Last updated 5/31/2005
Adult Performer Recordkeeping
for U.S. Federal Law 18 USC 2257
Latest news: Update & cross-reference all your records by June 23, 2005
Friends have been calling and emailing me, asking about the latest news on the U.S. law that requires adult websites to have model-I.D. records ready to show federal inspectors.
Some people believe that all they need is a pile of I.D. copies to show that their models were all 18+. The law is much, much more complicated than that.
I've read through the new wording of the law, read all the related AVN articles, read articles on lawyer sites, evaluated various forms people are using to try to comply, and researched articles online, etc. I'm not a lawyer myself so this infopage isn't written in stone -- however it will answer some general questions and give y'all an idea of what work and documentation must be ready by June 23.
This page is a good layman's starting point to understand what the law expects of you. This is not meant to be taken as absolute legal advice. Please check with an attorney, both to make sure you have your records in order, and also so that you'll have someone on retainer if you get Inspected.
If you read my earlier version of this page months age, search the page for ' * ' to find the most important changes.
Read the law - even if you have a hard time unraveling all of it:
18 USC 2257
Department attorney's 7 clarifications
Questions answered regarding "mere nudity", i.d. types, etc. Important info.
28 CFR 75, which amends 18 USC 2257 -- see 3rd column
28 CFR 75
with Dept of Justice Commentary
Rearranged in order of its relevancy to each part. For easier comparison, use your browser menu to select View-->Text Size-->Smaller text.
Attorney General's comment about objections, in
Response to Public Comments on the Proposed Rule.
"Do I have to comply with these recordkeeping laws?"
Remember, each violation of the law (even small errors or omissions) can be a separate felony.
These are federal laws which apply to U.S. producers, photographers and websites. 18 USC 2257 became law years ago, so the requirements for keeping I.D. copies have been around for some time. The changes in 2005 make things more complicated.
18 USC 2256.110 states that ''Sexually explicit conduct'' means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals or pubic area of any person.
Note the law is worded as "OR", not "AND", so if you have any "sadistic" material even without intercourse or nudity, the feds will still probably regard your material as adult. Also, the gov't generally has a very wide interpretation of what is "sadism"; even physical restraint qualifies as sadism.
This law intends that a minor should not appear in a Work that is adult-oriented, in other words not even a pic of a fully dressed kid displayed NEXT TO a pic of adults having sex, or in the same website as adult material -- which means that you should have I.D. info for ANY person appearing in each of your Works (video, website etc), regardless of whether they're shown doing any adult behavior. This includes anonymous hands and feet sticking into frame.
"Are they out to get me?"
Interestingly, the law is written in such a way that an Inspector can either 1. show up, inspect your stuff and give you a list of things to fix before next time he visits -OR- 2. show up, inspect your stuff and charge you with a felony for each accidental paperwork error or omission. We have no way of knowing which approach an Inspector will take. Try to be professional but nice. :)
2. COPIES OF EACH WORK
4.MASTER LIST or DATABASE
"In any film or videotape that contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement referred shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer."
For any program that doesn't have end credits: "Any other film or videotape shall contain the required statement within one minute from the start of the film or videotape, and before the opening scene, and shall display the statement for a sufficient duration to be read by the average viewer."
"The required statement shall be displayed in the same typeface as the names of the performers, director, producer, or owner, whichever is larger, and shall be no smaller in size than the largest of the names of the performers, director, producer, or owner, and in no case in less than 11pt type, in black on a white, untinted background."
"For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer."
The label must contain Title of Work (or I.D.# of work), Date of Production, Custodian of Records Name, and Address of Records.Example:
Title of Work (bondage video): Bondage Girlfriend BG001. Date of Production: August 1, 2000. Custodian of Records: Lori Smithee for Open Door Inc. Address of Records: 17420 Lilac Lane, North Hollywood CA 91607.
Labeling Websites"A computer site or service or Web address containing a computer-generated image, digital image, or picture, shall contain the required statement on its homepage or principal URL." I put mine at the bottom of the first page (the entry page), but the bottom of the homepage is just as good. If you want to be sure, put the info at the bottom of both your entry page and your homepage.
*Change made this year: You can put the whole statement right there, OR you can put a link to a separate page. If you do the link to the separate page, the wording of the link MUST BE:
18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement
The law says the link and the statement itself must be at least 12pt large in size, and the full statement should be black on a white background.
