Written by: Clyde DeWitt
ORIGINAL WEBSITE: http://www.adultvideonews.com/
The amount of money allocated for “legal” in the lowest of low-budget Hollywood motion pictures eclipses the entire budget of even the most lavish adult videos. The irony of that is that the adult genre is subject to a significantly broader array of regulations. The point of this article is to focus the thinking of producers and manufacturers on some of the legal aspects of what they are doing. Some of these issues have been addressed in detail in previous editions of Legal Commentary; this is more of a summary of some of the problems.
Adult content seems to come about in two ways. The most simple is where a manufacturing company or webmaster company shoots its productions “in-house,” the motion picture being entirely created by employees of the manufacturing company. The more involved process, which is perhaps more prevalent, is where a producer creates content to some degree of completion and sells it to the manufacturer or webmaster. The range of “degrees of completion” go from raw footage and chromes at one extreme to an edited master and a fully laid-out box at the other end of the continuum. The latter is a variation of what is known as a “negative pickup agreement,” the term’s origin found in old-time Hollywood where the movie company would – sometimes literally – go and “pick” the negative “up” from the producer.
THE RELATIONSHIP BETWEEN THE PRODUCER AND THE MANUFACTURER
A negative pickup agreement is an outright purchase of a motion picture; in the adult realm it is a purchase by a manufacturer or webmaster from a producer. In theory, the manufacturer or webmaster acquires all of the rights associated with the motion picture for a cash price. The producer, then, no longer has anything to do with the product, other than the credits. Unfortunately, life in the real world isn’t all that simple, and complexities can accrue even further where nobody writes anything down.
One problem is, naturally, money. Producers sometimes don’t have the cash to shoot on “spec,” so they hit up the manufacturer or webmaster for an advance. Another problem arises because producers are sometimes in-house with the manufacturers. This works fine as long as the campers are happy and there is no outside pressure exerted, either by those with whom the producer and manufacturer are doing business or regulatory folks from various governmental agencies. The concern is that the producer and manufacturer can be accused of being partners, which makes each responsible for the problems of the other.
For that reason, it is important that the relationship between the producer and the manufacturer be carefully defined. If it is truly an arms-length relationship – that is, the manufacturer is one company and the producer is another – it should be kept that way for the benefit of both.
If a manufacturer wants to rent some space to a producer, that’s fine. But be sure that the producer at least has (1) separate phone numbers, (2) a different address, if possible, (3) a lease and (4) separate quarters which are locked with a separate key. It is best for the producer’s quarters to have a separate entrance, if there is any way that can be done. If the producer uses the manufacturer’s office equipment (a bad idea), access codes for copy and postage machines should be used; the producer should be billed monthly at an agreed-upon price.
This is not to say that manufacturers should never lease space to producers. It’s a handy arrangement if that particular producer is a regular source of product. But for the benefit of both, the entities should be kept as discreet as possible, including particularly a provision in any written agreement between the entities that nothing creates a partnership. The consequences of doing otherwise could saddle one entity with problems of the other, like employee grievances, taxes, lawsuits and other miseries.
From here on, then, this article will assume that one of two conditions exists: Either the producer and manufacturer (or webmaster) are one in the same; or the producer and the manufacturer (or webmaster) have a true, arm’s-length relationship.

