AEE Legal Panel Helps Performers, Studios Survive 2020 & Beyond

Above from left, Melissa Steen, Michael Fattorosi, Allan Gelbard, D. Gill Sperlein and Mark Kernes. Photo by JFK/FUBARWebmasters.com. LAS VEGAS, Nev.—Panels dealing with the law and related issues dominated the seminar schedule at the 2020 Adult Entertainment Expo/Adult Novelty Expo, but in contrast to prior years, the panel "Legal Issues In 2020 ... and Beyond" featured some attorneys (and one human resources manager) who haven't graced an AVN stage in several years. Maxine Lynn, of the law firm of Keohane & D’Alessandro, PLLC, specializing in intellectual property issues, was the first to speak, and she gave the audience of roughly 100 convention attendees a rundown on what it takes to protect their creations online, on DVD and even in print. Lynn first explained what copyright means, how it's accomplished, urged creators to use it, and warned that there are deadlines which must be met in order to protect one's rights. She also explained how infringing content can be removed from the web. She also explained how trademarking works, why it's useful, and how to apply for them, both here and internationally. She noted that previous restrictions on "immoral" or "profane" marks (like for the clothing line FUCT) have now been jettisoned by the Supreme Court. She then noted that domain names can also be used as trademarks, and outlined how infringements on any protected content can be dealt with, either through federal agencies or the courts. The next speaker was Allan Gelbard, a sole practitioner who has represented adult companies and performers for many years. He spoke about the issues that can crop up between talent agents and their clients. "A talent agent is an agent, and agency law applies to talent agents," he began. "So a talent agent, by definition, owes his clients a fiduciary duty, which means he owes them the duty to perform in their best interests over his, so a talent agent can't do something that's easier for him at the expense of his performer." Gelbard stressed that the agent can't make money from his performer's appearance or activities without telling the performer and without giving the proceeds to the performer absent a contract that says otherwise—and that contract must have approval by the state Labor Commission, which regulates talent agents. He stressed that the agent can't add pages to a Commission-approved contract without submitting them to the Commission for further approval, nor can the agent charge the performer (or a studio) non-contractual fees that aren't given to the performer. Gelbard detailed a number of other code violations he's seen take place in the adult industry, such as charging the performer for photos, banners, booking "fees," agency "fees," adding "fees" to plane fares and more, warning the audience to be on the lookout for them. "The Talent Agency Act is remedial," he quoted. "Its purpose is to protect artists ... from the abuses of talent agencies." In response to an audience question, Gelbard opined that several agents in the adult business don't follow the rules set down in the Talent Agency Act. Finally, Gelbard warned that, "It is illegal to send an artist to an unsafe place," such as a drunken frat party or other venue where they may be groped or molested. "If you're sending your performers to a place like that, a hotel room, sometimes out of state, that's awfully close to prostitution, because there is no real interest in putting that image up ... and if you're an agent sending your performers to a collector or if you're a performer who gets sent to a job like that by your agent, you should fire that agent." Next to take the mic was San Francisco-based attorney D. Gill Sperlein, who's long been involved in the efforts to decriminalize all sex work in California. Referring to the seminal case of People v. Freeman, which legalized adult filming in the state, Sperlein noted that some performers work as sex workers as well as models, and that the federal "anti-trafficking" law known as FOSTA "is really about prostitution," and said he hoped the move to decriminalize prostitution "will follow the marijuana or cannabis trend, which is to say that people believe that the government shouldn't get involved in what people do in their personal lives." Sperlein then referred to the lawsuit filed by the Erotic Service Providers Legal, Education and Research Project (ESPLERP) against then-San Francisco District Attorney George Gascon and others, which was dismissed by the Ninth Circuit Court of Appeals in mid-2018. He noted that the basis of the case was the Supreme Court decision in Lawrence v. Texas, which said that states could not criminalize sodomy, which many have interpreted to mean that states can't legislate morality. "Really, the case was about the first steps of that cannabis model: Getting [the issue] into the debate—and I would say it worked," he told the audience. Sperlein stated that he's been working with California state Sen. Scott Weiner, who was