The label must contain Title of Work, Date of Production, Custodian of Records Name, and Address of Records. For examples of different site's labels, click here. This example might not be exactly right but it's an example anyway:
Title of this work (website): "BEDROOM BONDAGE", also known as BEDROOMBONDAGE.COM. Original Date of Production: November 3, 1997; this website is a work in progress. Custodian of Records: Lori Smithee for Open Door Inc. Address of Records: 17420 Lilac Lane, North Hollywood CA 91607.
*The law says that you must be available for a surprise inspection 9-5 Monday through Friday, -OR- you have to notify the Inspectors of at least 20 hours a week that you will be available. On my site I included this in my 18USC2257 statement:
Normal Business Hours: Mondays 12noon-5pm PST, Tuesdays 9am-12noon, Wednesdays 12noon-5pm, Thursdays 9am-12noon, Saturdays 12noon-4pm.
Here is an older version of an 18 USC2257 statement, that I've seen on some people's sites. It includes a phone number, which I think can be a good idea if you're afraid you might step out for a donut and miss the inspectors when they arrive. This older statement is lacking the Title of Work and the Date of Production, but with that stuff added in, it would probably be pretty good:
Custodian Of Records (18 USC 2257): All persons who appear in any visual depiction contained in this website were eighteen years of age or older at the time of the creation of such depictions. The records required by Section 2257 of Title 18 of the United States Code with respect to visual depictions of actual sexually explicit conduct are kept by the custodian of records, Lori Smithee of Open Door Inc., who can be reached at 1-800-555-9332, and has a Recordkeeping address of 17420 Lilac Lane, North Hollywood CA 91607 U.S.A., except with regard to visual depictions of actual sexually explicit conduct made before July 3, 1995, which are exempt from the requirements set forth in 18 U.S.C. § 2257 and 28 C.F.R. 75.
Who has to be the Custodian?
The photographer/videographer/director is a Custodian. Because someone at each shoot has to be sure that a model's I.D. is checked before she performs.
Also, each product (website, video, DVD) has to have a Custodian. For a website, the Custodian will probably be the webmaster, the producer of all the site's images, or the site owner (name on domain).
*I've read carefully the Clarifications essay released by the Department of Justice in May 2005, and it seems to me that the government is not going to allow webmasters to post lists of multiple custodians for a website. They apparently expect an inspection for any single website to be able to occur all at one location, with one Custodian.
*The Clarifications also stated outright that a 3rd party cannot offer to be your Custodian - for instance you can't have your attorney be the Custodian and his office be the Records address. The Clarifications did mention that a 3rd party can help to organize your records by putting them into a database if that means that the Inspector will be able to come to your place and deal with you as the Custodian and the records will all be accessible at your place via computer.
What exactly IS the "date of production"?
Estimates vary on what they mean by date of production. Most producers use the first date they made the video available for purchase. Some use the date they shot the material for the video. For a website, some use the date the site went live (domain registration date). I have seen others give the date of production and then state that the site is "an ongoing work in progress".
Weirdly, in the May 2005 Clarifications essay released by the Dept. of Justice, I still couldn't figure out exactly what they want for date of production. Check with your lawyer.
Address of Records
Inspectors expect to knock on this door and find the records and the Custodian of Records there. PO Boxes aren't allowed.
The "Copy of Each Work"
Start with an empty box or book shelf and add one copy of each video/DVD, a burned CD/DVD of each website, a burned CD/DVD of each videostream or downloadable clip you're marketing, etc.
The law is not clear on how often you should burn a new CD/DVD of your website for the Copy Of Works collection. I suppose a purist would tell you to burn a new one every time you update the site (5 days a week?!) Others are only doing it once a month. Check with your attorney. ;)
You can present the records to the inspector as physical records, or as digital records (on computer).
To see a list of what data is required in each record, click here. Note that the data is NOT a model release. The data for each record is supposed to be separate from non-2257 data: "75.2 Maintenance of Records: Records required to be maintained under this part shall be segregated from all other records, shall not contain any other records, and shall not be contained within any other records."
The inspectors do not want to dig through a bunch of model releases if they're not related to the recordkeeping law. If all you have is model releases, bummer, but work with it - xerox the release from the FIRST time you worked with a model, to use for her Record. Or do a digital database so that you can just copy the names & dates off her first release.