SHOOTING THE MOVIE
Before building sets and pulling the trigger on any camera, the producer needs to be legally prepared. There are several categories of problems the producer needs to deal with, better in advance than “on the fly.” The significant ones are:
• Performer Releases and Identification – While the careful producer will have an attorney draw up and review the forms for performers to sign so as (1) to make sure the producer acquires all of the rights to the performances and (2) to comply with the federal labeling and record-keeping requirements, a good many producers have opted to use the form created by the Free Speech Coalition which includes releases and the information required by the federal record-keeping law and regulations. Do this wrong and you could be really screwed up, because if you don’t have the required identification or a release which leaves you owning the performance, you won’t have a movie that you can sell to anyone. Parenthetically, at least one producer has advised Legal Commentary that the FSC release form is cumbersome and could use some streamlining. Indeed, that form is not immune from updates and it might be time for just that, now that it has had a few years of field testing.
• The Crew – If your camera, sound, lighting and other crew people are treated as independent contractors, be sure you have releases from them, too. (The term “release” here, and with respect to other artistic things is not technically correct, but industry parlance uses the term so it will be used, albeit incorrectly, here.) Some of these folks have copyright interests in their artistic product; and while you likely could prevail in court on a copyright claim by one of them, do you really want to bankroll the fight? Likely not. The fact of the matter is that they lose their copyright interests in the movie based upon a principle called “work for hire,” which means that if you hire someone as an employee to create an artistic product for you, then you own the product. It is important to know here that copyright releases must be in writing.
• Stills – There are two components of stills. One is the photographer’s copyright interest in his artistic product, the photograph. The other is whether the photographer gets to keep any of his pictures for him- or herself, maybe with the idea of peddling them to a magazine and/or Internet site. Remember that if you have someone shooting stills with a “film waster,” two nearly identical photographs are created by seriatim shots. Think about whether you really want someone peddling photos right out of your movie. A producer or a manufacturer who acquires the producer’s product might want to strengthen the ability to enforce copyrights by insuring that no chromes from the motion pictures are out there being hawked by someone else.
• The Script – If whoever wrote the script is not an employee, thus creating a surefire “work for hire” arrangement, there should be a written agreement with the author. Again, copyright releases must be in writing.
Once on the set, the careful producer wants to make sure that things are all in order. It is of no use to draw up plays before the game if they are not executed properly. Some suggestions about on-the-set activities include the following:
• Performers’ Identification – The federal labeling and record-keeping law requires that the producer examine the original identification document. Because it has become commonplace to require that the performers bring their identification documents along with copies of them (where there is no copying machine on the set), some record should be made to determine that the original documents were examined. At the least, it is prudent for the person who actually examines the original document to make some record of doing so. Perhaps the easiest way of doing that is to have the document-examining person make a notation and signature on the copy, such as “original identification documents examined and accuracy of copies verified by John Smith on this _ day of _, 19_,” accompanied by the person’s signature. A rubber stamp might work well for this.
• Performers’ Releases – Certainly the producer will obtain the signature of each performer on the relevant release. But since you are on the set with a suitcase full of video equipment, why not videotape the release? This procedure is advisable both because it makes an extra record of the identification documents and the release and because it gives protection against the Linda-Lovelace-turned-Marchiano type, who might later claim to have been induced into signing the release and performing in the motion picture by some drug-induced euphoria. As Legal Commentary has advised in the past, take a video of the identification documents, the performer holding them up and explaining that he or she is the identified person and is not performing under the influence of any duress or medication, and maybe even taking a shot of the inking of the release documents.
• Trademarks and Copyrights – On a set once, approximately the following took place: The cast and crew took a break. One of the thirsty cast members consumed a can of soda and placed the container on a table on the set. Nobody noticed, because the can fit right into the scenery. After shooting almost a half hour of dialogue, a cry of “Oh shit!” rang out across the set. The can – trademarks and all – was prominently on display through the entire dialogue shoot. The whole thing had to be re-shot. Adult videos – or any motion pictures for that matter – cannot include anything which is commercially identifiable, including jeans, shoes (this is probably the most risky, because almost all athletic shoes have trademarks or trade dress), tee shirts, soda cans, designer luggage, pictures, automobiles and the like. And a smart producer will have someone review the edited footage with a bounty on finding an identifiable commercial product, place or other indicia of a business.
• The Thorny Issue of Employees vs. Independent Contractors – As explained above, the producer will be in a more favorable position copyright-wise if the cast and crew are all employees, which means W-2 forms and all of the other garbage which attaches to the employer-employee relationship. Notably, the EDD in California takes the position that performers and crew are all employees, leaving the producer with the responsibility for three years of taxes even if they weren’t taken out at the time. The IRS has taken that position as well. Accordingly, producers are advised to pay the cast and crew as employees. (Hint: Write them a salary-advance check for most of the take-home on the day of the shoot and then later send them the remaining few dollars and cents along with the payroll stub on the 1st or 15th; that way the performers get substantially paid on the day of the shoot.) While there are arguments in favor of the position that the cast and crew are independent contractors, the cost of fighting is substantial and the cost of losing can be crippling.
Now that you have shot the movie, it needs to be edited, a process which sometimes is the station of the producer and sometimes that of the manufacturer. There are some issues here, too:
• Music – If music is added (and it should be), the producer or manufacturer needs to have the proper releases from the music people, both author and performers. If you use Beethoven’s Fifth, the copyright has expired, but you still need releases from the performers. Another form!

