Adult Website Law - Tips for Safely Operating an Erotic-Themed Website

This legal guide is intended to provide an overview of the federal and constitutional issues impacting operation of an adult website. It is intended for the newbie or those considering the business. Given the wide-ranging legal issues facing this industry, legal representation is recommended.

1. Introduction

   The author has represented adult webmasters for over 25 years, and has defended numerous civil and criminal cases filed against adult website operators. Below are some of the legal and constitutional concerns facing adult websites. This guide is by no means intended as an exhaustive list, but covers the most common legal issues encountered by adult webmasters. A wide variety of federal laws govern the adult website industry. Occasionally, state law can impact these operations as well. The adult webmaster should become an expert on legal compliance issues governing the production of erotic content, and the publication of such material.

2. Age Verification, Model Releases, and Records Keeping Obligations

   Adult webmasters must take steps to ensure that performers and website users are over the age of 18 in the US. Federal law imposes numerous records keeping obligations. Title 18 U.S.C. s. 2257 (and associated federal regulations) require that performers in sexually explicit media provide government-issued ID's, and that all producers (including secondary producers such as webmasters) maintain records associated with the performer. We recommend that our clients use our firm's mobile app; Quick2257, to compile mandatory performer age records. Model releases must be obtained and kept separately from the Section 2257 age records. These releases should be drafted by an experienced adult website lawyer, and cover issues such as right of publicity, STD's, sexual harassment, condom usage, and character/persona rights. The publication of sexually explicit media on a website generally requires a Section 2257 disclosure, which identifies the location of the mandatory records. Some user-generated content or profiles are exempt from these obligations. Tube sites and adult dating sites can position themselves to take advantage of Section 2257 exemptions, if operated properly. Notably, a federal appeals court has ruled that certain provisions of Section 2257 violate the First and Fourth Amendments. While the litigation remains pending, adult content producers and publishers are encouraged to continue compliance with these legal obligations.

3. Intellectual Property Issues

   A variety of intellectual property issues face adult website operators including trademarks, copyrights, publicity rights, and DMCA safe harbor. The adult website industry has also been targeted by numerous 'patent trolls' based on certain technology utilized to display the erotic media. Website operators should become familiar with the copyright registration process when producing adult imagery. Trademark concerns should be evaluated before selecting a brand name or website domain. Once a brand is selected, trademark registration should be strongly considered. Some brands cannot be registered if they are too generic or descriptive of the services. Infringement and piracy is rampant on the internet, particularly in the adult industry. Adult website operators commonly develop an intellectual property rights enforcement strategy which includes policing of infringement, transmission of cease and desist letters, DMCA takedown notices, UDRP domain name arbitration, and litigation when necessary. Those online service providers who permit uploading of content by independent third party users must familiarize themselves with Section 230 immunity which protects online service providers from liability for some third party content. Also important is the Digital Millennium Copyright Act ("DMCA"), which provides 'safe harbor' from copyright infringement claims. However, the DMCA imposes stringent requirements in order to assert safe harbor status. The website operator must: 1) designate an agent for receipt of infringement notices by filing a notice with the Copyright Office; 2) post a legally-compliant Notice & Takedown Policy, describing how to submit a DMCA notice or counter-notification; 3) fairly implement a repeat copyright infringer policy; and 4) notify its subscribers of the Repeat Infringer Policy. Intellectual property is an adult website's most valuable asset. IP rights should be identified, registered, and enforced.

4. Obscenity, Prostitution, Indecency, and Underage Materials

   This section will evaluate core content-related concerns with the production and distribution of sexually-explicit material. Pornography is legal, and constitutionally protected under the First Amendment. Obscenity is illegal, and publication of obscene material can result in serious criminal penalties. The difference between the two is governed by the Miller Test, which focuses on whether the content is patently offensive, appeals to the prurient interest in sex, and whether it lacks serious literary, artistic, scientific, or political value. Even pure written material can be deemed obscene, under current case law. Adult website operators must be intimately familiar with the Miller Test, and avoid publication of obscene materials. The production of erotic material is also likely protected by the First Amendment, although only 2 states have court rulings which affirm the legality of adult content production; California and New Hampshire. In other states, the potential applicability of prostitution laws to the act of paying individuals to engage in sexual activity is unsettled. Indecent materials are legal for adults to view, but can be illegal if made available to children. Online age verification is a difficult issue, since existing technology limits identification of the individual behind the computer keyboard or smart phone. The UK has adopted an age verification law which mandates use of an age verification system for UK users. While the First Amendment has prevented the US from enacting a constitutional online age verification law, good faith efforts to prevent minors from accessing explicit material is recommended. Bio-metrics and other technology will eventually make it easier to identify the age of website users. A more serious issue arises with the age of persons depicted in sexually explicit material. Child pornography offenses are some of the most serious crimes in the nation, at both the state and federal levels. Adult website operators must make every effort to ensure that underage materials are not published on their sites. Apparent underage material posted by third parties must be reported to the CyberTip Hotline, operated by NCMEC, pursuant to 18 U.S.C. s. 2258A. Even if all performers are over 18, webmasters should never promote their content as including any child pornography, 'lolita' or 'underage' material. Federal 'pandering' laws have been used to prosecute online advertisers who promote erotic material as depicting underage individuals even if all models are over 18. However, erotic content which involves performers who happen to look young, but are over 18, is not illegal under Supreme Court precedent.

5. Website Contracts, Policies, Terms, and Conditions

   The operation of an adult website will require the careful drafting of numerous online agreements, contracts, policies, terms and conditions. The following is a partial list of the agreements typically associated with adult website operation: 1) User Terms & Conditions; 2) Advertiser Agreement; 3) Privacy Policy; 4) Affiliate Agreement; 5) Section 2257 Disclosure Statement; 6) Anti-Spam Policy; 7) Human Trafficking / Abuse Policy; 8) DMCA Notice & Takedown Policy; 9) Repeat Infringer Policy; 10) Model Agreement; 11) Website Development Agreement; 12) Copyright/Trademark Assignments 13) Photographer Agreement; 14) Section 2257 Data Acquisition Form. Correct implementation and utilization of these important agreements and policies is essential to mitigate legal risks.

6. Conclusions & Recommendations

   Adult website operation can be profitable, but comes with inherent legal risks due to the controversial nature of the content published on the site. The adult entertainment industry is a highly regulated field, and requires careful attention to legal detail. An experienced attorney, familiar with the First Amendment, Adult Entertainment and Internet Law will be an essential part of the team. Operational risks can be substantially reduced by addressing relevant legal issues prior to launch.