There are 3 parts to each record:
Performer's Legal Name, Other Names, Aliases
The performer records are to be filed in order of the performer's real names, in alphabetical order of LASTNAME,FIRSTNAME.
If you worked with a performer, then later their legal name changed AND you worked with them again after that, you need to have data of both names in your records.
Performer's I.D. copy & related info
What kind of "copy"? The law says copy can mean xerox, photograph, digital copy, or video copy. The important thing is an inspector should be able to read the birthdate, and be able to read the i.d. number in case they want to check its validity with, say, the driver's license offices.
*According to the latest version, for an in-U.S. model and photographer, only a state driver's license, state photo i.d., U.S. passport, or U.S. green card are valid. For out-of-U.S. model and photographer where the material is then presented within the U.S. later, the model's own country's passport is valid.
The law says you must get a copy of a 2nd photo i.d. if the first i.d.'s photo is unclear or doesn't look like the person.
Attorneys suggest you can also request a second I.D. just to prove to the government that you were trying to be extra-careful about making sure the performer wasn't using a fake I.D.
There is NO reason to photograph a social security card! If you want a performer's SS# for tax reasons, have them write it down... they should not have to be carrying their SS# cards around to be photographed. The SSA asks citizens NOT to carry their cards around all the time.
3. LIST OF PRODUCTS & URLs
A list of where that performer has appeared in your works (video names or numbers, internet website URLs etc.)
The laws ask for video title, book title, title of work, or website URL.
If you just have a bunch of videos or DVDs, you could xerox a full list of all your works, and then circle each work that applies to that model, and attach that to the performer's record.
However, if you have a website, things get complicated, and you may have to go with a computer database or specialized search program to keep the URL lists constantly up to date. ***Note: the recent Justice Dept Attorney's Clarifications indicated that your tracking can start with images produced June 23, 2005 and onward -- you don't have to go back through 10 years worth of URLs and crossreference them to each model.
*The recent Clarifications provided by the Dept. of Justice indicates they really DO want the Record to list every URL associated with images of the model. (Originally, people were hoping they just meant the website URL, not all its inner pages and images. But the Clarifications state they do not mean "just" the website URL.)
People are now interpreting this two different ways:
1. Every URL -- the URL of each JPG of the model, the URL of each backdrop page presenting a JPG of the model, the URL of each thumbnail image of the model, and the URL of each backdrop page presenting thumbnails of the model.
2. The webpage URL that introduces the model's "section" of the site or each webpage URL that starts a photoset of the model. (Plus any URLs where an extra image appears of the model, such as a banner of the model, or a feature photo on the homepage, etc.)
Only your attorney knows for sure. ;) (And even he doesn't know for sure I guess, since different attorneys are interpreting this different ways.)
By the way, if you decide to go with interpretation #2, you could install a full-search program on your site (searches both free area and member area) as long as it was set to list EVERY circumstance of the model's name in the search results -- and you were sure to have typed the model's name on every relevant page.
Don't forget incidental performers. A hooded man, even a hand or foot in the frame, counts as a performer, and those apperances must be tracked too.
Note: the law says that if you use a dynamic database and so your images are not served to the same identical URL(s) every time, then you have to present some other kind of unique identifier for the location of each image.
"Indexed or Cross-Referenced"
Keep a master list or database -- What should be trackable and findable:
"For any performer portrayed in such a depiction made after May 26, 1992, records shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, computer-generated image, digital image, picture, URL, or other matter."
***Note: the recent Justice Dept Attorney's Clarifications indicated that cross-referencing can start with images produced June 23, 2005 and onward -- you don't have to go back through 10 years worth of individual URLs and crossreference them to each model.The Inspector should be able to find and view a specific model's record, view a model's list of appearances, view a specific Work's list of performers, look at a name on a site and find the cross-reference in your list to her real last name, etc. etc.
How to do the master list or database?
That's up to you. Smaller companies sometimes just do a single text file, as an alphabetical list of each model by legal last name, and each line lists the entire record info. After all, it's completely searchable. Others are using Excel spreadsheets, MySQL databases, or other database systems. Whatever you use, remember that the Inspector doesn't want to see any unrelated data during the inspection. He should be presented with 18USC2257 data only.
Articles about 18 USC 2257
Questions answered by DOJ (some of this is just too painful!)
Examples of various sites' 18 USC 2257 labels