WASHINGTON, D.C. – According to a tickler on the website of Hughes Hubbard & Reed LLP, the new §2257A regulations published last December, and which went into effect in March, require producers of "simulated sexually explicit conduct" and works that feature "lascivious exhibition of the genitals" either to keep roughly the same records as those required of hardcore producers, or to file a letter with the Attorney General of the United States that records similar to those required under §2257 are kept in their normal course of business.
Around the adult industry, such a letter is commonly referred to as a "get out of jail free card."
But also written into the new regs is the requirement that softcore producers file such a letter within three months of the date the §2257A regs went into effect – and according to Hughes Hubbard, that date is June 16.
A discussion by First Amendment attorney and AVN columnist Clyde DeWitt of the requirements of the "exemption letter" can be found here, and an in-depth (though impolite) discussion of the concept here.
But while producers of simulated sexual material, most of whom are Hollywood- rather than XXX-affiliated, get to operate by a different set of rules, attorney Jeffrey Douglas, who advises many adult movie and online producers about their §2257 requirements, says that the "Hollywood exemption" may come in handy for some adult producers as well.
"There are companies that are successful that make and produce strictly exempt material; that is, material where there is no masturbation or penetration or 'sado-masochistic abuse,' whatever that is," Douglas noted. "I'm going to be doing at least half a dozen letters, and maybe as many as ten."
"It is definitely worth it for companies that produce both hardcore and exempt material to set up a separate entity that is the 'exempt-material' entity so they can exempt that material, file an exemption for that material," he continued. "It doesn't have to be a separate company, but they should give it a designation, give it a d/b/a of their existing entity. Or if they don't split it up, they could provide the Justice Department with a list of the movies, but it seems much better just to have an exempt division or some way to identify a label or a brand under which all their exempt material goes. That way, they can remove the burden of 2257 recordkeeping for that material, and the labeling as well."
The concept even works for those adult producers who, while shooting a hardcore movie, also shoot separate softcore scenes to be used for cable or pay-per-view/hotel distribution, and who often retitle that softcore product to distinguish it from the hardcore release – but there could be a catch.
"I want to make it clear," Douglas warned, "it's not the camera angle that's important; it's the action that's actually taking place. You can't file for an exemption for a movie that has actual hardcore sex in it, but just doesn't show the hardcore on the screen."
Somewhat more problematic are movies containing "lascivious exhibition of the genitals," which the new regulations also exempt – but a true definition of the term is elusive.
"Despite what the government says, it's essentially a subjective component," Douglas explained. "There is a very bad opinion, U.S. v. Dost, that lists a number of factors, but it does not really provide meaningful guidance, and since that opinion was trying to distinguish between child pornography and mere child nudity, it focuses on what is inappropriate for the age. That obviously really doesn't apply when you're dealing just with adults. So the only way that means much is, if the focus of the image is not on the genitals, then arguably it's not lascivious. So for instance, if they're playing nude volleyball or it's a nude beach video where there are no close-ups, that arguably would not be lascivious. But who the hell knows? But since the exemption applies, it makes sense just to get the exemption whether it's meant to be lascivious or not."
If a producer thinks that his/her work, or some of it, may qualify for exemption under the new regulations, Douglas strongly recommends consulting a good First Amendment attorney who has experience with the adult industry rather than trying to craft such a letter him/herself – but such consultation had better be done quickly; that deadline is just six days away.