Whew! Yesterday’s legal deciphering session had me beat, but there are 2 other sections of the 2257 Regulations that we have to talk about so you’re properly (or not so properly, depending on how convoluted the legislation is) informed:
3) The Duty to Make Disclosure of the Location of Records and the Identity of the Records Custodian.
OK, that heading kind of speaks for itself. Following item #2 in yesterday’s post, each copy of a scene has a set of 2257 Compliance paperwork associated with it. There should also be a model release that contractually allows a producer to distribute the scene/photos as well. The 2257 Compliance Statement identifies not only the performer’s name and date of birth, but it also identifies the title of the project, the date of production (very important, since it is used in conjunction with the DOB of the performer to verify age), the identity of the Custodian of Records (usually the producer or a legal representative), and the address where those Records are going to be maintained. The Custodian of Records cannot be a company – it must be a real person.
The Regulation covers printed materials such as magazines and books, as well as videotapes and film. Until the 2004 amendments, there was no clear mention of how the 2257 Compliance Statements needed to be displayed on websites and digital media. Here’s the quick breakdown in “2257 Regs for Dummies” fashion:
- Books/Magazines: Disclosure must be printed on the cover or copyright page.
- Videotape/DVD/Film: Disclosure must appear in the first minute, before the first scene, or during the closing credits, and it must appear long enough to be read by the average viewer.
- Websites: One proper notice of the Disclosure may suffice. As far as the location of the Disclosure, the 2004 Amendments requires the Notice of Compliance to appear on the site’s homepage or principal URL (not a link). Subsequent pages can have links to a separate page that displays the Notice of Compliance Statement, but the first time the site addresses the location of the Notice, it is required that the full Disclosure is written out – but the verbage of this is confusing and is being argued. Font size and color are not specified, which is kind of a loophole as well for producers who want to avoid prosecution by saying that their Disclosure notice is written on the website, just in the same color as the background on which it is written.
4) The Duty to Make the Records Available for Inspection by the Attorney General.
Again, this is easy to understand, but confusing as to how. Obviously, the Attorney General is not going to make the rounds himself (or herself). Anyone the Attorney General appoints to do these inspections can do these inspections. The interesting thing is that neither John Ashcroft, the Attorney General at the time, nor any prior Attorney General has ever gotten around to appointing anyone to specifically handle 2257 inspections. The 2004 Amendments shifts a little to include those persons deputized by the Justice Department to conduct 2257 inspections.
2257 inspections can only happen between 8:00am and 6:00pm local time, and any other times that the Custodian of Records might be conducting business. That little bit at the end there covers any producers that might be purposefully working the night shift to avoid such inspections.
The problem with this section of the Regulation is not how it affects larger production houses, but more the independent adult filmmaker and solo performer/producers, who tend to create their content in their spare time, so “office hours” are not formally set. The Regulation also requires the public notification of the address of where the records are kept – so for independent performer/producers, that means that unless they rent an office space with personnel for the express purpose of holding onto paperwork just in case the Feds come by, they are legally obligated to announce their personal address to the world. It leans on freedom of speech, freedom of expression, and personal privacy so heavily that the Free Speech Coalition regularly contests this bit of legalese as being unreasonable and unconstitutional.
At this time, the Regulation limits 2257 inspections to once in a four-month period, unless more frequent inspection is justified and permitted due to suspicion. Agents are also allowed to copy any documents inspected, and any “plain view” seizures of any evidence of a felony whether or not it is associated with 2257 Regulations are allowed. In addition, and this is where it also infringes on constitutional privacy laws, inspections may be done without formal announcement. Obviously that makes sure that paperwork is constantly being maintained in a lawful manner, but for those performer/producers who work out of their homes, it can be both jarring and intrusive to have federal agents come into your home when you have your non-XXX life going on, including when you might have company.
I will address a few more 2257 issues over the next few days and will revisit this topic from time to time, including electronic means in which to organize and file your 2257 paperwork, as well as definitions of terms used in the legislation and how the current 2257 Regulations affect “free porn” sites. Section 2257 is often contested, often debated, and constantly being reviewed and re-reviewed by adult industry lawyers and producers, is a hot topic at most adult industry conventions, and is most likely going to go through several more revisions, with more amendments added. The best that most of us can do is try to keep up.
**Disclaimer** I’m not a lawyer! Should you have any legal questions, please consult an attorney specializing in 2257 legislation (I can direct you to several if you would like). Although this information is meant to be educational and informative in nature, laws are constantly changing. Only a lawyer can provide you with specific advice to rely on. I cannot be held responsible for (1) any person’s reliance on the information provided in this post, whether or not the information is correct, current or complete, nor (2) the consequences of any action you or any other person takes or fails to take, whether or not based on the information provided by or as a result of the use of the information provided in this post.