Adult Entertainment Law – Walters Law Group https://www.firstamendment.com First Amendment & Internet Law Experts Mon, 22 Dec 2025 13:59:28 +0000 en-US hourly 1 https://wordpress.org/?v=6.9.4 https://www.firstamendment.com/wp-content/uploads/2020/06/logo-1-100x100.png Adult Entertainment Law – Walters Law Group https://www.firstamendment.com 32 32 Using Copyrighted Music in Adult Entertainment Content https://www.firstamendment.com/using-copyrighted-music-in-adult-entertainment-content/ Wed, 15 Oct 2025 15:51:52 +0000 https://www.firstamendment.com/?p=6247

Using Copyrighted Music in Adult Entertainment ContentBy Lawrence G. Walters, Walters Law Group
Published October 15, 2025

Using music in adult entertainment content might seem like a simple way to enhance the mood—but it’s a legal minefield. From copyright infringement to licensing hurdles and fair use misconceptions, adult content creators face unique challenges. This post explains how copyright law applies to music in adult media, and what steps can protect creators from legal risks.

Copyright Infringement in Adult Content

Using copyrighted music without permission in videos, live streams, or promotional clips can result in severe penalties. Under U.S. law, rights holders—including artists, composers, and record labels—control how their work is used, distributed, and reproduced.

Even short clips or background audio may trigger infringement claims unless a valid exception applies. Violations can lead to:

  • DMCA takedown notices
  • Licensing fee demands
  • Lawsuits and statutory damages (up to $150,000 per infringement for willful violations)

Many music publishers refuse to license songs for adult content due to reputation concerns, making legal use of mainstream music even harder for adult creators.

Understanding Fair Use

“Fair use” allows limited use of copyrighted material under specific circumstances. Courts weigh four main factors:

  1. Purpose and character – Transformative use (e.g., parody or critique) may qualify. Commercial or mood-setting use rarely does.
  2. Nature of the work – Creative works like songs get stronger protection.
  3. Amount used – Short clips help, but not if they include the “heart” of the song.
  4. Market impact – If the use harms the song’s market value, fair use likely fails.

For adult entertainment, fair use is rarely a safe defense. Always consult an attorney before relying on it.

De Minimis Use: When “Too Small to Matter” Still Matters

The de minimis rule applies when a portion of a work is so minor it doesn’t justify legal action—like faintly audible music from a passing car. Courts, however, are skeptical of this defense in commercial content.

If music is added intentionally to set a tone or mood, it’s unlikely to qualify as de minimis.

The Role of Music Publishers and PROs

Music publishers and Performance Rights Organizations (PROs)—such as ASCAP, BMI, and SESAC—license songs for public and recorded use. They monitor online content, issue DMCA notices, and collect royalties.

For adult creators, this creates barriers:

  • Many PROs won’t issue licenses for adult media.
  • Blanket licenses are often unavailable.
  • Enforcement is strict on streaming and subscription platforms.

When possible, negotiate directly with smaller or independent artists more open to licensing for adult content.

Safer Options for Adult Content Creators

Adult producers can minimize risk by following these strategies:

1. Use Licensed Music

Secure synchronization or performance licenses directly from publishers or PROs.

2. Choose Royalty-Free Music

Platforms like AudioJungle, PremiumBeat, and Artlist offer royalty-free tracks—but read the terms carefully. Many exclude adult or “mature” uses and the terms are frequently updated.

3. Create Original Soundtracks

Commissioning custom music eliminates licensing headaches and creates brand consistency. Make sure to get a work-for-hire agreement or copyright assignment from the composer.

4. Consult Legal Professionals

A qualified intellectual property attorney can help evaluate your specific situation and reduce legal exposure.

5. Review Platform Policies

Adult platforms have strict music rules. Violations can lead to account suspension or termination.

Key Takeaway

Adding music to adult entertainment content carries significant copyright risks. Fair use and de minimis defenses are limited, and obtaining proper licenses can be difficult. Creators who invest in original, royalty-free, or properly licensed tracks can protect their content, income, and reputation.

 

Disclaimer: Nothing in this post is intended as legal advice. Please consult an attorney if you have any questions. Lawrence Walters can be reached through the firm’s website, www.firstamendment.com , or on social media @walterslawgroup.

]]> Leading Adult Entertainment Attorney with Over 35 Years of Experience https://www.firstamendment.com/leading-adult-entertainment-attorney-with-over-35-years-of-experience/ Tue, 14 Oct 2025 12:08:35 +0000 https://www.firstamendment.com/?p=6234

Lawrence walters leading adult entertainment attorneyLawrence Walters – Adult Entertainment Attorney

Walters Law Group has extensive experience representing clients in the adult entertainment industry for over 35 years.

Background

Mr. Walters started representing adult industry clients in 1989 during the obscenity crackdown on local Florida video stores renting adult VCR tapes to customers. All cases resulted in acquittals or dismissals. As a result of his pro bono representation of these clients, the community expressed outrage at the governmental censorship efforts, and the elected State Attorney was voted out of office.

He later began representing adult website operators at the dawn of the Internet age and established his reputation as a skilled First Amendment litigator. Walters defended numerous websites throughout the nation that were accused of obscenity violations. His efforts helped discourage the use of obscenity laws to target adult website operators.

