Do You Need a Lawyer?
First of all, I am not a lawyer and there is no legal advice here, so the obligatory disclaimer must be made: "All statements made in this article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters."
In fact, the whole point of this article is to encourage webmasters to pay more attention to legal matters and to realize they should be consulting an attorney more often. Do you need a lawyer? Yes, you do.
You Need a Lawyer
"It's human nature to want things for free, but when you're in our business, not wanting to spend the money on good, solid legal advice can put you in more hot water than your future, your bank balance, and your reputation can stand." [Dino 2004] Here's an example of just how much trouble you can get into without even trying. Some time ago, Judith Silver Esq., a computer, Internet, intellectual property, and free speech attorney, published an article running down "The ABC's of Website Law." Under "E" we have "Exporting." Are you an exporter? Probably:
If persons from other countries use your site, then you are exporting. If you sell to such persons, you are exporting the item you sell and entering into contracts with persons of other countries. If you use encryption on the site, then you are exporting technology regulated by the Department of Commerce and Defense. Various government departments regulate the countries with which US companies may do business and when a company needs an export license to transmit items, technology or information abroad. Doing business with certain countries, such as Iraq, Iran, Cuba, North Korea, Syria, Yugoslavia and others, is severely restricted. Depending on the information on your site, what kind of business you do, the technology and information involved, your site may be subject to these regulations and you should consult with your attorney about these business decisions. [Silver 2001]
That's a bit more complicated and serious than you might have thought, huh? And she runs through the whole alphabet like that. The law is extensive and complex. Weston, Garrou & DeWitt, one of the largest First Amendment law firms in the United States, frequently assisting adult industry clients, specializes in all the following areas, among others:
- First Amendment Law
- Censorship Issues
- Content Evaluation
- Media Law
- Gaming Law
- Internet Law
- Copyright & Trademark
- Domain Name Disputes
- Privacy Litigation
- Criminal Defense
- Permitting, Licensing & Zoning
As Cash.com's Peter Dorsi [2003] observed: "While possibly the most valuable of the seminars offered at trade shows, the legal seminars can also prove to be the most frightening." The inescapable fact is that you really do need a lawyer: "This business presents above-average risks of legal complication, and it is foolhardy to proceed in the adult Internet without competent legal guidance and navigation." [Obenberger 2001]
Armchair Lawyers
"One thing that's always bugged me about this business is the mass of armchair lawyers waiting in the wings on message boards, praying for an opportunity to show off their stuff and impress everyone with their knowledge." [Dino 2004] He goes on to say that message boards do serve a useful purpose in the industry, but asking for advice about legal issues is not one of them, "nor is the posting of such advice by people who are not qualified to give it without some form of disclaimer."
Considering the international shifting complexity of laws, regulations, and risks affecting the adult Web it's no wonder that obtaining good legal representation can be an expensive proposition, "A proposition that often leads overly frugal and under-capitalized Webmasters alike to turn to rather dubiously 'informed' opinions on industry message boards and Internet searches returning often questionable information." [Yagielowicz 2004]
It's a matter of money but saving it here is a false economy: "it's far cheaper to ask around and hope that a more 'experienced' webmaster will come to your aid for free. It may be cheaper in the short term, but when that flawed advice lands you in front of a Judge because it was wrong, you're not going to get much sympathy when you mention that your flawed judgment came from the opinion of a faceless poster on some message board in cyberspace." [Dino 2004]
"To sum it all up - if you're a webmaster, you need good, solid and reliable legal advice. Even if you only build galleries, you need to at least have initial contact with an attorney who's qualified in 'Net and porn laws so that if something does come up, you won't have to waste any time going over the background "story" behind your enterprise. If you can find a good attorney who will charge a small retainer, it's worth it. Why? Because you never know when you'll need them." [Dino 2004]
XBIZ's Stephen Yagielowicz [2004] says he always finds it surprising that "most Webmasters only consult with an attorney after they have run afoul of the law, or had their rights somehow infringed upon. When Webmasters are asked about whether or not they have retained counsel, the most frequent response I hear is 'A Lawyer? I can't afford one!'" But you know in your heart that you can't afford not to have one and it's also unwise to leave it until the last minute. Compare with health care-should you skip the regular dental checkup or wait until you desperately need a root canal? Should you go to the doctor to check out that tiny little lump or wait until you're beyond help? A stitch in time saves nine.
Where Do I Find a Lawyer?
"It's time to take the plunge! You are ready to take the advice of all the resource sites, chat rooms and articles you've read and hire an attorney. You know that your record-keeping compliance needs to be tightened up, and you have always been a little nervous about that fetish gallery, anyway. So now what do you do? Open the yellow pages? Call the local Bar Association?" [Walters 2001]
Ten Questions Webmasters Ask Most
Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He does the adult trade show circuit as a legal keynote speaker. Some new questions will have come up in the meantime, but these are the ones he heard most often from webmasters:
- If I include some text on my site, will that help me avoid an obscenity prosecution?
- Do I have to be concerned with state and local laws?
- How many forms of ID should I require before a shoot? Is it OK to take a picture of the ID?
- How long do I have to keep 2257 Records?
- Can I hire a lawyer or somebody else to be my records custodian on the 2257 notice?
- I'm planning to shoot overseas content. Do I have to comply with 2257?
- What can I do to protect my images from being stolen?
- If content exclusively licensed to me gets ripped off, can I bring an infringement suit? Do I need the photographer?
- How do I hire a lawyer to help me? How do I find somebody close to home who knows the law of this business?
Source: Joe Obenberger, Esq. "Ten Questions Webmasters Ask Most," YNOT News 10/02/01. [LINK]
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Attorney Joe Obenberger points out that adult webmasters operate within "a body of law that, in the main, is national in scope with local wrinkles. The specialized legal knowledge of statutes and cases used in this field is outside the knowledge and experience of most local general legal practitioners. Accordingly, expertise means more to you than geography. An essential part of your team is a First Amendment and adult entertainment lawyer." [Obenberger 2001]
The single most reliable place to find lawyers with this knowledge, although not all of them will take Internet-related cases, is in the membership roster of The First Amendment Lawyer's Association (www.firstamendmentlawyers.org):
The First Amendment Lawyers Association is an Illinois-based, incorporated, not-for-profit association. Originally formed in the late 1960's, FALA now boasts over 180 members. Its membership includes the most prominent First Amendment attorneys in the United States, covering virtually every state. [FALA]
Though all of the boards provide attorney listings, according to Obenberger [2001] "the FALA membership list, in my opinion, is, by far, the best and most reliable place to look for a First Amendment lawyer." But, wherever you are looking, the important thing is finding a good match, as Kath Blackwell stresses in an especially good introductory article:
All lawyers are different-some are humorous, others serious. But what's most important when you come right down to the nitty-gritty-is finding the lawyer that is right for you. Are you approaching this as a webmaster, a partner in an established business or start-up company-or as a hosting service, ISP or content provider? There are so many different types of adult industry entrepreneurs-and there are equally as many types of attorneys available to get you moving in the right legal direction. No matter who is doing the talking-they are all serious about one thing. Making sure you and your sites are legal. [Blackwell 2004]
Consult Your Attorney
It's a good sign if lawyers are active in speaking and writing on adult industry topics and often the firms' Web sites have useful free resources. Although they always caution that the content is "informational only" and that you should always consult your own attorney, there is much of value here. For example, coollawyer.com has a number of columns by Judith Silver Esq. originally appearing in Entrepreneur Magazine (www.coollawyer.com) such as:
- Cybersquatting Ain't What It Used To Be
- How Advertising, Affiliate and Co-branding Agreements Protect Your Business
- How Domain Name Purchase and Sale Agreements Protect Your Business
- How Model Releases Protect Your Business
- How Complying with 18 USC 2257 Protects Your Adult Business
- Movie Day at the Supreme Court: Trying to Define Obscenity
AdultInternetLaw.com, recently purchased from attorneys Richard Chapo and Greg Geelan by JD Obenberger & Associates, has many articles that first appeared for publication in YNOTnews, Klixxx Magazine, Chicago's Gentlemen's Pages, The Adult Chamber, Adultnetsurprise, and other familiar sources. Among other resources, Weston, Garrou, & DeWitt's firstamendment.com site has an archive of Lawrence Walters' monthly Adult Industry Update (www.adultindustryupdate.com), and you can also sign up for the free e-mail version there.
Get a Good One
Compared to a buddy on the message board, all lawyers are actually lawyers and know what they're doing. However, some lawyers are better than others, and some, through specialty and experience, are a much better fit to your particular business requirements. How to choose?
The ever-dependable Lawrence G. Walters, Esq. comes to the rescue here with a checklist of "what qualifies an attorney to represent an adult Web site, and what questions you should ask potential counsel. It is intended for those webmasters seeking counsel for the first time, or those who want to make sure their existing counsel is the right choice." This piece is a must-read, but the first requirement is that you should not be your attorney's first adult industry client-it is essential that your attorney have experience representing adult industry clients. Other questions to ask include:
- How many adult industry clients have you represented?
- How long have you been keeping up on the legal issues affecting adult webmasters?
- Are any of your Adult Industry clients in jail?
- Have any been forced out of business?
- Will you be my media spokesman and do you have the experience to do so?
- Will you represent me on appeal if we lose?
Source: Lawrence G. Walters, Esq. "Cross-Examining Your Counsel," The Adult Webmaster 7/19/01. [LINK].
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A relatively new resource and a good one, is the Internet Freedom Association (www.i-freedom.org). This is a particularly extensive source of relevant current news. According to their mission statement, this is "a non-profit Corporation dedicated to protecting the right of adults to display and receive adult or controversial material online. Membership is open to all interested individuals and entities who share the vision of an Internet free from governmental oppression and censorship."
The familiar webmaster resource sites also have news and, of course, their legal resources sections. Klixxx Magazine, for example, has a substantial archive (LINK) of relevant articles, including the following:
- Legal Issues Associated with Online Porn Sites
- First Amendment Protections for Employees Involved in the Adult Industry
- A Newbie's Guide to the Legal Side of the Biz
- Tax Issues: An Interview with John Fitzgerald, CPA
- ASACP - What it Does, How it Works & What it Can Do for You!
Cozy Frog, a Klixxx recommended webmaster resource, also has an extensive Legal Help Guide (www.cozyfrog.com/guides/legal/) with over 50 very helpful articles on legal aspects of the adult industry.
Do You Need a Lawyer?
You should be convinced by now that you do, and maybe even sent on the right track to find a good one. It's really essential to do so, and equally important to find the right one:
The days of the Wild Wild West are gone, and our Industry is under a microscope by both the federal government and numerous 'morality' groups. The large adult video companies that survived the war on the biz during the '80s have consistently budgeted a significant percentage of their profits for legal representation. While it may have been possible to survive without engaging legal counsel during the infancy of the Internet, the Industry has matured and will be held responsible for its actions. Get the most out of your legal budget by identifying the proper specialist for your business. [Walters 2001]
The one thing you don't want, as Lawrence G. Walters puts it, is to draw a Get Into Jail Free card, or as Joe Obenberger put it, try on an orange jumpsuit for size. It's hard to be out there making money when you're in the joint. A good lawyer can help make sure you remain on the up-and-up, outside and prospering.
References
Kath Blackwell. "A Newbie's Guide to the Legal Side of the Biz," Klixxx Magazine 05/03 2004. [LINK].
Dino. "Armchair Lawyers," PornResource 02/17/04. [LINK].
Peter Dorsi. "Basic Legal Concepts For New Webmasters," YNOT News 01/16/03. [LINK].
Joe Obenberger, Esq. "Ten Questions Webmasters Ask Most," YNOT News 10/02/01. [LINK].
Judith Silver, Esq. "The ABC's of Website Law," YNOT News 10/01/01. [LINK].
Lawrence G. Walters, Esq. "20 Practical Tips for Beginning Adult Webmasters," Klixxx Magazine 05/03 2004a. [LINK].
Lawrence G. Walters, Esq. "Cross-Examining Your Counsel," The Adult Webmaster 7/19/01. [LINK].
Lawrence G. Walters, Esq. "Get Into Jail Free Cards: Re-Evaluating Free Hardcore Websites in the Current Legal Climate," Klixxx Magazine 05/06 2004b. LINK].
Lawrence G. Walters, Esq. "The New Dangers of Running a Home-Based Adult Website Business," Adult Chamber 2004c. [LINK].
Stephen Yagielowicz. "Do It Yourself Copyright Law," XBIZ 01/08/04. [LINK].
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