Question for the lawyers - 2257 and nude "Art"

[KevinG]

I guess there could be a good discussion on the definition of what "art" is or nude art and the application or exemption of 2257.

That might be interesting, but what I really want to know, especially hearing from an attorney, is your opinion on whether the Met Art site is exempt or not.

Their attorney says they are exempt, but they also state that they keep records and list a partial address, leaving out the street and number.

There's a big long "credentials statement" from their attorney basically implying that he is a big shot that knows what he is talking about so don't question his opinion on the application of 2257 to the site.

You can see it here:
http://www.met-art.com/disclaimer2.htm

Actually, I have 2 questions:

1. Is Met Art exempt?

2. What advice would you give in this area to a new site, smaller business, not yet established that has very similar content to Met Art.

[Forest]

are you getting nude again?

[RawAlex]

I am not a lawyer, take my comments with a grain of salt.

If you want to publish anything, you need a model release. That model release, amongst other things, if your contract for the models work, payment in kind for rights granted. You pay the model $200 for a shoot, and she grants you the unlimited and exclusive rights and resale rights to the content that you produce.

By the very nature of contract law, the model could not enter into the contract if she was under the age of 18, as it would require her parents or guardian to sign for her. Hence, all your models are of legal age. How do you know this? Because you checked their IDs, right? You took copies of their IDs for your records because regardless of section 2257, it is also illegal to produce CP as per 2252. So you want to cover your ass in case, right? So by definition, you have all the documents to support 2257 right in your hands.

Any site (and I mean any site) that uses the "art" defense is in effect confirming that either (a) they do not have appropriate model releases, or (b) some the models are underage. With model IDs and model releases on hand, you can essentially be compliant without having to worry about "art", unless you have something to hide.

Further, and just as important in the end, is how and where you would promote an "art only" site. If it is art, you obviously wouldn't want links from porn sites, or adult material, but rather you would look to trade links maybe with art galleries, photo blogs, photographer forums. If you intent is to market the site via adult sites, you pretty much need to just wake up and admit your shit is nude models and work with it.

Also, if any of the material on a site is "porn" (sexual material as defined in 2256) then you pretty much need to cover your ass on every other piece of material on the site. Putting a naked 16 year old in the middle of a site packed with nude adult models showing the pink would certainly put you in a shitty position.

I wait for the lawyers to express an opinion, remember, I am not a lawyer!

[MRock]

Good post RawAlex and very well put. Why would anyone NOT want to have the right docs!? Adult or mainstream webisode?

[gonzo]

Big Haps coming to Oprano regarding legal issues.

[Forest]

Originally Posted by RawAlex

I am not a lawyer, take my comments with a grain of salt.

dont we always?



j/k

[RawAlex]

Originally Posted by Forest

dont we always?



j/k

Some people take my comments with the Dead Sea...

[Hammer]

Alex makes a good point, but as far as 2257 goes, no, Metart is not exempt. Although they may not have hardcore sex images, many of their images are clearly explicit as defined by the law. "Lascivious displays of the genitals" clearly covers much of their content where you can see the model's vagina. A good lawyer could even make a case that a chick with panties on but showing cameltoe would be a sexually explicit display of the genitals.

[gonzo]

Im not a lawyer but heres my thoughts.

Every shoot Ive done you get a release a copy of the idea regardless of the level of content.

When I shot for Homegrown they also had the model read a statement before each video.

[RawAlex]

I remember one guy I lent a hotel room to at a show to shoot in had the girl read a little bit of the model release, hold the cash up for the camera, say she had fun, that she had a good time, that she knew everything that was going to happen and she had agreed to all of it, today's front page of the newspaper, etc. It's pretty hard for a girl to get model's remorse and then have to answer for that in court.

[WebBilling.com]

Originally Posted by RawAlex

I remember one guy I lent a hotel room to at a show to shoot in had the girl read a little bit of the model release, hold the cash up for the camera, say she had fun, that she had a good time, that she knew everything that was going to happen and she had agreed to all of it, today's front page of the newspaper, etc. It's pretty hard for a girl to get model's remorse and then have to answer for that in court.

