2257 Regulations
Back in 1984, Penthouse Magazine caused a tidal wave of events which led to Congress enacting 18 U.S.C. §2257 and 18 U.S.C. §2257A, also known as §2257 Regulations (also, a part of the Child Protection and Obscenity Enforcement Act of 1988). If you are a creating and/or distributing adult content, this is something very important that you need to be aware of.
How it All Started
It all started when Penthouse Magazine featured the then 15 year old Traci Lords in their September edition. The success that Lords received from being featured in this edition led to bigger productions which, when discovered, turned into an industry nightmare. To make a very long and complicated story short, the public outcry and lawsuits that resulted from this situation resulted in Congress passing Title 18 United States Code Section 2257 to prevent the distribution of child pornography. While the law has its own long and complex history, the important takeaway is that the law, in its modified and amended form, is a vital component to any production or website hosting adult content.
May I have your attention?
Individuals found to violate Section 2257 for their first time are subject to up to 5 years imprisonment. A second offense, will get you 2-10 years imprisonment. Hopefully, that first sentence was enough to get your attention to see how these statutes are not to be taken lightly. Furthermore, if you are in the adult entertainment industry, it is very important that you are aware and compliant of these laws.
So what is in this Section 2257?
The law itself starts out with “Whoever produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer-manipulated image of an actual human being, picture, or other matter which— (1) contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and (2) is produced in whole or in part with materials which have been mailed or shipped in interstate or foreign commerce, or is shipped or transported or is intended for shipment or transportation in interstate or foreign commerce; shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.”
What does this mean?
What this all comes down to is if you are producing adult content, you need to maintain records for each performer that is featured. These records must sufficiently show that at the time of the performance, the performer was 18 years old or older. Furthermore, these records need to be available for federal inspection at all reasonable times.
Does this Apply to Me?
Whether these statutes apply to you depends on your role in the industry. Producers of adult content absolutely fall under this category. In fact, in 2009, the law was expanded to include secondary producers, which are those who: produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, digitally- or computer- manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service…”
Just hosting?
Distributors or providers of “web-hosting services who does not, and reasonably cannot, manage the sexually explicit content of the computer site or service” are said to not fall within the category of those required to keep records. But that doesn’t necessarily get you off the hook. The industry standard (or at least, what should be industry standard) is for any distributor or host of adult content to include within their “Terms of Use” a special Section 2257 disclaimer which either provides for a link to the producers who should have the records, or a disclaimer stating that the website has no control over the material or was not responsible for its’ creation.
Conclusion
If you are producing adult content, you are playing a dangerous game if you do not have a proper record keeping protocol for your performers. Distributors and content hosts are in a somewhat better position, but it is still essential that a Section 2257 disclaimer be somewhere visible on the hosting platform as an extra step towards protection from liability.
For more information on Section 2257 regulations or for assistance with becoming 2257 compliant, contact Biletsky Law.
