Wednesday, March 18, 2009

Well, it will be here tomorrow. That’s when the new 2257 rules and regulations to combat child pornography go into effect. The big question is: will these rules also combat art nude photography? Perhaps a bigger question is: were they written with the intention of combating only child pornography or is it something more insidious designed to go after serious artists, as well?

If these new rules are meant to combat child pornography, then all of the images covered must by definition be pornographic. I mean, if an image is not pornographic and a minor is involved, then it can’t really be kiddy porn, can it?

I wrote earlier about how these new regulations might have hampered or prevented the creation of some great artworks of the past. (Click here to see that posting.) Today I am going to write about something a bit more relevant – if and how these new rules will apply to my own photography.

First, let’s take a look at what some of these new rules are. For this, I am going to use this web page from the U.S.Department of Justice, its 2257 Compliance Guide coming from the Obscenity Prosecution Taskforce.

Let’s begin with this statement from the summary of the new requirements:

Part 75 requires that, prior to producing a visual depiction of actual or simulated sexually explicit conduct, a primary producer must examine a government-issued picture identification card belonging to each performer in the visual depiction that demonstrates that the performer is 18 years old or older. The primary producer must then record the legal name, any aliases, and the date of birth of the performer, record the date of production of the depiction, and make a copy of the picture identification card. Once production is complete, a copy of the visual depiction must be maintained along with these records.

So, as I read this, I will need to make a copy of every single negative that could possibly be covered by the new statute and keep them with the ID’s. If I shoot 120 frames in a typical three-hour photo session, and half of those show frontal nudity that may be covered, I will need to scan 60 negatives, which is much, much more than I normally scan and will take a helluva long time to complete. If that isn’t an encumbrance to my art, then what is?

Now, let’s look at what actually will be covered by the new rules. According the DoJ:

Q. Which depictions are covered by the regulation?
A. The regulation applies to visual depictions of actual human beings engaged in actual or simulated sexually explicit conduct. However, with respect to depictions of actual sexually explicit conduct consisting of only lascivious exhibition or depictions of simulated sexually explicit conduct, the regulation applies only with respect to such depictions that are originally produced after March 18, 2009.

Q. What is "lascivious exhibition of the genitals or pubic area"?
A. The regulation does not define the term "lascivious exhibition of the genitals or pubic area," but the Department of Justice will rely on precedent from child pornography prosecutions for 18 U.S.C. § 2257 investigations and prosecutions involving such depictions. In that context, judicial precedent indicates that a depiction can constitute lascivious exhibition if, among other things: (1) the focal point is on the subject's genitalia or pubic area; (2) the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; or (4) the visual depiction is intended or designed to elicit a sexual response in the viewer. For more detail, see 73 Fed. Reg. at 77433 and 77440-41.

Well, my photos don’t include sexually explicit conduct, either real or simulated (though in the case of my photo that was banned by Kodak, it was mistaken for one - her hand covering up her naughty bits being mistaken for her "touching herself.") My prime concern, and the concern of many others I’m sure, is the new “lascivious exhibition” clause. So just what does that mean?

According to DoJ, the regulation does not define it, but as you can see, it lists some things that will apply. First of all, what bothers me a lot is that this list is “among other things.” This is their way of saying that this is not a complete list and that they can arrest you for something that is not specified here. It seems almost Kafkaesque. I think it was Franz Kafka’s novel The Trial in which the protagonist is arrested but is never told what the charges are against him. With these new DoJ rules, I’m sure you’ll be told what the charges are when you’re arrested. The problem is that they won’t have told you that what you did is illegal until after you’ve already done it!

Still, let’s look at some of those things that are listed. The first says that these rules apply if “the focal point is on the subject’s genitalia or pubic area.” By “pubic area,” I imagine that it includes pubic hair or the area where it would be if it’s been removed. So, let’s look at an example – in this case, the photo at the top.

I made this photo last summer during the workshop I attended in Colorado. It shows a close-up of the model’s mid-section, and I intended it to be a study of hips, thighs and hands. There was no pornographic intent here, but one can argue that the pubic area is the focal point of the image and it is therefore covered by the regs (and is, by definition, pornographic). I've posted another photo that I made back in 1995 that can have the same thing said of it. So, either I must forever stop making images like these or risk going to prison.

Now, let’s look at #2: “the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity.” I suppose that a bed is the most obvious place that falls under this point. So let’s look at the color photo I made of Betcee May in 2007 in my hotel room near Los Angeles. I didn’t have an outdoor location to work in, so I really had no choice but to photograph Betcee in the room. Here we see her lying on the bed (a sexually suggestive place), and her pubic hair (meaning her pubic area) is clearly visible. This image may seem a bit on the glam side, but I definitely don’t think it’s pornographic – yet according to what DoJ has written, it is. (I guess that from now on I’ll have to ask my models to stretch out on the floor instead if I don’t want to go to prison. Either that or keep a fig leaf in my camera bag at all times.)

