It seems the difference between legal adult video shoots and prostitution is supposedly in adult videos you are paid by a party who is not a sexual participant, and yet Seymour Butts (who now has a Showtime reality series- "Family Business") and Ed Powers participate sexually and don;t seem to have legal problems.
In light of their success, would not a viable alternative to the AMPs and aromatherapy parlors that are under siege in L.A. Be a business that provides sets, equipment and "casting" assistance to "independent producers" ? I once saw a guy advertising something like this, but never checked it out.
The issue is not whether the tab is "paid by a party who is not a sexual participant." If it was that simple, then men could hire providers for other men and no one would be breaking the law.
The question as I understand it is whether the money is being paid for the sexual gratification of a participant, whether or not the participant is the person footing the bill. If, instead, the money is being paid to make a movie and some people happen to be enjoying themselves at the same time, that is a different situation. Does it make sense? Not really. I never said that it did.
As always, trying to change the label doesn't make a difference. If you bring a video camera and claim to be making a movie but are still doing it for the sake of your own satisfaction, you aren't likely to fool anybody (just like women who hold temselves out as escorts aren't fooling anybody). The illusion becomes even less convincing if the same women perform for several different movies per day on short notice.
If you want to go all out to create the illusion - hire a lighting crew, stage hands, makeup artists, sound engineers, etc., provide work spaces, supplies and equipment for all of them, write a script and then perform what is written in the script - well, then you might as well also hire a professional to act in your place and try to make some money off the project.
My understanding is that filming adult movies is protected by First Amendment Freedom of Speech / Expression rights, while simple prostitution, being non-expressive, does not enjoy the same protection.
I recently attended a seminar on porn production and I asked about this very topic. I was told that, in the unlikely event that you are caught having sex at home and you're busted for prostitution, filming it is a defense only if you can show that you actually had plans for distribution (i.e. a contract, a story board, etc.) If you were not filming, you won't be protected. In any event, most providers will not consent to being filmed, and adult actresses charge more than ordinary providers (typically upwards of $700 / hr.)
In any event, filming an adult movie requires a license. You have to apply for a separate license from the city for each day that you shoot, and it is expensive (another $1,000 / day or so in L.A.). The law is unsettled on whether you need a license to film in your own home, but you certainly need one to film outdoors or at a rented location. Actually, filming licenses are free in San Diego; I wonder why the adult industry hasn't relocated down there.
It should be obvious to anyone that the distinctions between legal pornography and illegal prostitution are fine, ill-defined, and arbitrary. As a lawyer-to-be, I am very interested in these issues. It is my opinion that the new Lawrence v. Texas case has finally opened the door to challenging the constitutionality of anti-prostitution laws; we could easily see a repeal of such laws within the next few years.