So I Talked To Several Attorneys About TGPs and 2257/4472 Here's What I Was Told

[BoyAlley]

I'm going to axe out my uber thexy gay homosexual yellows for this post.

DISCLAIMER: I am not an attorney, and I can't represent that the information provided is at all true, factual, correct, or otherwise worth its weight in horse crap. Due to the serious nature of the topic at hand, PLEASE talk to your own attorneys about this issue, do NOT rely on what I'm about to share. It's my hope that passing this information on will give you a starting point for discussion with your own council. Again, I am NOT an attorney and the following should NOT be viewed as legal advice.

I talked to a couple of attorneys because I wanted a consensus on TGPs being run by USA folk re: 2257 / 4472 (that have sat on pannels at industry conventions, etc. I don't want to list their names here as some attorneys get pissy about repeating their advice etc.).

Specifically, what I asked was:

"If you have a TGP, and as part of that you include a thumbnail from a sponsor hosted gallery that:

Is 100% non-nude. The picture itself is non-nude (and not explicit in any way, no lascivious display etc.) and obviously the resulting thumb from that picture is non-nude.

BUT

The sponsor gallery that the non-nude picture and thumb were taken from DOES contain other pictures that ARE sexually explicit.

Obviously the sponsor hosting the gallery needs docs because of the explicit imagery. But does the TGP that's only hosting a non-nude thumbnail of an original image that was also non-nude (and not lascivious) from the gallery need to have docs because of the other images there were in the gallery?"

The Answer I Got In A Nutshell:

==============================================

NO. Since the original image itself that the thumb was created from does not trigger 2257/4472, the TGP owner has no obligation to obtain and keep docs on file since he has produced nothing originally based on sexually explicit imagery.

HOWEVER: If the TGP owner takes an explicit thumb or image from the gallery and crops it so that it no longer appears explicit (aka cropping only the face out of a picture that depicts a woman getting fucked), the TGP owner has "produced" a work based on an image that does trigger 2257/4472, and as such does need to obtain and keep docs on file, even though the resulting thumb itself is not explicit.

==============================================


The moral of this story? Sponsors, make sure that there is AT LEAST 1 non-explicit image in every gallery that you offer to your affiliates.

If others get similar legal advise as this, you're going to start getting a LOT of affiliates requesting it.

[Deej]

good stuff homo...

Thanks for sharing

[Stephen]

Originally Posted by BoyAlley

The moral of this story? Sponsors, make sure that there is AT LEAST 1 non-explicit image in every gallery that you offer to your affiliates.

FWIW, I'll verify the advice that you were given.

Sadly, too many TGP operators think that cropping out the naughty bits of an image covered by '2256 makes them exempt from '2257 ? but they're dead wrong and facing a felony charge on each such thumb.

[darling2]

Thanks Boy Alley.

Great and much needed post!

[CaptainHowdy]

I love you BA...

[RawAlex]

BA, while I am sure you lawyers are well versed, etc... there are many issues at play here.

The biggest question in all of this is "what is a visual depiction"? Is it an individual image, or the collected images of a session? A non-nude picture that is part of a set (a depiction) that includes nudity would require 2257, even if the individual image does not show nudity.

To make this more clear, rather than a series of still images, consider a video. A single video is a depiction. The model goes from clothed to nude to hardcore during that video. Any still image taken from that video is part of a depiction that requires 2257.

Further, as nudity is no longer the trigger (lewd display of the genital area, even clothed could require 2257 documents), it would be difficult if not impossible for individual affiliates to determine if a specific single image is or is not part of a grouped depiction, or if it is or is not by itself sufficiently lewd as to require documentation. Effectively it would come down to a judgement call, which none of us should ever be forced to make. If you are in the US promoting porn, get 2257 documents.

Also, non-nude images appearing on a TGP that promoted sites with hardcore banners, example, would likely require documentation because they are part of a work that includes hardcore (the website).

Your lawyers maybe technically correct, but I would be interested to see a more real-world view.