Okay, now let’s go to #3: “the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.” I have never been exactly sure what the “coy” means, so I looked it up in the dictionary, and this is how Webster defines it: 1. shy, demure; 2. pretending to be shy. “Demure” means ‘modest, reserved or decorous.’ So, potentially, #3 could pertain to images where the model looks willing to engage in sexual activity or looks unwilling to engage in sexual activity! What kind of bullshit is this? I mean, can’t they make up their minds??? If it weren’t so serious it could be laughable.

Perhaps more important is that this refers to something called attitude, which is open to many ways of interpretation. If I’m doing a frontal nude portrait of a model, can I only make photos where that model has a stone expression on her face, revealing no attitude at all? Do I run the risk of five years in the slammer if I dare to have her display different expressions, some (or even one) that may interpreted as being sexually coy or willing? I’m posting several examples where the model’s pubic area is visible and they have expressions subject to interpretation. Do I need to give up making images like this for fear that somebody at DoJ will interpret them a certain way and thus be deemed pornographic?

I could, of course, put a bag over the model’s head to make sure that no expression shows, but then DoJ would probably get me by claiming that it was one of the “other” things that they didn’t bother to mention. (Perhaps a fig leaf would work better.)

That same interpretive component applies to #4, too. What’s interesting is that is says that the depiction is “intended or designed to elicit a sexual response.” Suppose someone creates an image where the photographer or artist had no such intention, but it is still interpreted by someone else to have that intent. The only person who can truly know the true intent is the one who created the image, but what if someone at DoJ believes otherwise? As I wrote above, regarding the image that was banned by Kodak, I know what the intent of the placement of her hand was but someone at Kodak thought they knew better. If Kodak can do it, why can't some prosecutor do the same?

Now, some of you may be saying that I'm interpeting these things too broadly and that I'm taking the meaning too literally, but that's just the point I'm trying to make. As long as these rules are written the way they are and I can apply them to my photography, what's to stop someone at the Department of Justice from doing just that?

Another thing that bothers me about the rules are those relating to non-U.S. citizens. It says that if I photograph a foreign model outside the U.S., an ID issued by a foreign government is acceptable. If, however, I photograph that same model in the U.S., that foreign ID is not acceptable and only a U.S. issued ID is valid. I don’t know if foreign models with work visas get issued photo ID cards with their date of birth listed, but if they don’t, then what? Even more, suppose I decide to photograph a foreign friend on an unpaid, non-commercial basis. How the hell is that person supposed to get a U.S. issued ID card?

The way I see it, what is covered by these new rules is so broadly defined that much of my photography is potentially covered by it, and I therefore do not know if I can continue to do fine art nude work due to the potential liability. Either that, or I will be so restricted in what I can do that continuing may no longer be worth the effort.

Of course, there is the “Safe Harbor” exemption, which seems to mean that you stipulate that you keep the proper records in the normal order of business and don’t have to comply with the impossible-to-abide-by record keeping requirements. According to the DoJ website, one can apply for this exemption for:

any visual depiction that (1) is intended for commercial distribution; (2) is created as a part of a commercial enterprise; and (3) either (i) is not produced, marketed or made available in circumstances such that an ordinary person would conclude that the matter is child pornography, or (ii) is subject to regulation by the Federal Communications Commission regarding the broadcast of obscene, indecent, or profane programming.

The question is, regarding a fine art photographer like me, what exactly does “commercial distribution” and “commercial enterprise” mean? I have always said that I create my photos for non-commercial purposes, with the word “commercial” being defined to me as ‘for advertising.’ If one intends to sell one’s art prints, is that considered to be commercial? And just because one intends (meaning ‘hopes’) to sell prints, will the enterprise really be considered commercial if few or no prints are sold in actuality? After all, anybody can put up a website and claim that the prints are for sale, even if that is not a serious intent.

For quite a few years, I’ve been filing photographic income on my income tax as a commercial photographer would. The problem is that my meager photo income is dwarfed by my expenses, and someone could easily argue that my photography is not really a true commercial enterprise (or certainly not a profitable one).
Once I get started printing again (whenever that will be), I’m planning to apply for membership in a cooperative gallery here in New York and also to run some ads now and then in B&W magazine. If I get accepted and get to exhibit my work there, and run the ads, will that be enough to legitimize my photography as a commercial enterprise, even if I earn no profit from it?

I also realize that there are some laws on the books that are rarely if ever enforced and that are routinely broken. Jaywalking is an obvious example. I cannot agree with those who think that we can just leave things as they are and think that these new regulations will never be used against legitimate art photographers. The 'church ladies' warning that one must get by to access this and other blogs of fine art photography proves that there are those who do not consider us to be legitimate. Jaywalking, as far as I know, also does not carry with it a five year prison sentence.

All I can say for certain is that these new, restrictive 2257 rules go into effect tomorrow and that as long as they’re in effect, I can no longer do nude photography as I once did. The truth be told, I really do need to take a break from photographing for a while, as I’ve got a lot of catching up to do with things and need time to work on other photo-related projects. However, cutting back on my photography should be my own choice, and I resent the fact that I’m being forced to do so by unfair, unconstitutional government regulations!

Let the legal challenges begin.

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