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Too old to care
Industry Role:
Join Date: Jun 2001
Location: On the sofa, watching TV or doing my jigsaws.
Posts: 52,943
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I don't know if this got put up, with all the troube yesterday. If it did it got lost and it is important. Especially in the light of this thread.
Recently there was a thread about documentation and what was required. There were a lot of ?Experts? giving advice, some of which I thought was dangerous.
So I put my hand in my pocket, well not got the bill yet, and paid for a lawyer practicing in publishing to look at it and give me an opinion.
Here is what was said.
Quote:
At 9:07 AM +0200 10/7/02, you wrote:
>I feel that as a publisher he needs to have the documents, even though he is
>not commissioning the shoot.
>However the real reason is it proves the shoot was professional, and the age
>of the model.
Paul,
I looked at the statute and regulations again, and I believe that your interpretation is the correct one. (The age of the model is clearly the motivation for the record keeping requirements, thus the reason the requirement was passed as part of the Child Protection Restoration and Penalties Enhancement Act of 1990.)
The problem is that the statute is ambiguous. However, the implementing regulations are much more concrete.
In the regulations, 28 C.F.R. 75, in Section 75.1(c) a producer is defined as:
"(c) Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer.
(1) A primary producer is any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct.
(2) A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct."
A photographer would fit under (c)(1). A print publication or Web site operator that only uses other producer's pictures would fit under (c)(2). A publisher that creates and uses its own content could meet both definitions.
Section 75.2 provides that:
"(a) Any producer of any book, magazine, periodical, film, videotape, or other matter that contains one or more visual depictions of actual sexually explicit conduct made after November 1, 1990 shall, for each performer portrayed in such visual depiction, create and maintain records [...]"
The records that must be kept are:
"(1) The legal name and date of birth of each performer, obtained by the producer's examination of an identification document, as defined by 18 U.S.C. 1028(d). For any performer portrayed in such a depiction made after May 26, 1992, the records shall also include a legible copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible copy of a picture identification card.
(2) Any name, other than each performer's legal name, ever used by the performer, including the performer's maiden name, alias, nickname, stage name, or professional name. For any performer portrayed in such a depiction made after May 26, 1992, such names shall be indexed by the title or identifying number of the book, magazine, film, videotape, or other matter."
Section 75.2 does not draw a distinction between primary and secondary producers. However, 75.2(b) provides a specific requirement for secondary producers:
"(b) A producer who is a secondary producer as defined in Sec. 75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in Sec. 75.1(c), copies of the records described in paragraph (a) of this section. Such a secondary producer shall also keep records of the name and address of the primary producer from whom he received copies of the records."
Thus the regulations not only require that secondary producers have a set of records, but also that the records by traceable back to the primary producer. They must be available for inspection at the producer's place of business (75.4), listed as available at a street address not a P.O. box (75.4), indexed (75.3), contain the information contained in 75.6-- including "if the producer is an
organization, the statement shall also contain the name, title, and business address of the individual employed by such organization who is responsible for maintaining the records required by this part," and kept as long as the business is operating and for five years even after a business is dissolved (75.4).
Any primary or secondary publisher should get a copy and read 18 U.S.C 2257 and 29 C.F.R. 75, as getting the record keeping and display requirements wrong does carry potential penalties that include fines and imprisonment.
Now, you said you wanted this in a form to put up on your Web site this is the basic content, in what form would you like it for your site? I can also fill in a few of the surrounding details if you feel it would be valuable.
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Now it?s up to you who you go with, I would suggest that you ask a lawyer. |