on a thorough misunderstanding of the law and the regulations.  The scope of included images is vastly less than your claim.

That's fine, hide your head in the sand if you wish.  I personally don't see it as a burden to keep the required records on all my models and I advise other photographers to do the same.

JustOwen wrote:
EXACTLY!!  Which is why the government is putting the burden on us to prove that our models are not children.  The implication being that if anybody could possibly construe your photograph as being sexually arousing, it behooves you to maintain the proof that that particular model is not under 18 - the simple point I have been making throughout this thread.

No.  False.  Bullshit.  The fact that an image is "sexually arousing" DOES NOT MAKE IT FALL UNDER 2257.  Please stop with this outrageous claim.

JustOwen wrote:
That's fine, hide your head in the sand if you wish.  I personally don't see it as a burden to keep the required records on all my models and I advise other photographers to do the same.

So you do, in fact, keep a record of the URL of every use you have made on the Internet, and cross reference it to a searchable database of every model you have ever shot?  Your records include every stage name and alias of every model?  You put 2257 labels on every image you publish?  You have these records in a separate location, apart from all other records, and they are available during 9-5 business hours, Monday through Friday, at least 20 hours a week?

Really?  You do all that for each and every model you shoot?

If you really believe that all your images fall within the ambit of 2257, that (and more) is what is required.  And you are telling people, with a straight face, that they have to do all that for every picture with a person in it?

Wow!  Just Wow!

Edit:  I just checked your MM port.  None - not one - of the images in it meets the labeling requirement of 2257.  If, in fact, they are within the ambit of 2257 as you claim, you are guilty of a federal felony.

TXPhotog wrote:
There are limits. Most of the images on MM WOULD NOT require 2257 record-keeping or labeling.

I understand that, but the way the law is worded it seems like a good idea to keep records anyway, so there is never an issue. It wouldn't be the first time a stupid bit of language made precedence.

If I am missing something, please, enlighten us.

TXPhotog wrote:

Lumigraphics wrote:
The problems that many of us have:

The "lascivious" standard is totally opaque and we have no idea which images if any would be regulated.

Granted there are some very grey areas, but a lot of what people are getting all worked up about is unquestionably NOT included in the regulation.  It's not nearly as bad as many people here are claiming.  Not good, exactly, but not utterly horrible either.

Lumigraphics wrote:
We haven't been keeping compliant records up until now, so our past work is potential a problem with no easy way to fix it

The old regulations have been in existence for a long time.  Anything that showed actual explicit sexual activities needed the record keeping for over a decade.  Nothing new about that.  So if you don't have those records, you have been in violation of the law for a long time.

What is new is the requirement for images of simulated sex or lascivious display of the genitals to be covered under the regulations.  But good news:  for any of your old work, you don't need the records for those.  It's only for things produced after March 18, 2009.

Lumigraphics wrote:
There is no way to control distribution- what happens if one of your pictures is stolen and when later displayed online, doesn't have the 2257 stuff? What about images sold as stock etc, especially out of the US (in may case, iStock)? What about images posted by a model?

Not your problem.  The "secondary producers" would have to keep those records.

Lumigraphics wrote:
What about image thumbs shown by Google (which they can do under fair use) or other uncontrollable usage?

Again, not your problem.  If you have properly labeled the images you put on the web, and google doesn't pick up the label, you have no liability.


Then have someone else, who keeps regular office hours, be the custodian.  You don't have to do it.

Again, no problem with this. I already do 90% of it except for the photocopy of IDs. I photograph them. I also don't get all their aliases, but will start. I object to the 20 hours a week I have to stay home from work. Most of us can't afford a custodian of records. I don't make a penny from this. This is not commerce for me.

John Jebbia wrote:
So, I have a question.. Are there commercial services that offer to be the custodian of records? If not.. sounds like a business op.

Hmm.. I have a fire safe filing cabinet and loads of time.. 

Barney D - FSP wrote:
I understand that, but the way the law is worded it seems like a good idea to keep records anyway, so there is never an issue. It wouldn't be the first time a stupid bit of language made precedence.

If I am missing something, please, enlighten us.

Hey, if you want to keep records on every picture, go for it.  It's extremely burdensome.  Are you labeling your pictures when you use them on MM, as required by 2257?  No.  Why not?  The law requires it for all pictures that meet the requirements for 2257 record-keeping.

Le Beck Photography wrote:
Again, no problem with this. I already do 90% of it except for the photocopy of IDs. I photograph them. I also don't get all their aliases, but will start. I object to the 20 hours a week I have to stay home from work. Most of us can't afford a custodian of records. I don't make a penny from this. This is not commerce for me.

Note:  the FBI and Department of Justice don't care whether you can afford a custodian or not.  There is no exemption for "I can't afford to do it".  Object all you want, but it doesn't relieve you from the legal requirements.

TXPhotog wrote:
Edit:  I just checked your MM port.  None - not one - of the images in it meets the labeling requirement of 2257.  If, in fact, they are within the ambit of 2257 as you claim, you are guilty of a federal felony.

Of course not.  it is not yet required.  Now who is over-reacting?

Look, yes, perhaps I am overstating, but boil it down and here is all I am saying.

a) Regardless of the litmus test for 2257, if it ever were to come down to a prosecution (which i'm guessing is a only a very remote possibility for any of us) it is not the artist/photographer who gets to decide whether or not his or her work is or is not 2257 work. 

b) if the proper records are kept and the requisite information is posted, whether or not it is 2257 work is a moot point.  (unless it is a child)

3) the record keeping and publishing requirements are not a huge burden - in other words, it's no BFD to cover your ass.

