"Paying for one's own pleasure is illegal. But if you intend to sell it, it's legal." If that were true then escorting would be legal, and only the clients would be breaking the law.
Even if porn is not "just someone paying someone else to perform sex acts on film", it doesn't fit the definition of prostitution. If it did, it would still be illegal.
Whether smoking pot should be a crime is a fair question, but not very similar to the one we're discussing. Smoking pot in a movie would still be a crime because all the elements of the crime would be present. The elements of prostitution are not present in the making of an X-rated film, which is why the actors aren't breaking the law.
I was just curious. Paying for sex is illegal in most of the US. But paying for it, filming it and calling it "porn" IS legal. How does that work?
Because you are making a movie. As long as you have all of the necessary permits it is legal...to answer your next question, no, you can't just bring a camcorder to your next appointment and call it a porn film. You are not paying a woman for sex in a movie, two(or more) actors are being payed to perform on film.
Yes, "porn" is legal, otherwise thousands of people would be out of work.
Here's the essentials as our lawyer explained it.
If you are paying someone to have sex and just happen to film it, it's still prostitution.
BUT when creating an artistic "work" (i.e. adult film) you are NOT paying for "sex." Sex may occur in the course of the production. But the porpose is to creat an end product, not to enage in sex.
You obvously can't usually creat adult fims in public unless you have local licenses. (I want sooo bad to make one on Blacks Beach...) Though in or on private property properly screened, it should not matter. Some states, countries, and local jurisdictions may have laws so you have to check locally. But half the homes in Simi Valley are adult film sets from what I hear.
If you previously agree and contract to invest in an adult oriented film in which you may also perform separately and you receive a separate royalty or compensation for your sevices it would be legal even if you engaged in sex during the course of production. So long as there is intent AND ability, to complete and market the product. Otherwise half the porn producers and cameramen in the country would be in jail along with the actors and a good number of married couples.
It does not mean you have to invest a million dollars. We can produce films on a minimum budget by using our cost and profit sharing format, so our clip investments are minimal. And we'd LOVE to have you invest in one or more of our films!
That also does not mean the product (film) will be released. There are lots of adult and regular films that are never released commercially, or that are held for extended periods for various reasons. But the INTENT has to be there. A ratio where you made 200 "films" and released 1, probably wouldn't fly with a jury. Though a ratio of 3 or 5 to one seems reasonable to me and is probably about the average in Hollywood.
The ABILITY to distribute is the other half of the equasion. Like we are proven legit performers, and producers with a track record. We have international, ongoing distribution, we have appeared in films produced by others, and we are starting to produce films in which we do not perform, etc. We receive and distribute regular payments from the sales of our material.
We also have a large investment in infrastructure. Cameras, lights, computers, DVD production equipment, office equipment, etc. We have the CAPABILITY to produce and distribute a commercial product as part of a legitimate, growing adult film production business.
To sum this up, pretty much what separates porn from prostitution is the reasonable "Intent," "Ability" and "Capability" to produce an end product.
But before you grab your camera phone and head off to see your favorite provider, please check with a media rights attorney in your area.
Giggle,
TS Jamie
PS Please visit our web site and online store and order our videos! And If you want to star in one please let me know!
-- Modified on 6/3/2007 7:25:33 PM
to protect you from LE, if LE wants to get you.
People spend countless hours picking through the laws to find the perfect excuse to allow us to hobby without fear of LE, but I've got to tell you something: The vice cop is not going to be impressed. Once you're busted, your name is in the paper, wife, friends and employer all find out and you are toast even if you do eventually "beat the rap".
The best way to avoid all of this is to do your due diligence, stick with well reviewed providers and stay up on the local scene here on TER.
You'll never be 100% safe, but the name of the game is to improve your odds.
(still not a lawyer)
Mrfisher is right about LE. And I'm not a lawyer, but I should clarify a couple of my earlier points.
Our making videos (even if a performer is also an investor) is NOT meant to be a way to circumvent solicitation laws. Our intent is to make our money from selling the video, not from any sex that may occur in the course of the performance.
Think of all the blockbuster Hollywood films where the actors perform romantic scenes totally naked. They aren't breaking the law, even though they are paid and their genitiles may touch and it's even possible that the arousal of kissing, etc could allow a fluid exchange. And in many cases the actors own a piece of the film company and or are the producers or directors. Let's start with Woody Allen and I think Mel Gibson qualifies too.
For one thing having sex with hot lights and somebody standing over you shoving a camera in your face while giving head, and occasionally stopping the action for a better viewing angle isn't exactly a romantic GFE session. Though I guess it is the ultimate PSE! Giggle.
