Page 30 - AVN May 2015

LEGALESE | | By Clyde DeWitt
Shooting releases –
everybody
knows about
them because
”Sure, 2257 and
you can’t sell
content if you
don’t comply
with those. But
there are many
others.
Script When producing content, follow these steps
Tower, you instantly own the copyright on the photograph.
To all rules, of course, there are exceptions, and the big
exception to the above is what is known as the “work for
hire” doctrine. A pure example of a work for hire arises
where, say, you are an employee of Big Video Productions
Incorporated and you shoot the photo in furtherance of Big
Video’s commercial endeavors. In that example, Big Video is
the author, not you.
LEGAL NEWS
Clyde DeWitt is a Las Vegas and Los Angeles at-
torney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information
can be found at ClydeDeWitt.com. This column is
not a substitute for personal legal advice. Rather,
it is to alert readers to legal issues warranting
advice from your personal attorney.
Shooting adult content implicates many legal issues, not all
of which are particularly obvious. Sure, 2257 and releases,
everybody knows about them because you can’t sell content if
you don’t have them. But there are many others.
Start with the most talked about: 18 U.S.C. §2257 and
its underlying regulations, generally dubbed just “2257.”
You need a form—an idiot-proof form—which needs to be
completed for each performer. While you may ultimately feed
the results into a computer database, you should discipline
yourself to use the form on every performer every time.
Always, always, always!
2257 is like the Infield Fly Rule; it is a rule because those in
charge of making the rules—Congress, in this instance—said
so; just as the Major League Baseball Playing Rules Committee
makes the rules for all members of the National Association of
Professional Baseball Leagues. (Never is this column short on
trivia!)
Other legal concepts have developed over centuries. To help
understand some of them, it is useful to review the rights
associated with photography. Fundamentally, there are two
sets of rights: 1) the rights of the person or organization that
made the picture—the “author” according to the Copyright
Act; and 2) the rights of each person appearing in the
photograph. Consider them in turn.
Authors’ Rights
The rights of the author of a picture arise automatically when
the photograph is “fixed in a tangible medium.” In plain
English, that means, for example, if you take a photograph
with a digital camera, the photograph is “fixed in a tangible
medium” when the photograph is preserved in the computer
chip in your camera, which means the instant that you pull
the trigger on the camera. So, if you take a picture of the Eiffel
Like most exceptions to rules, there are gray areas. If you
are an employee of Big Video in the purest sense of the word,
meaning you get a W-2 form at the end of the year, have taxes
taken out, and so on, then it is truly a work for hire under the
above circumstances. However, if Big Video pays you as an
independent contractor or independent business to take the
photo, it is not always that clear. It is beyond the scope of this
article to delve into the formula that determines when non-
employees are subject to the work for hire rule and when they
are not—but the lesson to learn is that a written agreement
always solves the problem. If the written agreement says
that it is a work for hire, then it is. Period. Like many other
situations, the most simple of written agreements can avert a
host of problems.
In the example where you take a picture all by yourself,
there is only one author. However, suppose you are the author
of raw footage that later is edited. What the editor creates is
not what you created. And then there is the crew—lighting
and sound. The issue here is whether they are co-authors.
Well, if there is a work for hire agreement in place with the
editor and the crew, there will be no issue about who is the
author.
Two other items: Scripts and music. Scripts, if you
remember them, are themselves subject to copyright; once
the script is pounded out on a computer, it is fixed in a
tangible medium. So is music: the tune, the arrangement, the
performance and the lyrics.
The universal solution for scripts is to either 1) buy the
script from the author of the script—that is, have the author
transfer the copyright to you (which, by law, must be in
writing to be effective)—or 2) enter into a work for hire
agreement before the script is written (which should be in
writing). Either needs to be in writing as a practical matter.
Music, as is obvious, is more complex. If the music artist
also is the author of the tune, the arrangement and the
lyrics—and there are plenty of folks who will do a pretty good
job of this for you—the work for hire or assignment of rights
procedure can work, just as for a script. If you are trying to use
existing music that the copyright owner wants to continue to
use for other purposes, the term of art for obtaining the rights
to use the music in a movie is a “synchronization license” or
“sync license” in Hollywood parlance. Don’t try this at home.
Once someone has acquired the rights to a motion picture
from all of the various participants in its production, as
described above, it is important to protect those rights. The
“fixed in a tangible medium” thing doesn’t get you much in
the way of remedies against infringers—your lost profits, the
infringers’ ill-gotten gains, each of which is impossible to
prove, and court costs, all of which are eclipsed by the cost of
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