Representative Obscenity Cases

  • State of Florida v. Tammy Robinson: Accused of obscenity based on operation of personal website. All counts dismissed after the prosecutor and sheriff were sued for violating constitutional rights.
  • State of Florida v. Chris Wilson: Accused of over 300 counts of obscenity based on user-uploaded content. All counts dismissed after appeals court orders release of Wilson in response to habeas corpus petition alleging First Amendment violations.
  • U.S. v. Karen Fletcher: Accused of obscenity based on publication of text stories on personal website. Avoided jail time based on plea agreement after filing of Motions to Dismiss alleging First Amendment violations.
  • Florida v. Clinton McCowen: Accused of racketeering based on obscenity violations in connection with operation commercial adult website. Resolved by plea after Walters issues subpoena to Google for adult entertainment search history in the community where the case was pending.
  • Florida v. Minakashiben Patel: Store owner accused of obscenity violations for selling 10 X-rated movies. All charges dropped and case dismissed.

Representative Clients

  • OnlyFans
  • Fansly
  • Myfreecams
  • Chaturbate
  • Pornhub
  • PB Web Media
  • Sex.com
  • Livejasmin

Recognitions and Awards

Summary

Walters is recognized as the go-to lawyer for adult entertainment law. He has represented adult industry companies throughout the world for decades. He has also handled precedent-setting cases nationwide, including numerous cases as the United States Supreme Court. Walters has unparalleled experience in the adult entertainment field.

FAQs

What does an adult entertainment attorney do?

An adult entertainment attorney protects the rights of adult content creators and businesses, including First Amendment defense, regulatory guidance, and litigation involving obscenity, IP, and online speech.

How long has Lawrence Walters represented adult industry clients?

Over 35 years, beginning in 1989.

What distinguishes Walters Law Group?

Decades of precedent-setting First Amendment work nationwide and representation of leading global adult entertainment brands.


]]> Adult Website Age Verification Approved by SCOTUS – What Now? https://www.firstamendment.com/age-verification-law-supreme-court/ Fri, 15 Aug 2025 16:26:28 +0000 https://www.firstamendment.com/?p=6151

 Lawrence G. Walters, Esq. – August 4, 2025
age verification laws

The Ruling and its Legal Context

On June 27, 2025, the United States Supreme Court handed down the landmark decision in Free Speech Coalition v. Paxton, upholding the Texas age verification law in the face of a constitutional challenge. The Free Speech Coalition, and other petitioners, argued that the law failed to survive strict scrutiny review which has historically been applied by the courts in online age verification cases. Laws subjected to strict scrutiny are almost always struck down. Texas, on the other hand, claimed that the law merely needed to pass the lenient rational basis test, which was previously used when evaluating laws barring minors from physical adult bookstores. Laws evaluated under the rational basis test are usually upheld. The Oral Argument spanned some two hours and largely focused on which of these competing tests should be used to evaluate the law’s constitutionality.

The Court Adopts Intermediate Scrutiny

But alas, six conservative SCOTUS justices had other plans for the outcome of this case. Justice Thomas, writing for the Court, announced that the law would instead be subjected to “intermediate scrutiny”, which it easily passed. Under the intermediate scrutiny test, laws only need to serve an important governmental interest and be substantially related to achieving that interest. To justify this result, the Court concluded that the Texas law only incidentally burdened the rights of adults to access sexually explicit content online and adults have no First Amendment right to access such content without age verification. In an act of judicial wizardry, the decision parsed out the act of accessing adult content without age verification, which is unprotected, from viewing adult content which adults have a First Amendment right to do.

Arguments from Petitioners and Child‑Safety Advocates

The petitioners, along with other supporting groups, attempted to educate the Court in the briefing regarding the significant burden imposed on adults by the Texas law, given the risks of data breach associated with online age verification, the significant percentage of adults that do not have identification documents, the threat to individual privacy rights, and the chilling effect of the law that stops adults from viewing age verified content. A large child online protection organization, ICMEC, submitted a brief opposing age verification due to the resulting harm to minors who will avoid regulated adult sites and be driven to the dark corners of the internet where they risk exploitation or worse. These arguments were essentially ignored by the Court, which focused on the ready availability of explicit content online and vast use of mobile devices by minors as reasons to uphold the law.

The Industry Reacts and State Laws Loom

Adult industry organizations and free speech advocates were shocked and saddened by the decision. Effectively, the Court cleared the way for other U.S. states to impose online age verification. Most of the pending legal challenges to other existing laws are likely to be dropped. Some state’s statutes may go too far to survive constitutional muster under the intermediate scrutiny standard. For example, Tennessee imposes felony penalties for violations and requires re-verification every 60 minutes. The Alabama law currently in effect requires that platform operators obtain signed, notarized, consent forms from all persons depicted in pornographic content. The North Carolina law requires that all adult content be supported by separate consent forms for each sex act depiction, and each publication of the depiction. Time will tell whether the courts will impose any reasonable limits on the states’ efforts to restrict access to adult content. The Paxton ruling may incentivize some states to impose even more extreme restrictions. We can be hopeful that the First Amendment still has some meaning when it comes to the imposition of burdens on adults accessing constitutionally protected speech.