Sounds like that pretty much covers it...

[KevinG]

Thanks for the responses guys.

I already knew the answer, but needed to get other unbiased opinions to show to a client that was believing what Met Art said.

[pornlaw]

Without actually reviewing the site, I cannot really state whether they are exempt or not. But I know Jeffrey Douglas and I know he is a well versed and well prepared attorney.

I would not expect him to lend his name to such a public statement unless he was sure (as much as a lawyer could be) that the site was exempt.

That's really sticking your proverbial neck out for a client. I dont think Jeff would do that without the facts backing him up.

Michael

http://www.adultbizlaw.com

[Greg B]

This is why I stick to toons. Nobody cards a toon nor needs documents to prove it's age.

No labor forms or problems either although they do take out that occasional ACME product that backfires now and then.

[RawAlex]

Originally Posted by pornlaw

Without actually reviewing the site, I cannot really state whether they are exempt or not. But I know Jeffrey Douglas and I know he is a well versed and well prepared attorney.

I would not expect him to lend his name to such a public statement unless he was sure (as much as a lawyer could be) that the site was exempt.

That's really sticking your proverbial neck out for a client. I dont think Jeff would do that without the facts backing him up.

Michael

http://www.adultbizlaw.com

There are two possiblities: 1) that Mr Douglas didn't ever truly express an opinion, or 2) he was presented content without context, without explaining how the marketing would be done, etc.

Further, that notice has been on that site for quite a long time, and since then there has been changes in the definitions for 2257 requirements, rulings regarding certain clothed video still being porn, etc.

Times change. One lawyer consultation 7 or 8 years ago doesn't make you safe.

[pornlaw]

since then there has been changes in the definitions for 2257 requirements, rulings regarding certain clothed video still being porn, etc.

As for 2257 purposes, I would highly doubt that the FBI is looking for dry humping websites to inspect.

If they inspected those companies at the rate that Agent Joyner discussed, 2 per week, it would take 26 years to complete just those 1200.

I would imagine that if any further inspections will be made they wont be soft core sites.

Michael

http://www.adultbizlaw.com

[Rcourt64]

Originally Posted by pornlaw

As for 2257 purposes, I would highly doubt that the FBI is looking for dry humping websites to inspect.

If they inspected those companies at the rate that Agent Joyner discussed, 2 per week, it would take 26 years to complete just those 1200.

I would imagine that if any further inspections will be made they wont be soft core sites.

Michael

http://www.adultbizlaw.com

Hey? Are you getting paid to post here?
...Regardless, I see your based out of Cali.
Are your law services only Internet based related? Or can you offer legal representation, and/or legal council per individual U.S States or County enforced laws???

[RawAlex]

Originally Posted by pornlaw

As for 2257 purposes, I would highly doubt that the FBI is looking for dry humping websites to inspect.

If they inspected those companies at the rate that Agent Joyner discussed, 2 per week, it would take 26 years to complete just those 1200.

I would imagine that if any further inspections will be made they wont be soft core sites.

Michael

http://www.adultbizlaw.com

Actually, I think that the sites most likely to get inspected are those that play in the grey. Met-Art may be entirely legal, but they (and many others) specifically muddy the waters, not really mentioning the age of their models, playing up the "nude art" aspects, and otherwise attempting to appeal to people who may be looking for something less than legal. The only place they state the models are over 18 is in a small line on the 2257 page. Nowhere on the tour do they use "eighteen" or "nineteen", but they do use "teen nudes".

IMHO, the site panders to people looking for underage models. They may not have any underaged girls on their site, but their sales pitch is pure pander. As such, I would think they would be a very, very good target for a records inspection.

[gonzo]

Originally Posted by Rcourt64

Hey? Are you getting paid to post here?
...Regardless, I see your based out of Cali.
Are your law services only Internet based related? Or can you offer legal representation, and/or legal council per individual U.S States or County enforced laws???