[TheLegacy]

the comical part is when you said, "PLEASE talk to your own attorneys about this issue".

for some webmasters, gfy is their only way of getting legal advice... which I am sure any judge will accept .. NOT!!!

basically the government wants to shut down free content and have webmasters only serve up paysites to protect kids. And before you decide to post anything to a thread, remember - they are looking at this and other webmasters boards all the time to get information about us.

[Michaelious]

Seems like the advice makes sense.

[Matt 26z]

Cropping and covering is one of the biggest questions. Shouldn't someone have asked the FBI agent about this at the XBiz Conference?

[RawAlex]

Originally Posted by Matt 26z

Cropping and covering is one of the biggest questions. Shouldn't someone have asked the FBI agent about this at the XBiz Conference?

The FBI don't make the rules. They read them, they gather information, nothing more. The "is it legal" is up to the judges and the lawyers to figure out.

it is part of what makes this whole discussion a little funny. Think of this:

FBI comes in to do records inspection at a TGP owner's office (his mom's basement?). Anyway, the officer looks at the current website, and asks for model ID's for the first 20 images on the page currently.

The TGP owner replies, "they aren't porn, I don't need them".

The FBI agent says "prove it"

"I don't have to" says the TGP owner, "because the original image isn't a direct picture!"

"prove it".

"Umm, I can't. Click on the thumb and you can see the original gallery".

"sorry, your site is a porn site. You need records for all models on your site".

"but BoyAlley had a lawyer that said I didn't need it! I am in the clear, right?"

"Tell it to Bubba.... and don't drop the soap".

My personal (not a lawyer advice): Don't stand on the head of a pin splitting hairs.

[Jon Clark - BANNED FOR LIFE]

Thanks for shareing, but like you advised, I will discuss this with my own lawyer...

[BoyAlley]

Uhm, RawAlex, no offense but your logic falls apart on many different levels, and the "prove it" dialog you created doesn't even come close to resembling the actual inspection process nor the burdens required by the law.

The following is my personal reasoning and logic, (certainly not legal advice):

This isn't a matter of "splitting hairs", it's a matter of defining what is, and what is not, covered by 2257 / 4472, which is pretty clearly spelled out.

I think the only "iffy" is the lascivious display issue as it relates to clothed individuals, but I think common sense comes into play there (although this is certainly an issue that needs addressed by the courts).

Under your logic, even fully clothed banner ads you get from sponsors would be covered material requiring docs, because the photoshoot the sponsor took and image from to make the banner may have also contained explicit imagery.

What happens if there were 2 photoshoots the same day, one explicit one not? How do you define when the non-explicit shoot ended and the explicit one began?

Hell, using your logic, NO image of any person that has ever done porn could ever be published by anyone anywhere unless everyone kept 2257 docs because no one would ever know if it came from an explicit production or not.

There is explicit and lascivious, and there is clothed and non-explicit. One is covered by 2257/4472, one is not.

It is very possible therefore, for a movie to be explicit, a person takes non-explicit clips from it: he needs docs as he altered an explicit publication. Then a second person takes screencaps from the already sanitized movie he would NOT need docs as the material he was originally presented with to work from wasn't explicit.

If YOU personally create a work derived from explicit material, you need docs (create meaning not only filming but also what we called the old "secondary" stuff ie make banners, edit movie, crop thumbs, etc).

If YOU personally get material that is not explicit, and make derivative works from it, you don't need docs.

To me, that's the logical way of viewing 2257/4472, and it's my personal belief that is the intent of the laws and regulations.

[Matt 26z]

I know what the lawyers say about cropping, and I actually follow the conservative opinion on this issue, but I also believe this is a gray area that will eventually be clarified in webmasters favor.

This is about actual sexually explicit material, and the regs say nothing about non-explicit material that was cropped from explicit material before going live. So I'm not sure where this is coming from, but I follow it anyway.