Immediate Compliance Steps for Website Operators

From a practical standpoint, the Court’s ruling means that adult website operators whose content meets the applicable definition and percentage threshold in a restricted state should immediately implement the required age verification methods or risk civil claims, administrative penalties, or even criminal prosecution. While geo-blocking residents in a restricted state may be an option, geo-blocking produces many false negatives and false positives. Ultimately, the burden will be on the operator to ensure that it has prevented minors from accessing adult content whether through blocking or age verification. Operators should also seek legal advice on any recommended changes to their privacy policies or user agreements in light of these state AV laws. In that regard, operators should be aware of any new AV data that they will be collecting from users pursuant to their privacy policies, and consider whether to change any dispute resolution terms in their user agreements.

Offshore Operations and Jurisdiction Concerns

Some operators may feel that their offshore location will sufficiently protect them from enforcement of U.S. laws. This is likely a dangerous assumption. If an operator regularly engages in commercial transactions with numerous users or service providers in a restricted state, a strong argument exists for a court having the necessary personal jurisdiction over the company sufficient to force it to defend a lawsuit in the state. However, some foreign operators, such as content aggregators or affiliates that merely drive traffic to third party websites, may be in a different legal position.

A New Litigious Environment

The industry should also be aware of the burgeoning plaintiffs’ law practice area that was created by these laws which allow enforcement through private lawsuits. We expect to see a number of these claims filed against non-compliant operators in the near future, particularly given the ability to recover attorneys fees against unsuccessful defendants. Many litigants were likely awaiting the SCOTUS ruling before filing these claims.

Over‑Moderation and Performer Impact

We can also expect a new wave of adult content moderation by online platforms as they grapple with the need to keep the percentage of adult content below the applicable threshold. It is likely that platforms will over-censor adult content in any close cases, to avoid having that content count in the total calculation.

Many adult performers are asking whether these laws apply to them. The simple answer is yes, some of the state AV laws are clearly broad enough to cover performers who offer adult content on their own landing page, or on third party websites, without age verification. However, we are unaware of any current efforts to enforce the laws in such circumstances. That said, performers have an incentive to ensure that their content is offered on age verified sites, where required, as a risk mitigation effort.

Looking Ahead

While the Paxton decision was a gut punch, the adult industry has overcome many headwinds in the past. Consider the wave of obscenity prosecutions that were directed first against adult bookstores and later against adult website operators, at the state and federal levels. The industry also had to adapt to the passage of Section 2257 and FOSTA/SESTA. However, the adult industry is strong and innovative. Technology like blockchain tokens and AI will likely drive developments in AV tools that will make the process less costly and more streamlined. As the U.S. Supreme Court noted over 60 years ago, “Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” The interest in human sexuality shows no signs of slowing, despite governmental efforts to limit access to sexual expression online.

About the Author

Lawrence Walters is the operator of Walters Law Group, which represents adult industry clients worldwide. Nothing in this article is intended as legal advice. You can contact Mr. Walters through the firm’s website, www.firstamendment.com, or on social media @walterslawgroup.

]]> Protecting Creators and Platforms from Nonconsensual Content https://www.firstamendment.com/removing-nonconsensual-adult-content-ncii-law/ Mon, 02 Jun 2025 18:19:28 +0000 https://www.firstamendment.com/?p=6075

removing nonconsensual content

By: Lawrence G. Walters, Esq.
Date: May 27, 2025

 

The Importance of Consent

Consent lies at the heart of adult content production and distribution. Adult industry participants, processors, banks, and hosts have a vested interest in ensuring that the recording and publication of any sexually explicit content is supported by informed consent. Industry standards for adult content production focus on obtaining and documenting voluntary consent from all participants in the production. Professional producers carefully screen performers for any signs of impairment or duress which may suggest a lack of consent to engage in sexual activity on film, or to authorize distribution of the content as agreed by the parties. The adult industry takes a strong and definite stance against the creation or publication of nonconsensual materials.

Concerns about issues of consent incentivized MasterCard to release its Updated Guidelines for adult user-generated content sites in 2021. These Guidelines impose obligations on any payment processor that accepts MasterCard payment transactions to ensure that their adult merchants require documented consent to recording, publication, and downloading (if allowed) of explicit materials by content creators. Online platforms therefore routinely mandate the collection of written consent forms signed by all performers depicted in any uploaded content. By complying with industry standards and processor obligations in both the production and distribution of adult content, the likelihood of nonconsensual intimate images (NCII) is dramatically reduced.

Developments in AI, Deepfakes, and Takedowns

Developments in technology, including artificial intelligence models, have allowed for the creation of realistic depictions of individuals engaging in sex acts that never occurred. So-called “deepfakes” are not created with the consent of the depicted individuals, even if the underlying materials were voluntarily recorded or published. Such NCII can cause reputational harm and emotional distress to the depicted individuals. Similarly, voyeuristic material depicting body parts that were not intentionally displayed to the public constitutes another category of NCII. Finally, NCII can arise in the circumstance when an individual consents to the creation of the imagery, and/or discloses it to a friend or partner, but does not consent to more widespread distribution. These variants of NCII create more difficult issues for both the individuals depicted and the platforms where the content might appear.