Im not paying him to post. Thats Just Blows Men that does that.

[Rcourt64]

Originally Posted by gonzo

Im not paying him to post. Thats Just Blows Men that does that.

Really now? Your reply seems as if your offended by my above comment Mr.GonZo?
If anything, I would have found it to be a generosity form, of a famous board owner to offer such a service to it's membered and public viewing webmasters.
"Even more appreciated if the board owner was pocketing the bill for such services."
And I thought of it has a good idea "apart from a really good marketing strategy" for a legal form of representation to offer a few free legal advise & opinions to webmasters & others on a board like this.
But instead you seem offended with my suggestion? Hmm?
You guys really need to get out of this one track monkey see & do concepts.



Rcourt64

[pornlaw]

Hey? Are you getting paid to post here?
...Regardless, I see your based out of Cali.
Are your law services only Internet based related? Or can you offer legal representation, and/or legal council per individual U.S States or County enforced laws???

No $$$ to post here and I cant answer specific legal questions but can address broader issues. I have a firm of 4 attorneys and we are about to add another shortly. We handle a varied practice and I do have clients out of Cali and outside of the US, but my representation with those clients is limited.

Actually, I think that the sites most likely to get inspected are those that play in the grey.

I agree, however, I think the tube sites are going to be a bigger target for inspection. Free hardcore without any 2257 notices ? Wouldnt they make a better target in your opinion Raw Alex ?

Michael

http://www.adultbizlaw.com

[RawAlex]

Originally Posted by pornlaw

I agree, however, I think the tube sites are going to be a bigger target for inspection. Free hardcore without any 2257 notices ? Wouldnt they make a better target in your opinion Raw Alex ?

Michael

http://www.adultbizlaw.com

Actually, no. For a tube site to get inspected, they would first have to declare it a publisher and not a hosting service (hosts have exemptions). A 2257 inspection would then as a result almost entirely lead to a long and drawn out court battle, the type of the DoJ is trying to avoid.

Also, hardcore porn is boring, and doesn't make the media get all giddy. "Site shut down for distributing legal hardcore porn" is a boring headline. "Most popular child porn art site shut down in massive sweep" is a much more positive thing.

You should know, not everything is done just to satisfy the laws, but also to satisfy the intents and desires of those who have power.

[Rcourt64]

Originally Posted by pornlaw

No $$$ to post here and I cant answer specific legal questions but can address broader issues. I have a firm of 4 attorneys and we are about to add another shortly. We handle a varied practice and I do have clients out of Cali and outside of the US, but my representation with those clients is limited.

Michael

http://www.adultbizlaw.com

Legalities are a main artery in the Adult Industry.
Thanks for taking the time & comments your offering here at Oprano

[gonzo]

Originally Posted by Rcourt64

Really now? Your reply seems as if your offended by my above comment Mr.GonZo?
If anything, I would have found it to be a generosity form, of a famous board owner to offer such a service to it's membered and public viewing webmasters.
"Even more appreciated if the board owner was pocketing the bill for such services."
And I thought of it has a good idea "apart from a really good marketing strategy" for a legal form of representation to offer a few free legal advise & opinions to webmasters & others on a board like this.
But instead you seem offended with my suggestion? Hmm?
You guys really need to get out of this one track monkey see & do concepts.



Rcourt64

Ive been told that being underestimated is my greatest attirbute.

[pornlaw]

Originally Posted by RawAlex

"Most popular child porn art site shut down in massive sweep" is a much more positive thing.

If that were the case there are a ton of teen "modeling" sites that operate in the gray area 2257 by your definition. Why not start with them ? That would make a great CP headline.

Without revealing too much, I talked with Agent Joyner directly and tube sites are on their list. Further, I suspect we wont be seeing inspections resume anytime soon. 2257 enforcement is going to change in light of the 6th Circuit. I really cant go into specifics though. There are things going on in the background that I cant discuss in an open forum.

