Using our powers of mentalism we know exactly what you are thinking at this moment – “What does this topic have to do with me? I don’t shoot or appear in that kind of stuff”. Now, now don’t get ahead of your skis grasshopper.

The laws regarding risqué, controversial, or even sexual or simply implied sexuality have changed. The important point in all this is that if you photograph or illustrate ANYTHING that suggests anything that would make the most prudish person to rise their eyebrow more than a millimeter, your paperwork and your record keeping now takes on a new dimension. This means not just nudity or suggested nudity, but situations of fully clothed people that even suggest something sexual or even not sexual, but something morally controversial, like implying a drug or alcohol problem. Oh yes, the puritans, fuddy-duddies, old maids, spoilsports, and stuffed shirt societies seemed to have had a hand in drafting this new law that makes sure that if their sensibilities are impinged on, that your paperwork better be immaculate and as clean as a new whistle.

Many of you who need to know the changes in the law, such as assignment photographers, fine art shooters, illustrators and the models/laypeople who appear in still or moving images, simply don’t what the rules are or what they are about. Not knowing, is risky. Knowing is comforting.

While there is no national law regarding model releases (they are for the most part, state regulated), there is a Federal record keeping law that you need to be very aware of these days. Joe Francis, the owner and producer of the “Girls Gone Wild” series of DVDs (remember DVDs?) was prosecuted for various laws involving underage girls in his films. Those charges were dropped, but he did end up paying $2.1 million in fines for improper record keeping under what’s known as “2257 Regulations”. This is akin to Al Capone going away for tax evasion rather than for actual mob boss activities.

Before we get to the new rules, these 2257 regulations that you should be aware of, let’s first educate and simplify this complicated subject for you, our readers.

The First Amendment
For the purposes of this article you need to know that the First Amendment offers no, zero, nada legal protection for the production of obscenity or child pornography. Again, none. The 1st Amendment is not a defense for the production, dissemination or possession of child pornography or obscenity. Federal and state obscenity and child pornography laws and statutes criminalizing both are plentiful.

The “Miller Test” is employed by the Courts to determine how “obscenity” is defined. Using the “average” person in a given community..

• Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
• Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Yes, it is vague, ill defined and clearly differs from state to state, community to community.

SCOTUS Justice Potter Stewart gained notoriety by describing obscenity as, “I know it when I see it”. Ed’s preferred definition was espoused by one of his former law professors, “Obscenity is in the groin of the beholder”. Now that you have seen the “test” just remember that at best, the test is “subject to the wildest of interpretations”.

An image that is clearly obscene to a jury in say, in rural Mississippi would go un-noticed on LA’s Sunset Strip. For decades many “Men’s Magazines” and XXX VHS/DVD sellers would not deliver products to certain southern states fearing prosecution. (Need a refresher, see/read The People v. Larry Flynt)

Child Pornography is NOT Protectable
There are civil and criminal penalties for the creation, distribution and possession of “child pornography”. The cases include extensive use of Photoshop, and suffice to say emphasize whether or not the private parts of children are featured or “simply” whether underage children are scantily clad. Obviously the display of “sexually explicit conduct” is verboten. Without getting into the nuances of this area, lets assume for the purposes of this article that all persons being portrayed or appearing are adults, capable of giving legal consent.

Pornography IS Protectable.
Now pay close attention folks. Depictions of ie women in bikinis like you see at your local public swimming pool or beach might be considered pornographic in some or all “communities” in America. Nudity is not required.

Displays of explicit sexual conduct ie the content of a typical XXX adult film, may be pornographic but may and typically are copyrightable and entitled among other things, First Amendment protection.. Pornography may apply to any “visual depiction of sexually explicit conduct”. Again, nudity is not required. Partial nudity is not required. People could appear in bikinis, men’s three piece suits or full SCUBA in the photo shoot or video. Simulations via digital or computer manipulation count as if “real”.

Many high fashion ads and videos may be considered a “lascivious exhibition” despite there being no nudity or the simulation of sexual acts. Fine art as well as a perfume ad might be erotic sans nudity or any touching.

Any/all of the above, while considered pornography in some communities but not in most communities, are protectable and most often, perfectly legal.

OK, The New Law- The Meat of This Piece (so to speak) – 18 USC 2257(a)(b) and (c).
This federal law requires record keeping unlike that of most commercial shoots. Ironically, it is also the same type of record keeping we suggest for any and all “regular shoots” but this is federal law we are talking about here. You can ignore us at your own risk. Ignore the Feds? Ask Bernie Madoff or Martha Stewart how far that will get you.

Here’s what you MUST now do under the law:

1. Create and maintain individually identifiable records pertaining to every model, person or performer portrayed in the visual work whether digitally altered or computer manipulated. That means for practical purposes – written signed model releases, contact information, proof of age via date of birth paperwork (driver’s license/passport) and images of that person attached somehow so you can match the created image to the correct model release and contact information. Jack likes to photograph his models holding a numbered release, not for any legal purpose, but simply to match model release to model, especially on shoots with multiple models. Long after a shoot, it’s hard to remember which model went with which release. A simple photo of model holding their signed release solves that issue.

2. If you are shooting or performing in explicit materials make sure to place any/all stage names, pseudonyms or other names used by the model/actress on the model release. Preferably placed there in the model/actresses own handwriting.

3. These records must be maintained at all times so they can be inspected by the authorities for a period of at least 5 years during normal business hours even after you have ceased doing business. We recommend holding on to paperwork like model releases forever, the 5 years is the legal requirement under the 2257 regulations.

4. If you distribute the works you should affix a statement as to where such records can be viewed. For most creators, copies of the information and documents should be provided to the client. Again, you can be shooting an ad for a woman’s jeans company which features a design which attracts the eyes of men watching a parade of jean clad women walking by. Innocuous? Probably. Now use your artist’s imagination and make a change or two to that shot in your head and then maybe it goes from a PG to an R rating.

Best practices would be to use a “Sensitive Model Release”, a sample of one such release is available in our books or see our articles in this blog, like this one titled “Being Sensitive and Sensible about Sensitive Releases”.

Are you a “Producer” ?

The statutes get pretty intense here. The law classified those who are distributors and divides “Producers” into “Primary” or “Secondary” classes. The differences between primary and secondary are far too complicated to explain here.

If you actually film sexually explicit materials you are likely a “producer”. If you assemble, manufacture, publish, manage content and/or distribute such explicit materials you are likely a “Secondary Producer”. You or your company can be both types of producers simultaneously.
Companies and individuals who regularly produce such materials often employ separate companies to perform and retain all the paperwork in accordance with state and federal laws.

If you think that you might be considered a “producer” and have not consulted with local competent counsel, you ought do so yesterday. Producers have added record keeping responsibilities.

Bottom line get crystal clear signed written releases, proof of age, keep records in both digital and paper form forever. Keep them well beyond the 5 year Federal requirement. Do not assume that because you don’t create or appear in “porn” these laws do apply to your fine art or ads for beer, sunscreen, hygiene products, birth control products or makeup.

And please, please, don’t use the excuse “Well, I’ve never done this and never had a problem”. That does work until you do have a problem and it’s now not a molehill but rather a giant mountain of a problem, as anyone who has had to deal with the Feds on this type of issue will tell you.