Section 2257: Statement Makes an Appearance and Other Matters

Abigail Takes Charge 32

Anyone interested in how Section 2257 Compliance Notices appear on Model Mayhem may see one in this image by Brandon McAlister. This particular example is overly wordy and overly informative, but most importantly is unnecessary, since the upload date precedes the effective date of 2257A, which is the only portion of the 2257 regime that applies to this (particularly explicit, but otherwise non-sexual) photo. This photographer has placed a notice on many photographs that contain nudity or erotic suggestiveness, but he’s not consistent. In all cases, IMO, the notices are not necessary.

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I walked the lake yesterday pondering a particularly nasty aspect of 2257: uncertainty. Several provisions in the statute (and its regs) raise this issue — i.e., that a photographer cannot discern from the statute or regs whether his photography falls under the “normal” provisions of 2257 (i.e., “actual” sexual conduct) or under the new “simulated” provisions of 2257A. That’s not my subject here, however. For photographers other than those discussed below, the obligation to create and maintain records pertains regardless whether the conduct depicted is “actual” or “simulated.”

I am concerned about uncertainty for those photographers like me who have mailed in their 28 CFR §75.9 “Safe Harbor” Certification. (Or those who will — remember, folks, the deadline for most of you is June 16.) As you may recall, the “Safe Harbor” Certification (“SHC”) came about after lobbying by the entertainment industry and “men’s magazines” to be exempt from having to post §2257 notices on movies or magazines containing simulated sexual conduct or lascivious exhibition of the genitals or pubic area. Congress could not appear to craft an exemption specifically for one or another industry, however, so the SHC provisions are worded so they may apply to any number of persons or organizations, including us fine art photographers who sell prints of our work as a business.

The problems arise when a photographer files a SHC and either:

  1. Receives no response from the Department of Justice; or

  2. It is rejected by DOJ, but in the meantime he has photographed “SHC content”; or
  3. The Certification is deemed effective and the photographer photographs content he considers to be “simulated” but the Feds consider to be “actual.”

As I discuss at greater length in my book and its updates, we are nowhere told how the DOJ will respond to SHC filings. Also as mentioned there, we may argue that a SHC is effective as of its mailing, and that since DOJ nowhere sets out standards for acceptance, rejection, or a methodology for notifying those of us who submit, the government’s sole option for a SHC that is valid on its face would be to charge the submitter with falsifying the facts set forth in the SHC. Likewise, we may argue that until such time as DOJ responds to a SHC, the submitter has a right to rely on the safe harbor granted as to his own work. It is an argument, however, and only that, and hence the uncertainty under #1 above.

Point #2 should be easily dealt with: if DOJ does reject a SHC, then create the necessary records and affix the necessary notices. What about copies of the images covered by the SHC that have already been published, however? What about the uncertainty third-party secondary producers may face not knowing until after DOJ responds? Did the submitter break the law by photographing content subject to §2257A but not creating the records, if his SHC is later rejected? All this is uncertain, and for some people may only be resolved in court.

The greatest uncertainty comes with number 3, however. Assuming you have filed a SHC, here are the stakes: if you take a photograph after March 18 that you consider to be “simulated” conduct but the feds consider to be “actual,” the difference is between getting a pass and getting up to five years in prison. Again, in the book I discuss this problem at greater length, focusing especially on matters relating to “sadistic or masochistic abuse” and “masturbation,” in both of which for still photography it is difficult if not impossible to differentiate between actual and simulated. Consider the following photograph, for example,


taken by Circle23 and Allen Falkner (in the model’s portfolio, apparently). I’d even argue that this photo is actual sadistic abuse subject to §2257 as of its date (2006). Let’s assume that the photograph was taken after March 18, the photographer has filed a SHC, and he argues that it is “simulated” SM. The feds say, no, it is “actual” SM. Who is right? Short of a criminal trial we have no way of knowing.

Things are unlikely to proceed that far. More likely:

DOJ Representative: This photograph is subject to §2257, and you must create records for it and affix a label.

You: No, it’s simulated and I have filed a “Safe Harbor” Certification, so for this photo I’m exempt.

DOJ: It looks real to me, and if you want we can prosecute you and let a jury decide.

You: Nooooo. I’ll create the records.

But you won’t know that this is the case unless (1) the government finds the photo, (2) this kind of confrontation ensues, and (3) you decide to knuckle under.

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Patricia and I saw The Soloist last night. A powerful and moving film, very relevant in today’s society, with frequent excerpts from Beethoven symphonies (and a brief rendition of one of Bach’s cello sonatas). Robert Downey Jr. at his best, and a stellar performance by Jamie Foxx, arguably his best since he channeled Ray Charles. Highly recommended, if you can still find it in a local theater. Otherwise, note it for Netflix.

On a related subject, a review of A Homosexual’s Guide to Capitalism & Socialism with a Key to the Scriptures, may be read here, and a brief video interview with Kushner talking about doing a play in Minneapolis here.

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Although not as much as friend Dave, I miss Abigail. Hope for a Happy Hour with her sometime soon.

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