Page 35 - AVN June 2015

know that you can’t go too long without a traffic
diversion for a shooting location. Heaven and the
Los Angeles City Hall only know how often the 105
Freeway near LAX is closed for a shoot. Whether adult
or not, most locales require a permit to shoot motion-
picture or television production outside of a studio.
A studio is a commercial business, requiring proper
licensing and zoning clearance.
To discuss local requirements for motion picture
location permits and studios would turn this article
into a multi-volume treatise. Generally, suffice it to say
that usually a motion picture studio—of any kind—is
listed as a permitted use in certain zones and, in some
cases, a conditional use in others. (A conditional
use is one that requires a conditional use permit;
the nomenclature varies from one place to another,
sometimes called “special uses” or something to that
effect; the impact is the same.) However, beware of
this: Sometimes a locale will attempt to require an
adult studio to be classified as an adult use: 500 feet
from this; 1,000 feet from that. Remember? Nope.
See Voyeur Dorm, L.C. v. City of Tampa Fla., 265 F.3d
1232 (11th Cir.2001). Challenging such an assertion,
however, can be an expensive proposition.
Health Tests
There is no statute or regulation of which anyone
is aware requiring that adult performers submit to
STD tests in advance of a shoot. However, as noted
below, there is potential liability. There are industry
standards, of sorts—and those standards are not all
that clear. Now, although conformance with industry
standards is a good defense, the counter allegation
might be that it is a negligent industry, especially in
California with all of the Cal/OSHA regulations and
Measure B. Of course, the way to avoid problems is
avoid diseases.
Insurance
If you ever went to the emergency room or urgent
care, you may recall that after the “do you have
insurance?” question, the second one is “was this an
on-the-job injury?” The reason for the second question
is that, in apparently every state, the sole remedy
for on-the-job injuries is workers compensation
insurance.
Here’s how that works: Back in the 19th century,
the Industrial Revolution created some pretty
hazardous jobs, especially mining and heavy
manufacturing. Workers were injured. However, under
the law that it existed, an employer wasn’t responsible
for an employee’s injury unless the employer was
negligent. If the employee was injured as a result
of his own stupidity—and you can be sure that it is
something that happens constantly—the employer had
no responsibility for the injury. Much litigation took
place over an issue of whether the employer was at
fault. The bottom line was that men who were injured
on the job often were on their own for obtaining
treatment or compensation for loss of earnings.
The solution was “workmen’s compensation” laws,
later changed to workers’ compensation. The idea was
to create a quick and efficient way of compensating
employees for on-the-job injuries. Here’s how it
works:
Every state has a workers’ compensation scheme,
although they certainly vary from state to state.
Fundamentally, however, they require employers to
obtain workers’ compensation insurance on their
employees. That insurance has a statutory/regulatory
scheme whereby certain injuries are compensated in
an established way. If an employee suffers a broken
foot on the job, the insurance is required to pay a
certain number of weeks of pay plus the medical
treatment. The whole process is administrative. The
idea is that the employer wants to get the employee
back to work. The intricacies of the process are
beyond the scope of this article. Importantly, however,
every state has severe penalties of one or more sorts,
including criminal and substantial civil liabilities,
for failure to have in place workers’ compensation
insurance.
However, he issue of whether motion picture and
television performers are employees or independent
contractors according to workers’ compensation
laws is not entirely clear. It is a function of state law.
The issue of employee-versus-independent-contract
under workers’ compensation laws is not necessarily
governed by the same rules as those of the IRS, the
Department of Labor or local taxing authorities. Why
is this important? In the first place, there is the issue
of rates. Rates of workers compensation insurance are
based on risk. That, obviously, could be a problem.
Oddly, one of the worst ratings of any industry is law
firms. However, the issue of rates for adult shoots is
not all that clear. If a performer acquires an STD on
the set, workers’ compensation should kick in. And
then some states, particularly California, have the
“serious and willful” method of employees getting to
employers for more than comp.
Generally
Years ago, at an Internext seminar, an audience
member asked a complicated question about shooting
content. The author’s response was to the effect
of, “The answer is a function of local law; you need
to consult your attorney.” “I don’t have one,” the
questioner said. The response was, “Do you have a
death wish?” Still applies.
Details on cases referenced above: California, People v. Freeman, 46 Cal.3d
419, 250 Cal.Rptr. 598, 758 P.2d 1128 (1988), cert. denied, 489 U.S.
1017, 109 S.Ct. 1133, 103 L.Ed.2d 194 (1989); see also California v.
Freeman, 488 U.S. 1311, 1314-15, 109 S.Ct. 854, 102 L.Ed.2d 957
(1989)(denying application for stay because California Supreme Court
decision in Freeman supported by adequate and independent state grounds);
New Hampshire, State v. Theriault, 158 N.H. 123, 960 A.2d 687 (N.H.
2008); and New York, People v. Kovner, 96 Misc.2d 414, 409 N.Y.S.2d
349 (N.Y. Sup. 1978).
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