[Matt 26z]

Originally Posted by BoyAlley

[COLOR="Yellow"][B]If YOU personally create a work derived from explicit material, you need docs (create meaning not only filming but also what we called the old "secondary" stuff ie make banners, edit movie, crop thumbs, etc).

If YOU personally get material that is not explicit, and make derivative works from it, you don't need docs.

To me, that's the logical way of viewing 2257/4472, and it's my personal belief that is the intent of the laws and regulations.

So if I take a sponsor's XXX image and crop it, I need docs.

However if the sponsor crops the XXX image and gives it to me, I don't need docs.

Doesn't that sound just a tad bit ridiculous?

[BoyAlley]

Originally Posted by Matt 26z

So if I take a sponsor's XXX image and crop it, I need docs.

However if the sponsor crops the XXX image and gives it to me, I don't need docs.

Doesn't that sound just a tad bit ridiculous?

Personally I think the entire regulations are more than a tad bit ridiculous. But that's beside the point, as what I think about the regulations doesn't make them go away.

I'm basing my opinions, and the way I do business, on a conservative view of the regulations in line with what industry attorneys have been telling us.

As I've said on here many times before, I'm a law abiding citizen and I will not play Russian Roulette with my freedom.

[ThreeDeviants]

Thanks for this thread... very informative stuff...

[V_RocKs]

About a video...

Videographer shoots video of a girl/guy combo. However, the first 30 minutes are rated PG-13. The girl ends up being age 17. The videographer broke the law to shoot the video but the published first 30 minutes are not illegal because they don't depict any sexual acts.

[GatorB]

Originally Posted by Matt 26z

This is about actual sexually explicit material, and the regs say nothing about non-explicit material that was cropped from explicit material before going live. So I'm not sure where this is coming from, but I follow it anyway.

Yes they do. When this 2257 thing last made a big hoo-ha 2 years ago it was clearly in the regs. If the original material need 2257 docs then you need it for the edit image. PERIOD.

[Kevin2]

BoyAlley thanks for sharing.

[Splum]

Originally Posted by BoyAlley

NO. Since the original image itself that the thumb was created from does not trigger 2257/4472, the TGP owner has no obligation to obtain and keep docs on file since he has produced nothing originally based on sexually explicit imagery. HOWEVER: If the TGP owner takes an explicit thumb or image from the gallery and crops it so that it no longer appears explicit (aka cropping only the face out of a picture that depicts a woman getting fucked), the TGP owner has "produced" a work based on an image that does trigger 2257/4472, and as such does need to obtain and keep docs on file, even though the resulting thumb itself is not explicit.

What a crock of shit, you are just trying to make sponsors do your dirty work for you and eliminate some competitors.

[BoyAlley]

Originally Posted by Splum

What a crock of shit, you are just trying to make sponsors do your dirty work for you and eliminate some competitors.

How on earth is asking sponsors to start including a non-nude image or two in their hosted galleries asking them to do "dirty work"?

It seems to me a sensible thing to do, 2257/4472 or not?

[RawAlex]

Originally Posted by Matt 26z

So if I take a sponsor's XXX image and crop it, I need docs.

However if the sponsor crops the XXX image and gives it to me, I don't need docs.

Doesn't that sound just a tad bit ridiculous?

Actually, the funny part is that you do still need docs, but you just don't know it. You have been mislead - or you are part of a conspiracy to avoid 2257 documents. Another great reason to ask for documents no matter what, because you never know. Did they crop out the couple fucking in the background on the picture?


Boyalley, the point is this: The FBI points at an image on your website, and says "show me the model release for this image on your porn site". You have to either (a) produce a document, or (b) produce proof that it isn't covered. How do you suggest to do that?

The point of splitting hairs is this: nobody has clearly defined at what level they are checking the "porny-ness" of an image or video. If a series of pictures is taken and published together, and some are nude and some are not, are all of them porn? After all, they are part of the same work.

Now, what if still images are extracted from a video, which starts dressed and ends up in a gangbang... do the image captures of the models with their clothes on need documents? What happens if still images were shot while a video camera was running? Are those images somehow different from stills extracted from a video? After all, they are all part of the same work, and that work is pornographic in nature, subject to 2257 requirements.

