Adult Web Law 101
What Beginners in the Internet Adult Industry Need to Know(And a good guide to the contents of this site.)
An Official Welcome From Joe Obenberger, Attorney at Law
The contents of this site contain no "adult materials" themselves - nor do they contain any direct links to it; we've intentionally designed its graphic content to be inoffensive to people of all backgrounds and ages so that even students can use its resources. But despite the absence of any graphic images here, this site is still controversial, because, sad to say, individual freedom itself becomes more controversial every day in this nation - in fact, our pro-freedom point of view is so controversial, that some govenment agencies have banned us from their network computers, just because of what we have to say about personal freedom.
This site, XXXLAW, presents, almost certainly, the richest collection of legal resources about the law of adult entertainment available to a general online audience in one place.
While I've tried to organize all the materials in a neat and intuitive manner, I recognize, too, that for those unfamiliar with the inside of this industry, even a sensible organization can be a bewildering and intimidating experience when the most critical issues are strange territory to the beginner.
The very most important things to say about the creation of explicit content and its publication online are these:
1. This is a serious, serious undertaking and it is foolhardy to do it without knowing all the risks, avoiding all the risks that are feasible, and reducing the unavoidable risks to acceptable limits. If anyone tells you that any part of the adult industry can be conducted wholly free of risks, they either do not know what they are talking about or they are lying. Don't turn your camera on - and upload nothing to a server - until you have an excellent understanding of all of these risks and have a solid plan of action that takes each one of them into account. These risks are accompanied by not only unlimited civil liability, but also by criminal penalties that range from two years imprisonment in the least serious matters, to forty years imprisonment in the most serious matters. No, this is not for amateurs.
2. It is possible for a layman to eventually educate himself or herself about these matters, but it is a massive undertaking. It is far easier and far safer to consult with a lawyer experienced in this area, preferably one who has been successful in helping others. It's all about perspective, about seeing the big picture of how all the legal requirements interrelate with each other, and how they fit into the actual pattern of commerce. It's hard to get the lay of the land on your own.
3. The risks here include all of the same risks that any normal business encounters, and all of the normal business advice, such as the importance of incorporation, privacy, the employment laws, and others apply. But there are special risks associated with online adult publication. Here are some of them, the most obvious issues.
a. Obscenity Law. The federal government has several criminal obscenity statutes that cover the waterfront, even receiving obscene materials (and yes, they have sometimes been rarely used to punish Internet downloads) and they provide not only for five years confinement on the first offense (Max Hardcore was sentenced to 42 months for obscenity) but also forfeiture of the fruits, evidence, and instrumentalities of the crime. Forty-five states also keep their own obscenity statutes on the books. This site also contains numerous articles concerning the law of obscenity. This area of law is complex and relies on some vague concepts that simply are not easy to define. The practical risks depend to a large extent on the changing winds of society and politics. That being said, certain decisions are smarter than others.
b. Child pornography and the protection of children. The most serious of all of the kinds of trouble anyone can get into online, at least in the adult-focused online sphere. The statues are draconian in their punishment. Five years imprisonment for mere possession, ten years for distribution, and fifteen years for production on the first offense. All of them are doubled on a second conviction. You will find the statutes here. There are special laws designed for the protection of children from obscene materials, too.
c. Section 2257. A law designed to prevent the possibility of the inadvertent creation of child pornography. It is quite exact and demanding in its requirements, and many argue difficult to comply with. It carries a five year penalty on the first conviction. The whole package you need to master includes the statute itself, its sister, Section 2257A which is somewhat kinder and gentler and can be used for less rigorous compliance in the case of simulations and mere lascivious nudity, and the Regulations issued by the Department of Justice that flesh the compliance scheme out. This entire area remains in litigation brought by the Free Speech Coalition; the pending case is the third try at bat to have it declared unconstitutional. Inspections have not been regularly conducted by the FBI during the past few years as these cases move through the system, but the FBI is free to recommence the inspections at any time without any prior notice and I believe that it is like that they will. I've written at some length about all of this in a Primer.