ACQUIRING THE MOTION PICTURE – THE NEGATIVE PICKUP AGREEMENT
Manufacturers acquiring product from producers these days are, in an unfortunately large number of cases, dangerously sloppy. They tend to forget that if they are at the wrong end of a lawsuit or a prosecution arising from a producer’s screw-up, the producer is not likely to pony up their legal fees or, in the worst case, damages; the producer often does not have the resources to do so and virtually never has any insurance. The manufacturer, on the other hand, often has very substantial assets – and you know what they say about “deep pockets”!
It therefore is important that the manufacturer protect its assets by carefully screening product it is acquiring. Some people, usually producers, assume that everything is fine so long as the performers’ releases come along with the footage. Wrong! As explained above, there is more that needs to be considered.
Previously, scientists believed that most of the countries require prescription if anyone wishes to use kamagra products and get viagra therefore it is important that people should consult a knowledgeable physician to develop a comprehensive approach to managing their MS. Should you be in love along with your associate, but aren’t in a position to fulfill or fulfill the expectations then you’re inviting difficulties in your lifestyle. canadian pharmacy for viagra You brand levitra in usa need this to ensure that your daily regimen has enough vital vitamins. It would already have been tested first hand and you can get generic india levitra an honest feedback. In addition to taking care to insure that the producer adhered to the above requirements, the manufacturer should be sure that it is acquiring the whole “ball of wax.” The idea of a negative pickup agreement is that the manufacturer will acquire all of the rights to the product from the producer – all of the rights. That includes the right to use the motion picture and the stills for the original feature as well as comps, magazines, Internet sites, promotion or anywhere else a buck can be made from the product. The producer doesn’t keep anything.
The manufacturer also must acquire the materials needed for compliance with the labeling and record-keeping law. This includes copies of the identification documents and the “release,” which includes both the performers’ releases and their disclosure of the information required by the labeling and record-keeping law.
A copyright assignment – which is the essence of a negative pickup agreement – must be in writing, although cases have said that it doesn’t take much to create the needed writing – one case even supporting the proposition that the endorsement of the check was enough. The prudent manufacturer will do two things: First, require the producer to certify that all proper steps have been taken, including checking identification documents, properly acquiring rights to chromes, and so on – the whole list above. Second, to engage in some kind of audit which as a practical matter means acquiring copies of all of the producers’ documentation, rather than simply the performers’ releases.

EDITING THE MOTION PICTURE, THE BOXES, THE ADVERTISING AND THE ONE-SHEETS
Regardless of whether the final edit is a product of the producer or the manufacturer, there are legal requirements. For starters, keep in mind what the distributors and retailers are looking for. If your product fails to pass muster with that, you will have untold grief from your customers. But the careful manufacturer will go a few steps further, insuring that its tape will pass muster with even the most finicky distributor or retailer. That includes:
• Labeling and Record-Keeping – Over-compliance is the watchword. Put the labels everywhere and include all of the required language.
• “Teen” Issues – One feature of the “Protect Act” says that if something is found obscene, it is jacked up to the status of child pornography if it appears to be a minor engaged in sexual activity. The prudent manufacturer will include a conspicuous disclosure that the performers were all of age when photographed. “All models are over 18” really doesn’t cut it, since the real issue is the age of the performers at the time of the shoot. And, although constitutionally questionable, the Act also targets adults portraying minors. Make sure that it is clear to everyone that the material involves only adults portraying adults.
• Copyrights and Trademarks of Others – Check again and again so as to be sure that nobody else’s products are in your motion picture. Be extra sure!
• Your Copyrights and Trademarks – Do your company names and logos all have the appropriate copyright and trademark indicia? “®” for federally registered trademarks, “™” for trademarks which are yours but not registered and the “©” notice to protect your literary interests. The “®” or “™” should be attached to any word, phrase, diagram or logo which identifies your company as the source of the product. And you can’t use the “®” unless you have been granted a federal registration.
• The Manufacturer’s Address – Most states have a law requiring that the name and address of the manufacturer appear on the box. Don’t forget that one.

AND YOUR LAWYER…
As your author said to one of his clients lately, “You do the movies and I’ll do the law.” Writing a negative pickup agreement or performer release for yourself is about as prudent as filling the cavities in your own teeth to save money on dentists. Perhaps the best approach is to mock up your own documentation and then take it to your attorney so the attorney will have a starting point.

(Clyde DeWitt is a partner in the Los Angeles, California-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 or over the Internet at clydedewitt@earthlink.net. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)