Michael

http://www.adultbizlaw.com

[RawAlex]

Having suffered the loss in the 6th circuit, it is very unlikely that any agency would want to base any inspections on the law. There is great potential that anyone inspected and not found in compliance for whatever reason could challenge the law in their circuit, using the 6th circuit as a basis for their arguments. DoJ isn't looking for more losses.

I wouldn't be shocked to see the FBI "raid" someone based on 2252.

[Rcourt64]

From where I stand? IT'S ART!
As a U.S legal standpoint? it's also "Art" or "Entertainment"....
...until any sort of physical contact or penetration becomes visible.
Is this correct, Pornlaw?

[pornlaw]

Originally Posted by Rcourt64

From where I stand? IT'S ART!
As a U.S legal standpoint? it's also "Art" or "Entertainment"....
...until any sort of physical contact or penetration becomes visible.
Is this correct, Pornlaw?

Not quite. Alex makes a lot of great points. I think we differ in so much that, while I have not reviewed the site, it might be exempt. Jeff is a strong attorney and well versed in 2257. He is not careless and would not put up that statement unless his decision was well supported.

Michael

http://www.adultbizlaw.com

[KevinG]

Originally Posted by pornlaw

Jeff is a strong attorney and well versed in 2257. He is not careless and would not put up that statement unless his decision was well supported.

Michael

I think this relates well to the 2nd question in my original post:

2. What advice would you give in this area to a new site, smaller business, not yet established that has very similar content to Met Art?

The reason I asked that is because while I do not believe they are exempt, I believe they have the resources to put up a good fight if they need to. Like you said Michael, "Jeff is a strong attorney". That's one resource. They most likely have some decent financial resources as well.

Look at my question #2 again and think about a new operator in this business that has more limited resources and they are producing and publishing the same type of content.

I would advise them to comply with 2257.

Also, think of the saying, it's not what you know, it's who you know. Jeff might have some good connections in the legal system.

I saw a clip on the news last night of a school principle that got pulled over for drunk driving. He was 3 times over the legal limit for blood alcohol.

The officer drove him home and he wasn't charged.

The school principle is friends with the Chief of Police and he called him from his cell as he was being pulled over.

Based on that, I still do not think it is good advice to tell someone in that town that they can get away with drunk driving. (I forget where it was.)

[RawAlex]

Originally Posted by pornlaw

Not quite. Alex makes a lot of great points. I think we differ in so much that, while I have not reviewed the site, it might be exempt. Jeff is a strong attorney and well versed in 2257. He is not careless and would not put up that statement unless his decision was well supported.

Michael

http://www.adultbizlaw.com

Would it not also be important to know when those statements were made? If I remember correctly, that quote has been on their site since about 1999. With all the changes, challenges, and rulings made since then, would it not be something that would need to be re-examined from time to time?

[pornlaw]

Originally Posted by RawAlex

Would it not also be important to know when those statements were made? If I remember correctly, that quote has been on their site since about 1999. With all the changes, challenges, and rulings made since then, would it not be something that would need to be re-examined from time to time?

The best way to get to the bottom of this is to simply go to the source. I will call Jeff on Wednesday and get some insight from him. If that statement has been up since 1999 without being altered or changed in anyway, I too would be concerned. But again, we can speculate but Jeff has the answers.

As for what advice I would give, my black letter law advice would be to comply. If you have full nudity have the statement up and keep the records. But there are certainly gray areas to 2257 and the Adam Walsh Act. What most people in the biz don't realize is that as the law currently sits almost everyone is in violation. Most dont even realize it.

Every client has their own comfort zone in regards to risk. Perhaps Met-Art is willing to push the limits. Each client has to be told the black letter law but also given options as well based upon their level of risk adversion. I suspect there's a reason to the statement. Again, I will ask Jeff on Wednesday.

Michael

http://www.adultbizlaw.com