Importantly, an online platform may have no knowledge of any limitations on consent that an individual has imposed in connection with the creation or circulation of specific images or video. While collection of consent forms mitigates these concerns to an extent, consent to publication of some depictions may not authorize wholesale distribution of any content depicting the creator who signed the form into the indefinite future. In some instances, creators may seek to revoke prior written consent. Separately, images that are subject to voluntary consent may be manipulated or altered to depict the creator in a way that he or she did not agree. Fortunately, responsible online platforms promptly respond to abuse complaints asserting NCII concerns. The MasterCard Guidelines require that platforms publish a complaints policy guaranteeing such prompt resolutions as a condition of continued processing. A list of all abuse complaints, and their resolution, must be maintained by the platform and shared with the processor. By promptly addressing NCII complaints, adult platform operators can reduce the potential harm of NCII distribution and maintain healthy relationships with their processors.

The abuse reporting process, itself, can be subject to abuse. Consider the scenario where a performer is paid for the release of rights to record and publish adult content, but later changes his or her mind. Rapid takedown of content labeled as NCII can injure legitimate content producers both monetarily and from a reputational standpoint. Contract rights should be respected irrespective of whether the contract involves adult materials. A separate issue arises where a competitor or harasser wants to harm a creator by taking down their lawful content from online platforms. Wrongful takedowns based on false claims of NCII can wreak havoc on creators and publishing outlets.

Legislation

Many states have laws prohibiting the recording or dissemination of NCII. Congress legislated in this arena in 2022, by passing the law now codified at 15 U.S.C. § 6851. This statute allows an individual to file a civil action for damages against any person or company who transfers, publishes, distributes, or otherwise makes accessible any intimate visual depiction of a person, knowing or recklessly disregarding the fact that the person did not consent to the depiction. The consent must be affirmative, conscious, and voluntary – free from force, fraud, misrepresentation, or coercion. Manipulated images are included within the ambit of this law, so long as an individual is identifiable by face, likeness, or other distinguishing characteristics. This could include a tattoo or birthmark. Successful claimants can recover actual damages plus liquidated damages in the amount of $150,000, in addition to costs and attorneys’ fees. This law is a powerful weapon that can be used by victims of NCII to seek justice. Recognizing that commercial model releases should remain enforceable, the statute notes that its prohibitions do not apply to an intimate image that is “commercial pornographic content” unless such content was produced by force, fraud, misrepresentation, or coercion. Given the broad protection afforded by Section 230, any claims would likely be unsuccessful if asserted against online platforms in relation to user generated content. However, individuals, producers, or even pay sites that produce or publish content alleged to be nonconsensual are potentially liable.

The TAKE IT DOWN Act

On May 19, 2025, President Trump signed the TAKE IT DOWN Act which imposes criminal prohibitions on disclosure of (or threats to disclose) NCII. Offenses involving adults can result in up to 2 years in prison, while offenses involving minors carry up to 3 years. The fact that an individual consented to the creation of the underlying content, or consented to disclosure to another individual, does not establish consent to publication or distribution by a third party. Unlike the law allowing civil claims, this criminal law makes no specific exception for commercial pornography. However, violations are not triggered if the individuals depicted voluntarily exposed themselves in a public or commercial setting. Further, the law imposes a “notice and takedown” regime on covered online platforms which requires the publication of a clear and conspicuous policy detailing how reports of NCII can be submitted. If an NCII takedown notice contains the required information, such as identification of the location of the content, a physical or electronic signature, and a good faith statement that the content was published without the consent of the complainant, platforms must remove the content within 48 hours of receipt, along with all known copies of the depiction. Unlike the DMCA, on which this bill is seemingly patterned, there is no requirement that the statements in the takedown notice be sworn under the penalty of perjury, and there is no provision allowing claims against those who abuse the takedown procedure. Failure to comply with the requirements applicable to online platforms is punished as a deceptive and unfair trade practice by the Federal Trade Commission. Platforms have 1 year from enactment to implement the required procedures.

Numerous civil liberties groups have warned against the unintended consequences of this law, and the threats of censorship posed by compliance with its requirements. Given the potential civil and criminal penalties triggered by the law, the response will likely lead to severe moderation of sexually explicit content to mitigate the risks. We saw this with the passage of FOSTA/SESTA which criminalized online materials that promote or facilitate prostitution or contribute to sex trafficking. All sexually oriented content was banned on many platforms and some service providers shut down completely in response. Similar censorship efforts can be expected in light of this new law. The requirement that a platform promptly remove any identified NCII, and all known copies, could pose an insurmountable burden, particularly on those platforms which offer encrypted messaging features. Again, the likely response would be to cease offering such features which have become invaluable for private, secure online communication. The mandated 48-hour response time may be impractical for startup platforms who employ a small staff, which thereby stifles online innovation. By failing to require that all takedown notices include sworn statements, by omitting any appeal process, and by not offering any method to punish malicious actors, the required takedown procedure invites abuse by frivolous claimants or even competitors. The lack of a specific exemption for commercial pornography compounds the potential for abusive claims. More broadly, the law criminalizes a new category of speech that is deemed unprotected by the First Amendment, which the U.S. Supreme Court has rejected on several recent occasions.

