‘Soft’ Content and 2257

New 2257 regulations create an end-around for Hollywood and less-edgy content.

The Adam Walsh Act — an abomination — coupled with the most recent incarnation of the 2257 regulations — something that the W. administration promulgated on a fire-drill basis so as to leave us one more bad thing from the worst president in history — added lascivious exhibition of the genitals or pubic area of any person and simulated sexually explicit conduct to 2257 coverage. Obviously, that is significant. Pictures showing "pink," and for the gay market, solo pictures of males with erections, were not covered by 2257. So some really sexy stuff could sidestep the misery of 2257.

When W. was re-elected in 2004, along with retaining majorities in both houses of Congress, he proclaimed, "I've got some political capital and I'm going to spend it." And he did. Part of it was spent on the Adam Walsh Act, which was enacted a few months before the Democrats upended both houses of Congress in the 2006 election. But the worst presidency in American history is now over, leaving us with a legacy of anti-erotica legislation and regulation. Hey, all that the Clinton people did was to leave their White House offices a bit messy; the Bush II administration closed out with a scorched-earth approach policy toward erotica.

So, about soft and simulated content — what's required? This certainly is important to many websites that do not need "hard content" for their business models. Good examples are phone sex sites, or affiliate sites that show only clips that end with, "If you want to see the good part, click on www.#&*%&@*.com." So, how can these folks avoid 2257? Well, they can't, but they can take advantage of a spectacular shortcut. That's what this piece is all about.

2257 Evasive Tactic Number One: The Department of Justice (DOJ) has taken the position that depictions involving only lascivious exhibition and/or simulated sexual conduct are covered by 2257 only if the trigger on the camera was pulled on or after March 18, 2009. If all you need is cheesecake or beefcake photos, such as phone-sex sites, there are stock photos that have been around a few years available everywhere, if that will do the trick for you.

2257 Evasive Tactic Number Two: If the images involved were shot on or after March 18, 2008, then the 2257/2257A regulations kick in. (The same regulations apply to both.) For images depicting only lascivious exhibition and/or simulated conduct, there is a certification process that sidesteps the 2257 labeling and record-keeping regulations. If the creator — not the exhibitor — of the image or motion picture has made the required certification to the DOJ, records need not be kept or indexed, and the "producer" (and everybody is a producer) need not stand for inspection.

So, you want to put up images that do not require 2257, and, say, you are a referral site or a phone-sex company — what is required? That is certainly the obvious question. So here is the answer.

To sidestep 2257's labeling and record-keeping requirements, the statute and regulations together require a certification to the DOJ by the organization making the image. The regulation requires that the producer certify, "I hereby certify that [name of entity] [and all sub-entities listed in this letter] regularly and in the normal course of business collect and maintain individually identifiable information regarding all performers employed by [name of entity]." Note that there is nothing about examination of identification documents.

The easy work-around for materials that only include lascivious exhibition and/or simulated content was transparently to placate mainstream Hollywood. But adding those two categories also probably was to counter the industry's argument that most child pornography in the world of pedophiles, secretly exchanged by them, contains only lascivious exhibition or simulated sexual activity.

Now, the problem here lies where you do not create your own content. If you do, then just make a certification to the DOJ as required by the regulation. Caveat: Don't fill your own teeth; have an attorney familiar with this stuff draft the certification letter. You need do this only once.

What if you purchase this content? Then the content supplier needs to do the certification. But how do you know that it did?

The bad news here is that you once again need legal help. But here is the blueprint: The content supplier must accomplish the certification. You, as the content purchaser, need to be sure it is done correctly.

First off, you need to obtain a copy of the certification from the content supplier. Second, include in your 2257 label an explanation of why the content is exempt from record keeping, etc. Then, include in a 2257 disclosure an explanation of the identity of the source of the images and a statement that the source complied with the exemption procedure. Once this has been in place for a while, perhaps more innovative solutions will be out there.

Clyde DeWitt is a Los Angeles and Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices, or at ClydeDeWitt@Earthlink.net. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.

This article originally appeared in the May 2009 issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscribe