The new DOJ regulations implement the expanded age-verification requirements enacted in the Adam Walsh Act.  Now primary and secondary producers of depictions of “simulated sexually explicit conduct” and “lascivious exhibition” must also comply with age-verification record keeping requirements. The regulations define a primary producer as the individual who records the depiction of the sexually explicit conduct, whether it’s by videotape, photography, or a digitally manipulated image.  Primary producers also include anyone who digitizes an image of sexually explicit conduct.  A secondary producer includes anyone who “produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, videotape, or digitally or computer-manipulated image, picture, or other matter” that is intended for commercial distribution.  This definition also encompasses anyone who includes sexually explicit depictions on a computer site or service or otherwise manages the sexually explicit content on a computer site or service.  The breadth of the initial definition of secondary producer raised protest from the media industry and it was later amended to exclude those who merely distribute sexually explicit conduct, without altering or editing the content. Simulated sexually explicit conduct includes conduct that would cause a reasonable viewer to believe that the performers were actually engaged in sexually explicit conduct.  However, the depiction must amount to more than the mere suggestion of sexually explicit conduct.  While lascivious exhibition is not defined within the regulations, the DOJ website describes a few components of a lascivious depiction: “(1) the focal point is on the subject’s genitalia or pubic area, (2) the setting of the visual depiction is sexually suggestive . . . (3) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or (4) the visual depiction is intended to elicit a sexual response in the viewer.”  Under this description, producers who show only fleeting nudity might still be subject to the age-verification recording procedures. 

The new regulations require the primary producer to examine a government issued photo ID of every performer before the production of the sexually explicit depiction.  The producer must then make a record of the performer’s name, aliases, date of birth, the date of the production of the sexually explicit image, and make a photocopy of the identification.  These records must be maintained in accordance with specific requirements and the visual depiction must be labeled with the location of the record.  A secondary producer of sexually explicit content must obtain all age-verification records from the primary producer, but does not have to independently verify the age of the performers.

While these requirements might have proven burdensome for mainstream media, the DOJ regulations contain an important safe harbor which offsets some of this burden:  Specifically, the record keeping provisions do not apply to a producer of simulated sexual conduct or lascivious images if the images are intended for commercial distribution as part of a commercial enterprise and they meet one of two requirements: (1) if the visual depiction is not “produced, marketed, or made available in circumstances such that an ordinary person would conclude that the matter contains a visual depiction that is child pornography” or (2) the depiction is subject to regulation by the FCC in its regulation of the broadcast of obscene, indecent, or profane programming. 

Producers seeking eligibility for the exemption must send a letter of certification to the Attorney General. The certification letter must state the statutory basis for eligibility, and, in the required language, state that the producer, in the regular course of business, collects and maintains identifying information for all performers. The letter must be signed by an executive officer of the entity or, if the entity does not have executive officers, by a senior manager who oversees the entity’s activities.  There are specific requirements for foreign entities seeking certification, or entities which have used foreign performers. 

The deadline for submitting the certification is June 16, 2009.  For all production that begins after June 16, 2009, the certification is due within 60 days of the start of the production.   After the initial certification, there is no need to recertify unless there are any material changes to the information provided in the certification.  In that case, a subsequent certification must be filed within 60 days of the material change. 

Our New Media, Entertainment and Technology practice group has been closely monitoring these regulations and would be happy to answer any questions regarding the impact of the same on your content production, broadcast and distribution initiatives or assist you in filing your own certification letters. 

We would like to thank Kate O’Donnell, a summer associate with the Firm, for her assistance in the preparation of this alert.

Advances over the last decade in the media, entertainment and technology industries have been unparalleled. The new media landscape is dynamically shifting in real time and all businesses must anticipate and react to innovations in technology in order to seize new opportunities and develop unique business models.

Hughes Hubbard and Reed’s New Media, Entertainment and Technology group recognizes the pace at which these advancements are affecting the day-to-day operations of our clients. We specialize in helping clients exploit such developments to stay ahead of the curve by understanding the way technology influences business. It is not merely the convergence of the media, entertainment and technology industries, but the impact of such convergence on the global consumer, which drives the marketplace forward. We combine the resources and experience of a traditional law firm with an understanding and passion for today’s cutting-edge technologies to assist our clients in navigating the new realities and challenges arising from this shifting landscape.

Digital Media and Internet

• Digital audio-visual content licensing, distribution and syndication initiatives on all new media platforms including wireless, broadband, satellite radio and IPTV
• Online social networking services, virtual reality communities, blogging, massively multiplayer online games (MMOGs)
• Mergers & acquisitions, strategic alliances, online sponsorships/promotional collaborations and joint ventures
• Embeddable media player development, deployment and syndication
• Electronic publishing and distribution
• Integrated marketing, contextual advertising and brand management
• Viral marketing and Internet based “word of mouth” campaigns
• Ad serving, syndication, publication, targeting and tracking
• User-generated content ingestion, distribution, syndication and liability-related issues
• Digital content screening, moderation and filtering
• Online gaming, sweepstakes, contests and promotion compliance
• Digital Millennium Copyright Act – safe harbors and anti-circumvention issues
• Adoption and content of website Terms of Use agreements

Entertainment

• Development and production matters for motion picture and television productions, including writer, producer and director arrangements, guild issues, special effects agreements, location agreements, and other production related matters and documentation
• Domestic and international motion picture distribution in all media, including output deals and ancillary exploitation
• Cable and television broadcast, syndication and other distribution
• Motion picture and television finance, including single- and multi-project finance and all forms of debt, equity and mezzanine financing
• Strategic alliances and motion picture and television co-production and co-financing arrangements
• Major record label sound recording, publishing and associated rights clearances
• Independent music recording, publishing and licensing
• Video game development, publishing ,distribution and licensing for all platforms, including console, handheld ,wireless and online games
• Professional sports league television licensing and retransmission
• Professional athlete employment contracts and talent agreements, including spokesperson, appearance and sponsorship agreements
• Literary and other underlying rights acquisition and licensing
• Rights clearance for motion pictures, television productions and video games
• Product, character and technology merchandising and licensing
• Television format licensing
• Overall and housekeeping deals with talent elements and production companies
• Motion picture and television library acquisitions and dispositions
• Network, cable system and satellite affiliation and carriage agreements
• Product placement and commercial tie-ins
• Motion picture and television marketing agreements and arrangements
• Registration and licensing of patents, trademarks and copyrights
• Litigation concerning the interpretation of recording, film and distribution contracts
• Theme park, gaming and hotel operation

Technology and Information Security

• Privacy, data and information security compliance
• Information technology, business process, call center and manufacturing outsourcing transactions
• Website development, hosting and colocation arrangements
• Electronic commerce, publishing and distribution
• Technology and data export compliance
• Record retention and disaster recovery/contingency planning compliance
• Wireless device and network applications
• Software/hardware and intellectual property procurement, development, licensing and distribution
• Micropayment, contactless payment, smart cards and other alternative electronic payment technology implementations
• Technology transfers and acquisitions
• Technology service and maintenance agreements
• Domain name disputes

New Media, Entertainment and Technology Attorneys

• Dan Schnapp
• Rita Haeusler
• Wayne Josel
• Peter M. Langenberg
• Lindsay Orosz
• Matthew Syrkin
• Other Attorneys