2257 For Dummies

[+ Lucky]

The 2257 federal law is meant to protect children, that is, those under the age of 18. A synopsis from modelinsider.com:

 

2257 for Dummies

 

http://www.modelinsider.com/community/styles/terran_tribune/imageset/icon_post_target.gifby Emeritus on Wed Oct 28, 2009 5:24 pm

People seem not to understand what the requirements of 2257/2257A are. There is no "part" that applies; either all of 2257 applies or none of it does. Herewith a distillation of the regulation. THIS IS NOT ALL OF IT. Except for the section titles, every word is from the official government law or regulation or official government comments to the regulation (although I have reordered it slightly).

 

The segments below are aimed at “primary producers” (which, on MI, means photographers) but 2257 also applies to “secondary producers” such as, for instance, models who post images of themselves on a website or who have a paysite.

 

WHAT THIS APPLES TO:

 

Sexually explicit conduct:

 

“sexually explicit conduct” means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person; umm

 

Simulated sexually explicit conduct:

 

conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so. It does not mean not sexually explicit conduct that is merely suggested.

 

It is limited to pornography intended for sale or trade.

 

The effective date concerning depictions of simulated sexually explicit conduct will be 90 days after it is published in the Federal Register as a final rule. [March 18, 2009]

 

The regulatory requirements applicable to depictions of lascivious exhibition apply starting 90 days after the publication of this final rule. [March 18, 2009] The Department does agree that because the final rule will apply prospectively, it cannot address preexisting depictions that constitute actual sexually explicit material only because they display lascivious exhibition of the genitals.

 

MEANING OF “LASCIVIOUS DISPLAY OF THE GENITALS

 

(from the DoJ comments to the regulation):

 

Case law provides guidance as to the types of depictions that federal courts have considered to be lascivious exhibition of the genitals or pubic area, and the Department will rely on such precedent in the context of section 2257 investigations and prosecutions. The leading case is United States v. Dost, which provides a list of factors for determining whether a visual depiction constitutes lascivious exhibition:

 

(1) Whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

(2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

(4) whether the child is fully or partially clothed, or nude;

(5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

 

Only the third factor is necessarily dependent on the age of the person depicted. The other factors provide guidance as to the types of depictions that would constitute lascivious exhibition for purposes of section 2257 and part 75, as well, even though those sections apply to any performers regardless of age.

 

RECORD-KEEPING REQUIREMENTS:

 

For each performer portrayed in such visual depiction, create and maintain records containing the following:

 

(1) The legal name and date of birth of each performer, obtained by the producer’s examination of a picture identification card prior to production of the depiction.

(2) All performers, including minor performers means all performers who appear in any visual depiction, no matter for how short a period of time.

(3) The records shall also include a legible hard copy or legible digitally scanned or other electronic copy of a hard copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible hard copy of a picture identification card.

(4) The records shall include a copy of the depiction, and, where the depiction is published on an Internet computer site or service, a copy of any URL associated with the depiction. If no URL is associated with the depiction, the records shall include another uniquely identifying reference associated with the location of the depiction on the Internet.

(5) Any name, other than the performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name.

(6) The primary producer shall create a record of the date of original production of the depiction.

(7) If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service) that contains one or more visual depictions of an actual human being engaged in actual or simulated sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer shall add the additional title or identifying number and the names of the performer to the existing records, and such records shall thereafter be maintained in accordance with this paragraph.

(8) A primary or secondary producer may contract with a non-employee custodian to retain copies of the records that are required under this part. Such custodian must comply with all obligations related to records that are required by this Part, and such a contract does not relieve the producer of his liability under this part.

 

INDEXING REQUIREMENTS

 

(9) All such 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, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service).

(10) All such 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, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to an Internet computer site or service).

 

LOCATION OF RECORDS

 

Any producer required by this part to maintain records shall make such records available at the producer’s place of business or at the place of business of a non-employee custodian 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.

 

 

STATEMENT DESCRIBING LOCATION OF BOOKS AND RECORDS

 

Any producer shall cause to be affixed to every copy of the matter a statement describing the location of the records required by this part. A producer may cause such statement to be affixed, for example, by instructing the manufacturer of the book, magazine, periodical, film, videotape, digitally- or computermanipulated image, digital image, picture, or other matter to affix the statement. In this paragraph, the term ‘‘copy’’ includes every page of a Web site on which a visual depiction appears.

 

LOCATION OF THE STATEMENT

 

A computer site or service or Web address containing a digitally- or computer-manipulated image, digital image, or picture shall contain the required statement on every page of a Web site on which a visual depiction appears. Such computer site or service or Web address may choose to display the required statement in a separate window that opens upon the viewer’s clicking or mousing-over a hypertext link that states, ‘‘18 U.S.C. 2257 [and/or 2257A, as appropriate] Record-Keeping Requirements Compliance Statement.’’

 

 

________________________________