Balancing Free Speech with NCII Enforcement

Restricting the recordation and publication of NCII is a laudable goal that enjoys widespread support within the adult entertainment industry. State and federal laws provide numerous options for victims of this wrongful activity to seek redress in the courts. The ability to create deepfakes, involuntarily depicting individuals in a state of undress or engaging in sexual activity, creates new risks for creators and publishers which should be carefully evaluated. However, given the potential First Amendment concerns, any new criminal legislation in this area requires a scalpel, not a sledgehammer. Imposing penalties on platforms that inadvertently host NCII or fail to remove such content within a very short timeframe, creates a chilling effect on speech resulting in censorship of sexually-oriented materials. Any legislation criminalizing the publication of NCII must make room for satire, political speech, and other forms of protected expression. An appeal provision should have been included to counter unfounded takedown requests. Laws like this must also recognize the practical limitations facing online intermediaries in identifying and removing such content. Finally, any such law should include a specific provision for punishing abusers to prevent misuse and the resulting harm to creators, publishers, and distributors. By failing to strike the necessary balance in protecting free speech and restricting NCII, lawmakers have invited censorship and abuse.

About the Author

Lawrence Walters heads up Walters Law Group and represents clients involved in all aspects of the adult entertainment industry. Nothing in this article is intended as legal advice. You can reach Mr. Walters through his website, www.firstamendment.com or on social media @walterslawgroup.

Read more:
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]]> Beyond DMCA Notices https://www.firstamendment.com/beyond-dmca-notices/ Wed, 03 Jan 2024 17:06:09 +0000 https://www.firstamendment.com/?p=5533

The Next Steps When DMCA Takedowns Fail

January 3, 2024
By: Lawrence G. Walters

Introduction on DMCA Notices

DMCA NoticesMost responsible and successful content creators recognize that their content will be leaked on a variety of pirate sites, forums, and file lockers, and have therefore implemented a strategy to protect their valuable intellectual property. Often this effort involves hiring a DMCA company to send takedown notices (“DMCA Notices”) to websites and hosts involved in the publication of infringing material. DMCA service providers can also scan the web for infringing content and follow up on ignored takedown demands. Accordingly, these services can be a valuable first step in combatting piracy.

But what happens when pirate sites or their hosts ignore DMCA Notices? After all, pirates are in the business of publishing and monetizing infringing content, not removing it. We frequently encounter sites that blatantly ignore DMCA Notices or immediately allow infringing content to be re-uploaded to a different URL after the content is taken down. Evaluation of the next steps requires an understanding of copyright / trademark law and some practical limitations inherent in the legal system. 

The Importance of Copyright Registration

Initially, to even consider taking further legal action, a U.S. copyright holder must obtain a copyright registration from the U.S. Copyright Office. The United States Supreme Court made clear in 2019 that in all but a few narrow instances, copyright holders must obtain a registration before commencing a copyright infringement lawsuit. The registration process is fairly straightforward and can be done online at copyright.gov for a filing fee averaging $65.00. However, this requirement can pose some issues for creators as it currently takes about 8 months from application for a registration to issue, and in some cases up to a few years. If an urgent registration is desired, the applicant can pay a $800 fee for expedited examination and registration of the application. In such instances, the Copyright Office will seek to process the application within five (5) working days. 

Consider the common scenario where a content creator finds mass infringement on a tube site or file locker which is publishing unregistered works. Registration of each image or video could cost thousands of dollars (even more if expedited applications are filed). Moreover, if the application was not filed before the infringement occurred, or within three (3) months of the first publication of the content, the copyright owner is limited to recovery of actual damages and must pay his or her own attorneys fees. However, if the creator obtains a registration before the infringement (or within three (3) months of first publication) the creator can recover statutory damages and attorneys fees from the infringer. Statutory damages can amount to $150,000 per infringement if the creator shows the infringing activity was willful. Since all copyright lawsuits must be filed in federal court, and given the cost of federal litigation, the right to recover attorneys fees is critical in determining whether a case is worth pursuing. In practical terms, a creator is much more likely to locate an attorney who is willing to take a copyright case on a contingency fee basis if the creator has obtained timely registrations. In such instances, the losing party will be required to pay attorneys fees and the creator will be entitled to recover statutory damages without the need to show any actual losses. In cases where the creator has not obtained timely registrations, and is limited to claiming actual damages, the recovery may be dwarfed by the attorneys fees paid to the creator’s attorney, resulting in a net loss for the creator. 

In light of the above, it is important for all creators to develop a comprehensive copyright registration strategy before any content is published. Doing so will allow the creator to have significant leverage in threatening or pursuing litigation or administrative claims against infringers. Likewise, infringers are more likely to respond to cease and desist demands sent by the creator when the demands are supported by timely registrations. Having registrations in hand is like waving a loaded gun. The infringers will understand that you have the immediate ability to pull the trigger. 

Grouping Content for Registration

Some creators are intimidated by the idea of registering all their content, in light of the potential time, costs, and attorneys fees that might be required to do so. However, there are various strategies that might be pursued to allow a creator to group content together, so each image or video is not required to be registered separately. While this approach is less costly on the front end, having fewer registrations also means recovery on fewer infringements in any enforcement action. For example, if a gallery of 100 images was registered together, theft of 50 images from that gallery would constitute 1 infringement. Whereas if each image was registered separately, the creator could claim a total of 50 infringements. 