4)  the sky is not falling

5) Chill the fuck out!

Barney D - FSP wrote:
I understand that, but the way the law is worded it seems like a good idea to keep records anyway, so there is never an issue. It wouldn't be the first time a stupid bit of language made precedence.

If I am missing something, please, enlighten us.

TXPhotog wrote:
Hey, if you want to keep records on every picture, go for it.  It's extremely burdensome.  Are you labeling your pictures when you use them on MM, as required by 2257?  No.  Why not?  The law requires it for all pictures that meet the requirements for 2257 record-keeping.

There are four possibilities to consider:

* Keep full records on every model and every image [probably not practical without a staff]

* Keep PARTIAL records on every model and every image [e.g. the disclosure data and copies of the ID but without full blown cross indexing] [a rational proactive practice if you want to, but not mandatory to do so]

* Keep records on anything that is in doubt as to whether they are required or not [probably good proactive practice if you have the time and resources exactly because though you may see the doubt someone else may just require the records anyway for a CYA e.g. a publisher]

* Keep FULL cross-indexed FORMAL records on any work that you are sure requires them [mandatory]

Studio36

Barney D - FSP wrote:
I understand that, but the way the law is worded it seems like a good idea to keep records anyway, so there is never an issue. It wouldn't be the first time a stupid bit of language made precedence.

If I am missing something, please, enlighten us.

This is a good question to ask TXPhotog, he seems to be the authority on this legislation.

JustOwen wrote:

This is a good question to ask TXPhotog, he seems to be the authority on this legislation.

Answered above X2 times

Studio36

Weldphoto wrote:
As I said on the other thread, all this talk here will do nothing to change a law. If you don't like the law, then tell your lawmaker. He or she is elected to serve not to dictate. The police have the right to have a search warrant issued on the suspicion that you are involved in child porn, a mere rumor can trigger it. Then your entire computer system, drives, disks, storage devices as well as any prints, slides, negatives can be taken to be used as potential evidence should anything be found that they consider possible child porn. They can and will take your cell phone if it is capable to taking pictures. When they get around to viewing all your pictures is anyone's guess. In the meantime you have no way to retrieve your pictures. You are sunk until one fine day they decide the rumor was an error, that the pictures of your children in the tub were just that and they deem you not to be a child pornographer. Then you may get back your equipment. In what condition is anyone's guess.
The way to end this kind of law which really does little to protect our children, is to put pressure on the members of Congress. Write yours and ask for an explanation of this law. I suspect most have no idea what it says. Then tell them to get rid of it. If Congress were swamped, as this thread is, with letters and demands for understanding, they might be a bit more careful about what they pass.
To say, oh, well its not all that much trouble etc. is a total cop-out.
WRITE TO YOUR CONGRESSMAN/WOMAN IF YOU WANT A CHANGE. IT WON'T HAPPEN HERE.

This is an interesing paranoid rant.  Though there is some truth to it, such as the fact that, given a valid warrant, the police can and most likely will confiscate your computer, external drives, prints, cell phones, etc.; and you probably won't see them for a long time - contrary to popular paranoid belief, the police cannot obtain a warrant on "suspicion" or "mere rumor", it takes a lot more, a whole lot more than that.

Weldphoto wrote:
As I said on the other thread, all this talk here will do nothing to change a law. If you don't like the law, then tell your lawmaker. He or she is elected to serve not to dictate. The police have the right to have a search warrant issued on the suspicion that you are involved in child porn, a mere rumor can trigger it. Then your entire computer system, drives, disks, storage devices as well as any prints, slides, negatives can be taken to be used as potential evidence should anything be found that they consider possible child porn. They can and will take your cell phone if it is capable to taking pictures. When they get around to viewing all your pictures is anyone's guess. In the meantime you have no way to retrieve your pictures. You are sunk until one fine day they decide the rumor was an error, that the pictures of your children in the tub were just that and they deem you not to be a child pornographer. Then you may get back your equipment. In what condition is anyone's guess.
The way to end this kind of law which really does little to protect our children, is to put pressure on the members of Congress. Write yours and ask for an explanation of this law. I suspect most have no idea what it says. Then tell them to get rid of it. If Congress were swamped, as this thread is, with letters and demands for understanding, they might be a bit more careful about what they pass.
To say, oh, well its not all that much trouble etc. is a total cop-out.
WRITE TO YOUR CONGRESSMAN/WOMAN IF YOU WANT A CHANGE. IT WON'T HAPPEN HERE.

Unfortunately, photographers are a very small percentage of their constituency.

Weldphoto wrote:
As I said on the other thread, all this talk here will do nothing to change a law........
The way to end this kind of law which really does little to protect our children, is to put pressure on the members of Congress. Write yours and ask for an explanation of this law. I suspect most have no idea what it says. Then tell them to get rid of it. If Congress were swamped, as this thread is, with letters and demands for understanding, they might be a bit more careful about what they pass.
To say, oh, well its not all that much trouble etc. is a total cop-out.
WRITE TO YOUR CONGRESSMAN/WOMAN IF YOU WANT A CHANGE. IT WON'T HAPPEN HERE.

My congressperson is too busy and has voicemail on.

"Hi. This is your congress person. Thank you for my safe re-election by an 80/20 margin and remember I will continue to speak and fight for you.

I'm away from my phone right now but my staff will answer all your calls after the new year.

I'm currently hard at work at the Rtiz Carlton in Monte Carlo listening to presentations from UBS and Barclays about their next trillion dollar bailout request expected around Valentines Day 2009.

I'll be putting up a full report from this meeting on my website, gofuckyourself.com, when I return."