The past few blog posts make it clear that the wording of the 2257 can be a minefield to navigate. Another section of the regulations that is commonly argued is the definition of “producer” and “secondary producer”. One of the most common misconceptions is that the “secondary producer” requirements are new and were only added with the 2004 amendments. The “secondary producer” requirements have actually been in the verbage since the very beginning.

Here’s the skinny:

• Primary producers: Persons who actually film, videotape, or photograph the content, as well as people who digitize the images.
• Secondary producers: Any person who publishes, reproduces, or reissues the content.

While the definition may seem cut and dried, the definition “any person” within the wording to describe “secondary producers” is just so vague that it can either be over-defined or under-defined as seen fit by anyone wanting to manipulate the verbage to suit their needs. The 2004 amendments adds to the definition of “secondary producers” to include persons who use compliant images for publication for commercial purposes (for example, advertising for a convention or line of DVDs distributed by a PR firm). It also includes “persons who insert an image on a computer site or service and those who manage the content of a computer site or service, and anyone who contracts or otherwise agrees to do those things.”

Webmasters who purchase content from a primary producer that he has contracted, and create a site using that content are obviously “secondary producers”, whether it be print or online. The question, however, is whether or not a webmaster who buys bulk content from a primary producer – that is, someone he did not contract to create specific content, but rather content that is available for purchase in bulk – is responsible for contacting the primary producer to obtain copies of the 2257 Compliance Statements and maintain those records. Isn’t posting a 2257 Compliance Statement with the name and address of the primary producer enough?

Subparagraph (h)(3) of the 2257 further complicates things:

“[T]he term “produces” means to produce, manufacture, or publish any book, magazine, periodical, film, video tape, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted;…”

The wording goes directly against the rest of the regulation for those webmasters who create sites using content for which that they did not specifically contract a company/primary producer. This includes content derived from amateur photographers and videographers who may be submitting footage or photographs as part of a “amateur” adult site or magazine. There are several examples of lawsuits stemming from this example, notably in the arena of swingers magazines and “free porn” sites.

Unfortunately, until the verbage of the regulations are streamlined in such a way that the pedestrian pornographer can comprehend, compliance should be the chosen option. Attorney J.D. Obenberger wrote this in the September 2004 edition of AVN Online:

“If [a webmaster] fails 1) to receive those records from the primary producer and to maintain the required information about the primary producer and 2) fails to create maintain his own records (which would be pretty tough to create and maintain), he has failed to discharge his duty under the Regulations and, if the Regulations are valid, he has committed a crime by publication of the images.”

So under the current Regulations, here are the requirements and options for 2257 Compliance for webmasters who did not create the content themselves but are distributing/reissuing content given or bought:

• Required to keep a set of 2257 Compliance Statements for each actor in each scene that they are intending to have on their site.
• Required to also keep records of the name and address of the primary producer from whom he received copies of the original 2257 Compliance Statements.
• Has the option of assuming the responsibilities of a primary producer by identifying himself as the Custodian of Records in the 2257 Compliance Notice.
• If the primary producer and webmaster have a licensing agreement, any information about the primary producer and any talent used could remain confidential except to those conducting inspections.

Just about every court that has tackled the issue of the “secondary producer” has voted in favor of the webmaster and declared the current version’s definition as invalid. However, the wording is still in the Regulations, so there is no guarantee that every single court in every single state will rule in a similar fashion. If you’re a webmaster, the recommendation is to treat each scene he has on his site as if he had created it himself.

For webmasters that collect their content from multiple sources, this just doesn’t seem practical, if not impossible. But if you’re a webmaster, you need to assume the responsibilities that being a content distributor entails – you HAVE to make sure that all the content that you are offering to the public depicts people who are adults. And that means you have an obligation to make sure that they’re over the age of 18. That’s what the 2257 Compliance Statements are for – if you can’t prove that someone on your site is over 18, then you’re running the risk of showing minors on your site. Is that really a risk worth taking?

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