All I am saying is that your lawyer's opinion is interesting, but without some of the basic terms more clearly defined, it is just speculation.

I am waiting to see what the lawyers closest to the subject have to say at the point that a ruling is made and things are put in place. Until then, this is very speculative and lacking in information.

[dynastoned]

it's just a fucked up situation no matter how you look at it. there is such a big grey area because the 2257 requirements are so general. it just puts all the small affiliates between a rock and a hard place.

[BoyAlley]

Originally Posted by RawAlex

All I am saying is that your lawyer's opinion is interesting, but without some of the basic terms more clearly defined, it is just speculation.

I am waiting to see what the lawyers closest to the subject have to say at the point that a ruling is made and things are put in place. Until then, this is very speculative and lacking in information.

I agree with you 100% that nearly EVERYTHING related to 2257 is "speculative and lacking".

Speculate and move forward using the best advice that we can get, and with a full intention of obeying the spirit of the law, is the best we can do at this point.

[RawAlex]

It's okay... here is an even funnier deal. Imagine for a moment that CNN runs a story about porn people. They pop up a headshot of, I dunno, Jenna. However, that image is a crop of a picture of her getting her naked pussy licked.

Do they need 2257? Normally no, because they are media - but wait, there is NO EXCEPTION FOR MEDIA IN 2257.

Online video stories with box covers. They are quite possibly going to need 2257 documents for all the people on the boxes, because they are involved in sex acts and those are images.

Because there is no clear indication of how any of these sorts of situations will be handled, we are sitting in a #6F6F6F grey zone. Good luck to US based webmasters and companies.

[Rochard]

None of this will ever fly in court - plain and simple. Somewhere along the line the amount of record keeping becomes unbearable.

Even if this is to be the case, there is no way for anyone to verify the records given out as proof of age. Anything can be faked in today's world.

Perhaps law enforcement - and the US Attorney General - Should instead turn their attention to how minors get these fake ids in the first place. Nearly everyone under the age of twenty-one has one.

And when the US Government is handing them out like candy, well, only the US Government is to blame.

[c-lo]

Thanks for the info, BoyAlley...

I understand it in the way you describe it...the only thing I don't understand is why we would have to keep docs for non-nude (head-shot) banners from sponsors, as they link only to a website and not directly to corresponding explicit pics of the models.

I wouldn't think docs would be necessary for the banner below or similar banners because A) I didn't crop it from a sexually explicit image and B) there are no explicit depictions within the banner.



However, it is possible that the girl in the image is being fisted...so I guess it relies on whether we'll receive the benefit of the doubt & it will be assumed that there is no behavior in the original image triggering 2257 record-keeping or if it is assumed that docs are needed & we must prove that they are, in fact, not.

Any comments/suggestions/complaints towards my understandings are welcome. This is how I see it, but as stated...nothing here should replace real legal advice.

Good luck,
c-lo

I just took all my banner images down off my tgp, so all linking to sponsors will be text only.
Ill make less money but ill sleep easier.

[RawAlex]

c-lo, the question is this: Prove that the original image isn't hardcore. Maybe one of the guys has his cock out stroking it. Maybe she isn't wearing any pants. Maybe there is a second girl licking her pussy.

The way 2257 is written, it would appear almost that you would have to prove you are exempt. When in doubt, the documents would be required.

"she takes both cocks at the same time" could be considered an explicit description.

[Kimo]

cool stuff + those

[Fabien]

Originally Posted by BoyAlley

I'm going to axe out my uber thexy gay homosexual yellows for this post.

DISCLAIMER: I am not an attorney, and I can't represent that the information provided is at all true, factual, correct, or otherwise worth its weight in horse crap. Due to the serious nature of the topic at hand, PLEASE talk to your own attorneys about this issue, do NOT rely on what I'm about to share. It's my hope that passing this information on will give you a starting point for discussion with your own council. Again, I am NOT an attorney and the following should NOT be viewed as legal advice.