Setting a Trap

One strategy that can be considered when DMCA Notices fail to produce the desired result, is the concept of setting a “honey pot”. If a creator’s content is routinely leaked after publication, the creator might consider registering a batch of content immediately upon release (or at a minimum within 3 months of publication), knowing that the content will be infringed. Upon receiving the necessary copyright registrations, the creator will be poised to assert an effective infringement claim seeking statutory damages and attorneys fees. Keep in mind that well over 90% of legal actions are settled before trial, and many before any formal action is filed. By collecting evidence of infringement and obtaining prior registrations, creators are in a strong position to force a settlement of their claims in this instance. Settlement can include monetary damages and a wide variety of non-monetary elements such as pro-active filtering of future content, expedited handling of takedown demands, or agreed damages for future instances of infringement. \

CASE Act Claims

Note also, not every copyright claim must be asserted in federal court. As a result of passage of the CASE Act in 2020, creators can pursue a form of “small claims” action at the U.S. Copyright Office as an alternative to federal court litigation. Damages are capped at $30,000 and defendants have the right to opt out of the procedure. However, CASE Act claims provide for a viable alternative to expensive federal court proceedings and creators do not need to hire legal counsel to pursue these actions. More information about CASE Act claims can be found in our post, here: https://www.firstamendment.com/case-act-claims/.

Watermarking Content

Another tool that can be considered to ward off infringement is trademark registration and watermarking content. When content is copied and republished without authorization, copyright infringement occurs. If the copied content contains a registered trademark describing the source of the content, trademark infringement occurs. Creators can register a trademark for the brand name that they use to sell content – which is usually their stage name. Pirates have “DMCA safe harbor” protection from copyright infringement claims based on content uploaded by third party users, assuming certain conditions are met. But no safe harbor exists for trademark infringement claims. Beefing up potential claims by watermarking content with a registered trademark can make pirates think twice about ignoring takedown demands. 

Practical Limitations 

Before gearing up to start taking down pirates with lawsuits or administrative claims, some practical limitations must be considered. First, many infringers are difficult to find or are located outside the United States. Some pirates will go to great lengths to obfuscate their identity through a web of domain privacy services, proxy host services, fake names, or shell corporations. Identifying a potential defendant that would be subject to the jurisdiction of U.S. courts or administrative actions can be a significant undertaking on its own. Generally, a defendant must be engaging in substantial business activities targeting the U.S., or a particular state, to be able to assert a claim against that defendant. This is a complicated area of the law, and many battles are fought over whether a particular court has “personal jurisdiction” over an individual or company. Due diligence must be performed in advance to determine whether a defendant can be required to participate in a U.S. legal proceeding. 

Another important consideration in evaluating any potential legal action is the financial condition of the defendant. A judgment awarding $1 million in damages and attorneys fees is not worth the paper it is printed on if the creator cannot collect the money. Some infringers are well aware of this consideration and hide their ill-gotten gains in offshore accounts, crypto, or precious metals to make it difficult for claimants to collect any judgment. Again, significant efforts must be expended to evaluate whether a defendant has the ability to pay before a creator expends time and effort pursuing formal legal action for copyright or trademark infringement. 

Conclusion

DMCA Notices play an important role in policing creator content for infringement. Significant amounts of infringing content are taken down in response to DMCA Notices on a daily basis. However, as with all legal tools, there are limits to the effectiveness of DMCA Notices. Creators who are serious about protecting their intellectual property should consider the next steps that can be taken when pirates ignore takedown demands. Copyright and trademark laws provide powerful tools that can be used in the right circumstances. Evaluating all the options is a prudent effort for creators on their path to success. 

Lawrence Walters heads up Walters Law Group and has represented adult content creators, producers, and publishers for over 30 years. He can be reached through the firm’s website, firstamendment.com, or on social media @walterslawgroup. 

]]> How Civil Sex Trafficking Claims Impact the Adult Entertainment Industry https://www.firstamendment.com/how-civil-sex-trafficking-claims-impact-the-adult-entertainment-industry/ Thu, 18 May 2023 01:41:44 +0000 https://www.firstamendment.com/?p=5461

By: Lawrence G. Walters May 17, 2023

Introduction: Civil Claims and Their Impact on the Adult Entertainment Industry

Numerous online platforms including Kik, Twitter, Reddit, Craigslist, and MindGeek have been sued by civil claimants seeking to hold them responsible for sex trafficking activities by their users. These lawsuits have significant consequences for adult industry website operators, billing processors, and performers. The legal standard to which online platforms are held in these instances may ultimately be decided by the U.S. Supreme Court. This article will explore the types of allegations made against platform operators and the changes we are seeing in the adult industry as a result.

Understanding the Role of Online Platforms in Sex Trafficking Lawsuits

Why would a large online platform ever be involved with sex trafficking? Naturally, any association with such nefarious activities is bad for business, terrible for public relations, and inconsistent with basic human dignity. In reality, however, sex trafficking statutes are intentionally broad, and seek to punish anyone who benefits from trafficking or those who participate in a sex trafficking venture – regardless of the level of involvement. Online platforms have been named as defendants in civil sex trafficking claims based on their age verification procedures, content moderation policies, takedown responses, and general business practices. These lawsuits have been filed even without any active involvement by the platform in the alleged sex trafficking activities, or any actual knowledge of the activities. Understanding how this can happen starts with a review of the underlying criminal laws.