d. Copyright. Though parts of copyright law are straightforward, many of the doctines are not intuitive and have technical ins and outs that simply must be understood. Don't hand money to any designer, programmer, script writer, or producer without a Work for Hire Agreement or you will be in the position of the fool with his money. Infringing the copyright of another is a most serious matter, and you can be liable for an infringement even with material you think is in the public domain. This area calls for serious navigation, not only to protect your own rights, not only to avoid making dangerous and stupid decisions, but to avoid serious harm to yourself. If you handle material submitted for publication from others, or if you own material is pirated, you will need to master the elements of the DMCA. If you do publish material from third-parties, you will need to have a DMCA Policy in effect.
e. The Right of Publicity/The Right of Privacy. These are the rights of individuals in their own appearance and performance. Some states require that all commercial uses of anyone's depiction - subject to "fair use" in the case of bona fide news and some other exceptions - must be backed up with a written release. No, not all releases are the same. There are some very special issues in adult photography and videography that must be handled adequately, or serious risks may ensue. Ensue.
f. Prostitution. Only California has squarely addressed the issue definitively, though there are encouraging decisions elsewhere. You seriously need guidance in this area before walking down the street and offering money to people to have sex in front of your camera.
g. California's Requirement for a Privacy Act Statement. Seriously. No matter where you live and work, you must comply with it.
h. Congress has asked, for the protection of children, that every site containing graphic adult material include a landing page, a warning page, that alerts as to impending graphic content without offending.
i. Contractual matters. There are simply a host of reasons why it is important to have Terms and Conditions for every class of person who visits and uses your site. In the absence of such agreements, you will be far more vulnerable to every manner of civil liability, many of which can be controlled by means of effective agreements. This will also require writing protocols for both online and offline use that keep your procedures legal and which afford you reduction of risk for liability created by others.
j. Marketing. Before launching your enterprise, you will make plans to publicize it. The use of email implicates the requirements of the CAN-SPAM Act and the associated Regulations issued by the Federal Trade Commission which not only flesh out the details left out of the statute, but which specially apply to advertisements for sexually explicit materials.
A large and important part of what this office does is to counsel beginning content producers and webmasters about each of these matters, and to bring experienced operators up to a better knowledgeabilty and compliance. We provide two to three hour introductory consultations designed for precisely this purpose. Our whole purpose is to help webmasters, producers, and operators, and so we would be delighted to hear from you. There are other attorneys in the United States who are able to competently provide advice and guidance, of course, though they may be scarce and widely separated in many parts of the country. But I very sincerely suggest that if you decide to use the services of another attorney, that you deal only with lawyers who are members of the First Amendment Lawyers' Association, a group which I respect and value. Before you retain anyone, ask around and check into what you can learn about him or her. Talk to the lawyer if you can, to get a feel for his or her personality. You may find this article about hiring at attorney for online adult operations to be helpful.
We are prepared to assist you establish a sure and secure grounding in the law so that you can attain success. We are prepared to assist you in many ways, including -
- 18 U.S.C 2257 Compliance - We are not reluctant to work onsite - or to conduct simulated Section 2257 Inspections.
- Section 2257 Inspections
- FBI Search Warrant Exectutions - Raids
- Service as Your DMCA Agent, and advice about maintaining your Safe Harbor Under the DMCA
- Secure Adult Business Purchases and Sales
- The Negotiation and Drafting of Agreements and Contracts that Protect You
- Licensing Agreements
- Online Terms of Service, Subscriber and User Agreements
- Right of Publicity Disclaimers, Model Releases and Work for Hire Agreements. No, they are not all the same. Free documents are usually worth less than what you paid for them. Any release for video that does not cover the performer's copyright in ad libs and in the performance is critically incomplete and leaves you open to his/her claims.
- Warning Pages, Surfer Agreements, Upload Pages
- Marketing Agreements
and Trademark development, registration,
protection, and litigation
- Domain Protection
- Video Chat Production
- Commercial Litigation
- Web Content Review and Advice - And Simulated Section 2257 Inspections, on-site.
No matter what you decide to do, you have my best wishes for your success and long-term safety as you begin. I think that the entepreneurs of the adult Internet fight on the forward edge of the battle area for everyone's freeom. When it's dangerous for them, it's dangerous for anyone else who isn't popular with certain moralizing circles.
This website is the result of one-and-a-half years of work and nearly fifteen years of experience in this area. I hope that you enjoy this site and all of its valuable resources. They really have been selected and put here for you.
This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately. All of the forgoing is subject to our fine print found elsewhere on this website.
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is firstname.lastname@example.org