Note: I wrote this for photography forums. I do portrait photography, and now I want to do nude portraits. Can anyone here help me?
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Because 2257 applies to images that involve a "lascivious exhibition of the genitals or pubic area of a person," (https://www.justice.gov …inal-sexual-depiction.pdf) and whether the display is lascivious is apparently subjective (e.g. Miller test), it seems that nude portraits are almost always at risk of being subject to 2257's regulations.
Note that 'lascivious' isn't defined here: https://www.law.cornell.edu/uscode/text/18/2256
And if the Dost test is used, most of us photographers immediately violate two points -- and only three of six are required. It would be very easy to accuse our work of meeting one more point. https://www.eff.org/issues/bloggers/legal/adult
The record keeping requirements are incredibly strict. The producer has to affix a statement to every production (web page, print, book, etc.) and the statement has to include information on where to find the records, *and* a title for each depiction: https://www.law.cornell.edu/cfr/text/28/75.6
And there are quite a few other rules involved, such us segregation of records: https://www.law.cornell.edu/cfr/text/28/part-75
The rules even go so far as to regulate the font size used for the display of the statement and cross-indexing: https://www.federalregister.gov …lly-explicit-performances
Your record has to include a copy of the model's ID, *all* names that model has ever used (including aliases, stage names, etc.), and there are a number of other rules: https://www.justice.gov …inal-sexual-depiction.pdf
Considering that you have to keep your records accessible to inspection almost on demand, it seems wisest to hire a custodian of records. And you have to keep them accessible for at least seven years, plus(?) five years beyond the date that you close your business. I don't know how much it costs to do that, but I don't assume it's cheap... And if you don't hire a custodian of records and keep them at your place of business, what happens when you move? Then your 2257 compliance statements that tell the Attorney General where to find your records is no good. Are you in violation then? How many of us knows for certain that we won't change our address for at least five years?
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All that to ask: Is there a way for me to do nude portraits without risking five years imprisonment via violation of 2257, apart from keeping 2257 records which seems incredibly burdensome and moderately expensive to do?
Or is there a way to make 2257 compliance not so burdensome?
I don't want to shoot porn, but it would be subjective as to whether my images involved a 'lascivious' display and therefore the risk seems extremely high even if doing nude art. Whether I'd be convicted would depend not on an objective or pre-determinable evaluation of the content, but rather would depend on how lucky I was in regard to the standards of the person(s) that evaluate my work.
...
Because 2257 applies to images that involve a "lascivious exhibition of the genitals or pubic area of a person," (https://www.justice.gov …inal-sexual-depiction.pdf) and whether the display is lascivious is apparently subjective (e.g. Miller test), it seems that nude portraits are almost always at risk of being subject to 2257's regulations.
Note that 'lascivious' isn't defined here: https://www.law.cornell.edu/uscode/text/18/2256
And if the Dost test is used, most of us photographers immediately violate two points -- and only three of six are required. It would be very easy to accuse our work of meeting one more point. https://www.eff.org/issues/bloggers/legal/adult
The record keeping requirements are incredibly strict. The producer has to affix a statement to every production (web page, print, book, etc.) and the statement has to include information on where to find the records, *and* a title for each depiction: https://www.law.cornell.edu/cfr/text/28/75.6
And there are quite a few other rules involved, such us segregation of records: https://www.law.cornell.edu/cfr/text/28/part-75
The rules even go so far as to regulate the font size used for the display of the statement and cross-indexing: https://www.federalregister.gov …lly-explicit-performances
Your record has to include a copy of the model's ID, *all* names that model has ever used (including aliases, stage names, etc.), and there are a number of other rules: https://www.justice.gov …inal-sexual-depiction.pdf
Considering that you have to keep your records accessible to inspection almost on demand, it seems wisest to hire a custodian of records. And you have to keep them accessible for at least seven years, plus(?) five years beyond the date that you close your business. I don't know how much it costs to do that, but I don't assume it's cheap... And if you don't hire a custodian of records and keep them at your place of business, what happens when you move? Then your 2257 compliance statements that tell the Attorney General where to find your records is no good. Are you in violation then? How many of us knows for certain that we won't change our address for at least five years?
-----
All that to ask: Is there a way for me to do nude portraits without risking five years imprisonment via violation of 2257, apart from keeping 2257 records which seems incredibly burdensome and moderately expensive to do?
Or is there a way to make 2257 compliance not so burdensome?
I don't want to shoot porn, but it would be subjective as to whether my images involved a 'lascivious' display and therefore the risk seems extremely high even if doing nude art. Whether I'd be convicted would depend not on an objective or pre-determinable evaluation of the content, but rather would depend on how lucky I was in regard to the standards of the person(s) that evaluate my work.
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