Exploring the Legal Background: Key Factors and Statutes Involved in Sex Trafficking Cases

As with many criminal offenses, the key factor in determining whether someone is culpable as part of a criminal venture turns on whether the defendant had “knowledge” of the illegal activities. The federal prohibition on sex trafficking, 18 U.S.C. § 1591, prohibits anyone from “knowingly” recruiting, enticing, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or soliciting a person through force, fraud, or coercion, to engage in a commercial sex act. Further, the statute punishes anyone who benefits financially, or receives anything of value, from participating in a venture which has engaged in the activity described above. Id. The defendant must have acted knowingly (or in reckless disregard) of the fact that force, fraud, or coercion was used to procure a commercial sex act from the victim. Bottom line: anybody remotely connected with sex trafficking can be brought into a sex trafficking case. This is particularly true given the existence of accomplice liability laws that prohibit conspiracy, or aiding and abetting, any substantive offense. Aiding and abetting only requires substantially assisting another in violating the law, while conspiracy simply requires an agreement to violate the law (plus an overt act in furtherance) without the need to prove any completed crime.

Expansion of Sex Trafficking Cases: From Physical Spaces to Online Platforms

Sex trafficking cases have been brought against businesses that are typically far removed from any such illegal activities such as hotels or truck stops. Until FOSTA/SESTA (“FOSTA”) was passed in April 2018, online platforms were protected from civil sex trafficking claims by Section 230 immunity. However, FOSTA changed all that. Now, online platforms can be liable in civil courts “if the conduct underlying the claim constitutes a violation of section 1591” [the criminal sex trafficking statute]. This awkward wording, allowing for civil liability only if the claim constitutes a criminal violation, has led to conflicting interpretations in the courts as to when and how online platforms can be successfully sued for sex trafficking violations.

Shifting from Actual to Constructive Knowledge: The New Challenge for Online Platforms

In civil courts, defendants are often held responsible for their negligent actions even if they did not intentionally commit harm. Failing to clean up a spill in a retail store which results in a slip and fall by a customer is an example of such liability. The store owner did not intend for anyone to be hurt, but can be held financially liable to the injured party, nonetheless. So, when it comes to sex trafficking violations, civil claims have been asserted when a defendant “should have known” of the illegal activity, even in the absence of actual knowledge. This illustrates the legal principle of “constructive knowledge”. Defendants are deemed to know the things they should have known with reasonable inquiry. They can also be found liable if they turn a blind eye to unlawful activity. However, when it comes to online platforms that disseminate speech, there are legitimate First Amendment issues implicated by holding a platform operator responsible for things it arguably should have known, but did not, in fact, know. Imposing such a broad standard of liability on platforms can result in a “chilling effect” on speech which causes the platform to moderate or censor broad swaths of user speech, in an effort to avoid potentially being held liable for actions that a civil claimant thinks the platform should have known.

Civil Claims and FOSTA: The Fine Balance between Knowledge Standards

Potentially in recognition of this concern, FOSTA requires that civil claimants demonstrate a criminal violation of sex trafficking laws before liability will attach to an online platform. However, the courts have been divided on whether the actual knowledge standard or the constructive knowledge standard prevails when suing a platform for sex trafficking violations.

Allegations Against Online Platforms: From Age Verification to Content Moderation

Plaintiffs have filed lawsuits against numerous online platforms based on allegations that they failed to promptly take down content in response to abuse notices, failed to impose sufficient age verification procedures on content uploaders, failed to aggressively monitor content for illegal activities, or failed to pay sufficient attention to allegations of unlawful conduct by their users. A fact potentially missing in many of these cases is any allegation of actual criminal conduct by the platform operator, itself. It would be highly unlikely that a large platform operator would knowingly participate in a sex trafficking venture through its own actions. Therefore, civil claimants have sought to rely on the concept of “constructive knowledge” in the attempt to attach liability for unlawful conduct of third party users.

“Constructive Knowledge”: A Pandora’s Box for Online Platforms

Any effort to determine whether a platform “should have known” that its users were involved in sex trafficking opens a Pandora’s Box of numerous potential indicators of such knowledge. Did the platform miss one email, out of many thousands of routine support messages, demanding takedown of alleged recordings of forced commercial sex acts? Did the platform fail to implement robust age verification procedures, using the latest technology, before allowing a creator to upload content? A wide variety of operational decisions could be brought into question when evaluating a constructive knowledge standard. Attempting to comply with this standard can result in a never-ending undertaking designed to enhance legal compliance efforts, moderate content, and verify users. The inclusion of online service providers as defendants in these cases, such as hosts and billing companies, can exacerbate the compliance burdens as platforms try to comply with rules and guidelines imposed by their service providers in order to stay in business. The impact is ultimately borne by adult content creators who are faced with increasing barriers to their ability to monetize content.

A Ray of Hope: Ninth Circuit’s Decision in Does v. Reddit

However, a recent decision from the Ninth Circuit Court of Appeals offers some logic to the legal analysis, and a ray of hope to both platforms and content creators. On October 24, 2022, the Ninth Circuit decided Does v. Reddit, which addressed, head on, the level of knowledge required to assert a valid sex trafficking claim against an online platform. In Reddit, the platform was sued, on a class action basis, for allegedly allowing explicit images of minors to be posted on various “sub-reddit” accounts, and failing to prevent the reposting of the materials after removal. Further, the plaintiffs in that case alleged that Reddit permitted the labeling of accounts with terms that suggested underage content such as:  /r/BestofYoungNSFW, r/teensdirtie, /r/TeenBeauties, and /r/YoungGirlsGoneWildd. Finally, they claimed that Reddit received advertising revenues from these channels while failing to track offending IP addresses and “delayed” implementation of potentially available content moderation tools such as PhotoDNA.