I talked to a couple of attorneys because I wanted a consensus on TGPs being run by USA folk re: 2257 / 4472 (that have sat on pannels at industry conventions, etc. I don't want to list their names here as some attorneys get pissy about repeating their advice etc.).

Specifically, what I asked was:



The Answer I Got In A Nutshell:

==============================================

NO. Since the original image itself that the thumb was created from does not trigger 2257/4472, the TGP owner has no obligation to obtain and keep docs on file since he has produced nothing originally based on sexually explicit imagery.

HOWEVER: If the TGP owner takes an explicit thumb or image from the gallery and crops it so that it no longer appears explicit (aka cropping only the face out of a picture that depicts a woman getting fucked), the TGP owner has "produced" a work based on an image that does trigger 2257/4472, and as such does need to obtain and keep docs on file, even though the resulting thumb itself is not explicit.

==============================================


The moral of this story? Sponsors, make sure that there is AT LEAST 1 non-explicit image in every gallery that you offer to your affiliates.

If others get similar legal advise as this, you're going to start getting a LOT of affiliates requesting it.

Now they say that homos are bad people
(bad joke i know)

Thanks a lot man for sharing

[UncutBucksMike]

We will be providing redacted ID's along with other required info including Model's legal name, maiden name, and all known aliases (yes, these are all required for 2257 compliance) for any affiliate who is "displaying" our images on their domain. We will also be providing non-explicit content for those who wish to swap out anything explicit and avoid 2257. This will all be ready by May 1, 2007.

[Tom_PM]

So what if a person came along and decided to start a company which purchases explicit images and retains all documents. Then they crop them to face shots only and resells them.

The new buyers are only buying crops, which the cropping company maintains records for.

Do the new buyers also now need docs?

[Pete-KT]

Thanks Boy Alley

[RawAlex]

Originally Posted by PR_Tom

So what if a person came along and decided to start a company which purchases explicit images and retains all documents. Then they crop them to face shots only and resells them.

The new buyers are only buying crops, which the cropping company maintains records for.

Do the new buyers also now need docs?

The answer would appear to be yes. The company that crops the images would be obliged to provide the documents, as they are aware that the original images are "porn".

Interestingly, there isn't any direct of explicit rule in the law for people who are mislead by suppliers. It gets to the same thing, in the end, if you are a US based webmaster or company, and you have a model on a website, you need an ID, even if the image doesn't appear to need documents - because you have no way to know for sure.

When in doubt...

[BoyAlley]

Originally Posted by PR_Tom

So what if a person came along and decided to start a company which purchases explicit images and retains all documents. Then they crop them to face shots only and resells them.

The new buyers are only buying crops, which the cropping company maintains records for.

Do the new buyers also now need docs?

That's a very good question.

[Jay-Rock]

Thanks man!

[Tom_PM]

I think the bottom line is that if the inspectors preview images/movies where they believe there is need for documents to be saved, they will ask for them.

The one inspector also stated at the xbiz seminar that by all means if you can point them to the original producer they would be appreciative. They have more interest in inspecting direct producers who actually shot the content. Having a "2257" page which lists the *real* producers name and address definitely seems to be a good faith effort that they're taking seriously. After all, it's only helping their job.

[spacedog]

What I don't get is the pre 1995 exemption..

I was double checking all my shit to make sure my xref is all coordinated & I come across some sets that were shot prior to 1995, but I xref them anyway & included MR & ID loc as was required, but my question is, how the fuck do you prove it's pre 1995 if ever inspected?

Even though pre 1995 is exempt, I xref it anyway, because it's too big a risk to not.

[spacedog]

Another part about this whole shebang is the alias, maiden name xref'ing..

What if the documents I get from content provider don't tell me this.

How the fuck am I supposed to know all the names she's been given or used on paysites?

While I might name Jane Doe as Donna on my site, paysiteX might name her Lisa while another calls her Nadia, so how the fuck does the DOJ expect me to know all this.