Records
Keeping Compliance Checklist for European Content Producers
More and more
European Content Producers are choosing to do business with
American. webmasters. While citizens of foreign countries cannot
be compelled to comply with United States’ restrictions on the
creation of adult material, business realities are forcing foreign
content producers to consider voluntary compliance. American
webmasters, painfully cognizant of the increasing need to focus on
legal compliance, consistently reject foreign content that is not
produced in compliance with 18 U.S.C. §2257.
Non-compliant content not only increases the risk that an underage
model could slip through, but failure to strictly comply is itself
a federal felony, exposing those involved to a 2-year prison term.
Given the substantial compliance motivations involved, foreign
content producers are expected to adopt the U.S. requirements as
the global standard for creation of sexually explicit imagery.
The following constitutes a bare minimum checklist for compliance
with the requirements of Section 2257:
1)
Assume that all erotic images require Section 2257
compliance: While the law only applies to actual “sexually
explicit activity,” it is ill-advised for the content producer
or the webmaster to attempt to guess which images require
compliance, and which can be safely distributed without
compliance. Since child pornography does not require the depiction
of sexual activity to meet the federal definition, such
distinctions can be risky business.
And, in any event, a release given by a minor normally is
not enforceable.
2)
Obtain a signed compliance form created by a competent
attorney: Section 2257 requires that certain records be
created containing certain information. The right form is the best
place to start.
3)
Obtain, at a minimum, the following information from each
model:
a.
Date of Birth
b.
Legal Name
c.
All other names, aliases,
nick names, stage names, and maiden names
d.
Social Security Number
e.
Copy of Government-Issued
Identification containing a picture; preferably 2 pieces of
identification. Note the requirement that the producer
actually examine the identification document, not just the cops.
f.
Address, phone and
other contact information
g.
The model’s signature
4)
Require the model to execute a binding model release
prepared by a competent attorney. The images are only as
legal as the model release backing them up. If all
relevant rights have not been transferred and released by a valid
model release, both the webmaster and the content producer are
subject to claims once the content is displayed on a Web site.
5)
Maintain the records so that they are cross-indexed by the
models’ legal names and stage names and by web page.
Alternatively, provide copies of all records to the
webmaster if the webmaster will act as Records Custodian.
You need to discuss the particulars of this with an
attorney, because each circumstance may be unique.
6)
The Records Custodian should maintain an off-site backup
copy of the records: What happens if there is a fire or a
government seizure?
7)
Include a conspicuous records custodian disclosure on all
CD’s / DVD’s containing erotic imagery, including the full
legal name of the custodian and physical address where the records
are kept. The disclosure should also certify that all models
are over the age of 18, and include the date when the content was
first created, published or republished. Placement of the
disclosure on the product should be reviewed by an attorney.
Only through strict
compliance with the mandates of Section 2257 will American
webmasters fully embrace content produced overseas. The
right compliance procedure will open profitable markets for
foreign content producers, and result in a wider variety of adult
content for both webmasters and consumers.
Lawrence
G. Walters, Esquire is a partner with the law firm of Weston,
Garrou & DeWitt, with offices in Orlando, Los Angeles and San
Diego. Mr. Walters represents clients involved in all
aspects of adult media. The firm handles First Amendment cases
nationwide, and has been involved in significant Free Speech
litigation before the United States Supreme Court. All
statements made in the above article are matters of opinion only,
and should not be considered legal advice. Please consult
your own attorney on specific legal matters. You can reach
Lawrence Walters at Larry@LawrenceWalters.com,
www.FirstAmendment.com,
or AOL Screen Name: “Webattorney.”
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