Implications for the Adult Industry: Precautions and Moving Forward

While the Ninth Circuit’s decision in Does v. Reddit is not binding on other federal courts, it is highly influential, and has the potential to provide the much-needed clarification to online platforms, service providers, and content creators alike. However, there are still several courts that have yet to rule on this issue. The final word will likely come from the U.S. Supreme Court in the next few years. In the meantime, platforms should ensure they have policies in place to promptly remove any content associated with unlawful activities, report such activities to appropriate law enforcement agencies, and cooperate with such agencies when requested.

This ever-evolving landscape underlines the need for adult industry operators to remain vigilant in their compliance efforts and to work with legal counsel familiar with the latest developments in this challenging area of the law. The balance between freedom of speech, online content moderation, and the prevention of illegal activities is a delicate one, and platforms must tread carefully to avoid legal pitfalls while providing a safe and secure environment for their users.

Conclusion

The recent rise in civil sex trafficking claims against online platforms presents both challenges and opportunities for the adult entertainment industry. While the lawsuits have led to increased scrutiny and compliance costs, they have also fostered a dialogue around necessary reform in platform operation policies, age verification procedures, and content moderation. The Ninth Circuit’s ruling in Does v. Reddit, coupled with potential future rulings from other federal courts or the U.S. Supreme Court, will continue to shape the way the adult industry operates and responds to these pressing issues. Ultimately, the industry’s collective response to these challenges can lead to a safer and more responsible internet space, providing protection to vulnerable individuals while maintaining the freedom of expression that is at the heart of the internet’s appeal.

]]> Unraveling Adult Entertainment Law: Lifting the Curtain on Legal Intricacies and the Vital Role of Legal Practitioners https://www.firstamendment.com/unraveling-adult-entertainment-law-lifting-the-curtain-on-legal-intricacies-and-the-vital-role-of-legal-practitioners/ Tue, 16 May 2023 16:26:16 +0000 https://www.firstamendment.com/?p=5442

Unraveling Adult Entertainment LawUnraveling Adult Entertainment Law: The adult entertainment industry has experienced substantial growth, turning into a thriving multibillion-dollar economic segment. Yet, with this prosperity comes an intricate labyrinth of legal issues inherent to the industry. Hence, it becomes paramount for individuals and businesses involved in adult entertainment to appreciate the nuances of adult entertainment law and the indispensable role of attorneys in successfully navigating this complex landscape.

Understanding Legalities in Adult Entertainment

Producing and distributing adult content is a highly regulated arena. A comprehensive understanding of adult entertainment legislation is pivotal to reducing risks. Addressing these complexities illuminates the diverse challenges confronting the sector.

Obscenity law, the legal domain overseeing adult content control, employs a three-pronged test to judge if a work is obscene. A deep understanding of obscenity laws is crucial for those creating or distributing adult content.

Free expression safeguards, grounded in the First Amendment, apply to sexually explicit speech just as they do to other types of speech. Yet, content portraying minors or promoted as such is illegal. Therefore, it’s critical to find a balance between adults’ rights to view and produce adult content and the necessity to protect minors.

Contract law governs business deals within the adult entertainment industry. These contracts demand meticulous drafting and examination to protect parties’ interests.

Employment law addresses worker and employer protections, covering diverse issues such as non-discrimination, equal pay, and safe working environments.

Lastly, intellectual property law concentrates on the industry’s intellectual assets, such as a performer’s name, brand, or performance. Any infringement can lead to severe repercussions.

The Critical Function of Lawyers in Unraveling Adult Entertainment Law

Attorneys perform a critical function in guiding individuals and businesses through the adult entertainment industry’s intricate legal landscape, impacting several areas:

  • Ensuring Compliance: Attorneys make sure their clients adhere to all applicable laws at the federal, state, and municipal levels.
  • Business Operations: Lawyers assist in establishing the necessary licenses, policies, and procedures for the legal and efficient operation of an adult entertainment business.
  • Contract Negotiations: Skilled attorneys negotiate and draft contracts to protect rights and clearly define responsibilities.
  • Legal Defense: Lawyers represent clients in court for a variety of legal disputes, from intellectual property and contracts to personal injury.
  • Criminal Defense: Legal representation is critical when accused of crimes related to obscenity, underage content, non-consensual publication, and other potential statutory violations.
Insights from Case Studies

Several high-profile lawsuits in the adult entertainment industry have had significant legal implications. Cases like Ashcroft v. Free Speech Coalition and United States v. Extreme Associates underline the importance of legal guidance in the adult entertainment industry.

Final Thoughts: The Imperative of Knowing Adult Entertainment Law

Unraveling Adult Entertainment LawIn sum, the legal landscape of the adult entertainment sector is multifaceted, necessitating specific knowledge and skills. Lawyers’ counsel and representation are essential in this environment, encompassing a wide array of issues from licensing and regulation to contract drafting and disputes.

For anyone involved in the adult entertainment industry, understanding the various aspects of adult entertainment law and the role of attorneys in this field is indispensable. As the industry’s legal issues become increasingly complex and unique, businesses and individuals can not only survive, but thrive, with a firm understanding of the law and competent legal advice.

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