This article is the third in a series examining the requirements of the federal recordkeeping and labeling laws known as the 2257 regulations as they pertain to current and emerging adult entertainment business models.
The motivation to write and publish this series stems from a recent federal court dismissal of the Free Speech Coalition’s constitutional challenge to the 2257 regulations and my desire to combat what appears to be a dangerous amount of complacency regarding 2257 matters throughout the industry.
So even if you do not produce content and are only an adult content licensee, it is critically important for you to understand the 2257 Regulation identification document requirements so that your record keeping system will not be in violation of this very serious law.
Because of the court’s ruling, the 2257 regulations will, unfortunately, remain valid and enforceable against adult entertainment companies and their principals into the foreseeable future. As such, compliance with the 2257 regulations is a matter that should be of serious concern to virtually every company and person producing or exploiting explicit adult content. Moreover, an understanding of the 2257 regulations, and an appreciation of the risks of noncompliance with them, will become particularly important if a conservative antiporn republican president is elected in 2013.
In the last two articles in this series I discussed how the 2257 regulations apply to live chat businesses and affiliate marketing materials. In this article we will look at the 2257 regulations that apply to performer identification documents.
Performer identification document obligations under the 2257 regulations.
Among the numerous and complex set of regulations known as the “2257 regulations” (18 U.S.C. §2257, §2257A and 28 CFR 75), there are a number of special requirements relating to performers’ identification documents that must be examined and copied by content “producers”, and maintained in their 2257 record-keeping systems. Understanding and complying with these and all other 2257 requirements is critical because the Department of Justice has a longstanding policy that any violation of the 2257 regulations, no matter how small, is nonetheless a fully prosecutable and fully punishable offense. This means, for example, that as incredible as it might seem, an adult content producer could be charged, convicted and sentenced up to five years in prison if there is just one non-compliant identification document in his or her 2257 record-keeping system.
But before we examine the specific 2257 regulations pertaining to identification documents, it is important to know to whom and to what the document obligations apply.
All of the 2257 identification document requirements are imposed on persons or entities defined as “producers” of content depicting actual human beings engaged in “sexually explicit conduct” (e.g. not animated depictions or depictions of avatars, etc.). The definition of the term “producer” is set forth at 28 CFR 75.1(c) which states:
“(c) Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer.
(1) Primary producer is any person who actually films, videotapes, photographs, or creates a digitally or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct . . .
(2) Secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or 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 or simulated 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 that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing ... “
The list of types of content comprising depictions of “sexually explicit conduct” subject to the 2257 regulations is found at 18 U.S.C. 2256(2)(A) which states:
“(A) ... “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person ... “
As you can see, the scope of what and to whom the 2257 regulations apply is incredibly broad. While the 2257 regulations exempt certain specific materials, such as content created before July 3, 1995, virtually all of the hardcore content created in the U.S. today, and nearly all the explicit content distributed in or from the U.S., is subject to the 2257 regulations. Also nearly all persons or companies that either create or publish such content, manage a website displaying such content, or upload the content to a computer site or service, will be a “producer” under the 2257 regulations.
So what are a producer’s obligations regarding the creation and use of content subject to the 2257 regulations? Basically there are two requirements, examination of a “picture identification card” and the maintenance of a copy of the identification document examined.
Examination of the performer’s picture ID card.
A primary producer’s first obligation commences prior to the time the first photo in a session is taken or the first frame of an adult video is shot.
Specifically, a producer must obtain from the performer his or her legal name and date of birth from a “picture identification card” prior to the creation of the depiction that will be subject to the 2257 regulations. Section 75.2 of the regulations (28 CFR 75.2), which lists the materials that must be maintained in a producer’s 2257 record-keeping system, requires that the 2257 records include
“(1) The legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card prior to production of the depiction.” (Italics added)
The term “picture identification card” is defined in the regulations at 28 CFR 75.19(b), which states:
“(b) Picture identification card means a document issued by the U.S., a state government, or a political subdivision thereof, or a U.S. territory, that bears the photograph, the name of the individual identified, and the date of birth of that individual, and provides specific information sufficient for the issuing authority to confirm its validity, such as a passport, Permanent Resident Card (commonly known as a “Green Card”), or employment authorization document issued by the U.S., a driver’s license or other form of identification issued by a State or the District of Columbia; or a foreign government-issued equivalent of any of the documents listed above when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the U.S. at the time of original production and the producer maintaining the required records, whether a U.S. citizen or non-U.S. citizen, is located outside the U.S. on the original production date. The picture identification card must be valid as of the original production date.”
Maintenance of the identification document examined.
The 2257 regulations also require all producers to include and maintain in their 2257 record-keeping systems a copy of the identification document that was examined prior to the creation of the depiction subject to the regulations. Specifically, 28 CFR 75.2(1) states that:
“ ... the records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined ... ”
While this part of the 2257 regulations does not use the term “picture identification card”, that will most often be the document that must be included in the producer’s records system because it will likely be the document that the producer has “examined” to obtain the name and date of birth information, which is also required to be maintained in the records (see above).
2257 ID document compliance in practice.The following are examples of types of identifications that can be used in compliance with the 2257 regulations:
- A current valid U.S. passport
- A current valid passport issued by a foreign government, but only when the performer and the producer are outside the U.S.
- A current valid state driver?s licensen A current valid official state identification card
- A current valid state college or state university identification if it has a clear picture of the person identified, their legal name, their date of birth and a document identification number or other specific information sufficient for the issuing authority to confirm the identification document?s validity.
The following are examples of types of identifications that cannot be used to comply with the 2257 regulations:
- A foreign passport for any performer where the performance creating the content subject to the 2257 regulations is rendered in the U.S. (U.S. or state ID required)
- A Social Security card
- A school identification card issued by a private college or university
- Any identification document that is not current or valid
- Any identification document that does not have a recognizable photograph of the performer
Don’t let other people’s 2257 problems become your own.
In my adult entertainment law practice I am finding that there is an increasing number of inquiries regarding proper performer identification document records. This is not surprising given that more and more adult entertainment companies are shooting their own content and that there is an increasing number of new content creators entering the business who are unfamiliar with the 2257 regulations. Unfortunately, however, this upsurge in content creation has resulted in an increasing amount of content that is not compliant with the 2257 regulations. And this problem is often compounded when noncompliant 2257 records are provided by a producer to one or more third-party licensees of the content, which, in turn, puts in jeopardy each of the licensees who are then in possession of non-compliant 2257 records.
So even if you do not produce content and are only an adult content licensee, it is critically important for you to understand the 2257 Regulation identification document requirements so that your record keeping system will not be in violation of this very serious law.
A word about 2257 complacency.
While it is very unlikely that the current administration will recommence 2257 inspections any time soon, it is important to point out that if President Obama is not reelected, it is likely that 2257 records inspections suspended under Obama, will begin anew. Even worse, under a conservative republican president, enforcement of the 2257 regulations appears to be increasingly likely unless the law is definitively struck down in court.
Because of this, many adult entertainment companies and their principals are already in potential jeopardy for prosecution of current 2257 regulations violations. This is because the government has up to five-years from the date of a 2257 regulations violation to commence criminal prosecution of the violator. This means that any current noncompliance with the 2257 regulations could be prosecuted by the next republican administration if President Obama is not re-elected. And with unemployment projected to remain high throughout the coming election year, it is by no means certain that the Obama Administration will have a second term.
So now is definitely not the time to become complacent about compliance with the 2257 regulations. It is, unfortunately, still the law.
Gregory A. Piccionelli is an intellectual property and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (818) 201-3955 or greg@piccionellisarno.com.