Prostitution is the exchange of an item of value for a sex act. Making a video, even with a performer who makes an investment in the production is NOT the exchange of sex for money. It is the INVESTMENT of money to produce a product which will be marketed and sold to third parties, with the expectation of a financial return and hopefully a profit.
There's a BIG difference.
Giggle,
TS Jamie
-- Modified on 6/4/2007 6:31:14 PM
...aren't on the receiving end of the BBBJ-ready-for-the-money-shot-now-let-it-go-on-her-face-GREAT!-give-us-a-BIG-smile-honey. The other distinction is that the porn industry is big business, and thus exempt -- in certain parts of the country. I don't see Wicked Video moving from the San Fernando Valley to, say, Salt Lake City anytime soon....
I still don't think I'm being clear.
It doesn't matter if someone invests in a film, AND is contracted separately to act in the same film. They are two separate and distinct matters. If - keyword - "IF" there is intent and ability to market a commercial product and the point of the engagement is not sex, but the production of "art."
AND if the agreement is NOT designed simply to circumvent standing law. I guess I should have qulified that before. This whole issue is complicated for a forum.
But that is where the basic distinction lies. A legit production company, whether it's a small one or Playboy, has the CAPABILITY to produce and market an end product and a record of previous profitable productions. There are written contracts involved. There are recordkeeping laws to comply with, etc.
Someone perching a consumer cam on the dresser, next to a stack of hundred dollar bills while having sex with a hooker isn't a "production company." And a video star having sex on camera while participating in a legit film, even if the other actor is an investor in the film, isn't a prostitute. I know it's muddy water, but it all boils down to intent and ability.
Hugs,
TS Jamie
-- Modified on 6/4/2007 6:58:50 PM
Here's what I wrote a few months ago in response to the same question:
California law defines prostitution more or less as an exchange of money or other valuable consideration for a "lewd act" the purpose of which is to sexually gratify one of the participants.
Actors in an adult film get off, but that's not the reason they're being paid. Instead, they are being paid so that the producers can make a film which will be sold commercially.
Paying an escort and filming it doesn't get around the ban on prostitution because the payment is still for your own gratification. The film you make won't protect you, but it will be awfully good evidence for the D.A. to show the jury.
Paying for one's own pleasure is illegal. But if you intend to sell it, it's legal. Commerce redeems all sins.
Why is pot illegal? Because the law says so, not because of any inherent property in pot that makes it worse than, say alcohol.
Strip away the legal niceties and porn is just someone paying someone else to perform sex acts on film. Why it's legal and the hobby is not is just as arbitrary as pot's illegality.
-- Modified on 6/6/2007 5:08:09 AM
"Paying for one's own pleasure is illegal. But if you intend to sell it, it's legal." If that were true then escorting would be legal, and only the clients would be breaking the law.
Even if porn is not "just someone paying someone else to perform sex acts on film", it doesn't fit the definition of prostitution. If it did, it would still be illegal.
Whether smoking pot should be a crime is a fair question, but not very similar to the one we're discussing. Smoking pot in a movie would still be a crime because all the elements of the crime would be present. The elements of prostitution are not present in the making of an X-rated film, which is why the actors aren't breaking the law.
Why is paying for sex in one way legal, but in another way not? Why is pot illegal and alcohol not? Both questions are related in that the rationales seem fundamentally arbitrary.
By focusing on how things are defined, you still have not touched on WHY they are defined that way.
Prostitution could be simply defined as one person directly paying another for sex. Porn can be defined as someone paying others to have sex so then can record it and sell it. Why should porn be legal? Fundamentally, money is exchanged and sex occurs. That's just the way it is, right? Why is prostitution illegal? Uh, because it just is.
I'm not saying pot SHOULD be legal just because alcohol is. I'm saying that one is and one is not due to political and philosophical reasons, not anything rational having to do with their inherent properties or effects. I suspect the same for providing and porn.
From about 1920 to 1933, by virtue of a constitutional amendment no less.
Then people organized a political movement to make it legal again.
There's your answer.
Laws don't come from the sanctity of logic, but from the body politic.
(still not a politician)
"Why is paying for sex in one way legal, but in another way not?" How about because one way you're paying to actually HAVE sex but the other way you're merely paying to watch a recording of other people doing so?
Whether you agree that prostitution should be illegal or not (I presume everyone on this site would say "not"), this is a sensible distinction to draw. People who pay to actually have sex might catch serious diseases and might spread those diseases to others, but people who just watch dirty movies won't. It's also reasonable to think that the availability of alternate, legal sex partners would undermine too many marriages and harm too many children. Then there is the claim that anything which undermines monogomy is bad for society. I'm not saying I agree with these arguments, but plenty of reasonable people do.
We also have to take the first amendment into account. Forbidding a particular form of expression is a serious thing and the government can only do so if it has a compelling state interest to protect and is doing so in a very narrowly tailored manner. Forbidding some types of transactions is another matter entirely and does not raise free speech issues.
in the law, issues that are subject to opinion are called "issues of fact".
Issues of fact can't be eliminated from life, and that's part of why people are so baffled that lawyers can't always give them some protective ritual or incantation.
And courts have little problem with issues of fact (ie decisions that depend on what they think of the evidence). They do it ALL THE TIME.
Most (true) crimes carry some sort of requirement to intend what you did, or know what you're doing, something like that.
And courts really have very little problem, from one case to the next, deciding whether for example, you're really making porn and getting your rocks off along the way, or, getting your rocks off and making porn as an afterthought.
It's just like the fella who thinks he's the very first person to think of giving all his money to his GF to hold in trust to support him, so his creditors don't get it. He thinks he's the very 1st person to think of this, and no judge would ever see through it. Or ever see thru a religion that required having sex following the parishoner's offering.
So, those notices about agreeing to spend $300 an hour just for somebody's company? It's just a red flag that they have a guilty conscience. What would YOU think if you were on a jury? Oh, yeah, I know, let her go. But do you really think it'd fool your ex?
I suspect that the reality of production probably isn't too conducive to having a good time.
Actually, it seems to me that a reasonable woman should be responsive enough to her BFs problems, ie, roving eyes, needing strange stuff, etc. You notice they take A LOT of money to change their hair color, clothing, etc, and EVEN go schizo for us - how thoughtful can a girl be?
But you notice also that lawyers NEVER talk about "reasonable women" - it's ALWAYS "the reasonable man". And WHY do you think that is?
You distinguish between production and consumption as if they are independent concepts, but they are really just two sides of the same coin. It wouldn't be sensible to make owning and watching porn legal but make producing it a crime.
If the law agrees that paying for porn is less of a problem than paying for sex, it should also agree that making and selling porn is less of a problem than selling sex. Surprising though it may be, this is actually what the law does.
How does it do this? As I explained when I answered your original question, it does this by making the purpose of a participant's sexual gratification part of the definition of prostitution. This element is absent in making porn, which is why the latter is legal while the former is not.
"Gratification" as a goal becomes the dividing line, not the objective act of sex itself. So once again we're back to my point: paying for one's own pleasure is illegal, but paying to produce an alienating simulation of pleasure for commerce IS legal. If the actors happen to get off during the process, it's incidental.
You seem to think the law generally doesn't care about motivation, but you're wrong. Motivation matters a great deal, especially in criminal law. Let me give you a few examples.
If you try to swat a fly and accidentally hit me, you haven't committed a crime. If you make exactly the same motions but do so because you WANT to hit me, you have committed a battery. What matters isn't just what you do but also why you did it.
Now imagine you're an actor in a play. Your character solicits a prostitute. In order to show this on stage, you approach the actress who plays the prostitute and say "Would you sleep with me for $400?" (I never said the play was well written.) Have you broken the law? Of course not, because you weren't really trying to hire a sex partner. Uttering exactly the same words to someone you actually hoped would accept your proposal would be a crime, so what's the difference? It's your motivation.
The laws against prostitution are not designed to prevent people from paying others to engage in sexual acts. Instead, their puspose is to prevent people from hiring sexual partners for themselves. There's an important difference between the two. Whether the difference justifies criminalizing one but not the other is a reasonable question, but the answer is a matter of judgment rather than one of logic. Claiming that the answer our government has chosen is illogical misses this point entirely.
Texas for one considers filming of sexual acts for money similar to prostitution and will arrest the actors and producers for the filming.
To the best of my understanding though, the defining factor in states where porn filming is legal (and prolific) are three factors:
- BOTH / all actors in the film are paid.
- the film is intended for viewing /distribution (public or private)
- the film and crew have authorized production permits.
(and this goes without saying) all actors are over age 18 and not under the influence of any sort when signing the model release form.
Has anyone heard of this?
Whatever legal protection porn has is usually under the 1st US constitutional amendment guaranteeing freedom of speech. There is no such guaranty for sex. personally, I think if you are allowed to pay for food, then you should be allowed to pay for sex.
Let's all write to our congressional representatives telling them how much we suffer, because unless we pay for it, we don't get it 
Pursuit of happiness, etc., etc., etc.
It was the Declaration of Independence that declared our right to the "pursuit of happiness", not the Constitution. We should have woven it into the latter and all this might be moot!