instrumental in getting laws passed that prohibit police from using the fact that someone has a supply of condoms on them to charge them with prostitution, and that immunize sex workers who report certain crimes from being charged with prostitution. "This is a huge advancement in the safety of sex workers," he said, noting that Weiner is in the process of drafting a decrim law in California, and that there are similar movements in other states as well. The final segment of the session was devoted to AB-5, California's new "gig economy" law, under which many workers are prohibited from working as independent contractors unless they meet certain criteria. LA-based attorney Michael Fattorosi spoke to that issue, assisted by Melissa Steen, a human resources expert. "This seems to be a hot-button topic right now," Fattorosi began, "not only in California but spreading across the United States," referencing a recently signed bill in New Jersey, and noting that similar bills are in the works in Massachusetts and Nevada—but that most people don't realize that certain requirements of AB-5 have already been the law for years. "What most people don't realize in adult, if they do content production, if they own a studio, even if they hire a director or another a studio to produce content, those performers that are on your set, even for a day, are considered employees in California and in most states," he declared, adding, "And now we're seeing this with the 'gig economy' law, AB-5, and that's kind of reinvigorated this type of discussion in adult." He noted that mainstream producers hire all non-starring actors through employment agencies in order to protect them from just the problems about to face adult studios such as "overtime, workers compensation and paying state taxes." "Well, that's coming to adult now," he added, "and with AB-5, that really affects more of the online streaming services because that's a more service-based employment situation. If you're talking about digital sales of clips, AB-5 doesn't really apply, but how do performers go about producing those contents? Employment may also apply to those situations." He also warned that under the Dynamax decision, the duties employers owe to their employees, even those previously identified as independent contractors, are retroactive for four years, leaving those employers on the hook for possibly four years of back wage claims. Fattorosi then introduced Steen, who, he said, "handles such things on a day-to-day basis." Steen reaffirmed Fattorosi's statement that all performers and crews hired for video production are in fact employees under the law, and warned that AB-5 is not going to go away, and that "sitting this out" is "the worst thing you can do." Among the things that employers—production studios, etc.—will now have to focus on include payroll (including direct deposit of checks, payroll taxes, deductions, etc.); and human resources (employee relations, contracts, arbitration agreements, etc.). "We are a PEO; Professional Employment Organization," Steen told the audience. "We take on the masses and we make one large company, called 'co-employment.'... Our biggest commitment is to make sure small businesses always have big business sense, and right now, when it comes to AB-5, no one has big business sense." Steen urged studios and other employers of adult industry personnel to "treat your staff like they are employees, offer them the benefits, give them accessibility to state disability in California; make sure they have a place where they can go to say, 'Hey, I'm having a baby; can someone help me navigate through how do I keep my job and how do I grow my family?'" She also delved into the possibility of employers offering 401(K) savings accounts to employees. "I would just add that there's nothing you can do if you haven't done it for the last four years; you're on the hook," Sperlein stated. "But there is something you can do: Treat your employees right, treat them well, because the Labor Board has limited resources and it's essentially complaint-driven, and it's always a disgruntled employee that triggers an investigation." Fattorosi also suggested creating an employment agreement, in which can be included an arbitration provision which may contain a waiver of class action status. "As an employee, they can head a class action against you and they can file  lawsuit in court," he noted. "If they sign an arbitration agreement in an employment agreement, well, you may have to pay for the arbitration—in California, that's the rule—but they will be excluded from being able to join a class-action lawsuit against you. That's where the big money is. That's where the plaintiffs' bar wants to go after people, they can get them on a class-action basis." When it came time for questions, Melissa Prudhoe, an attorney from the group Decriminalize Sex Work, noted that her group is working with marijuana legalization activists to "follow their playbook ... and we are currently working in New York, New Hampshire, Rhode Island, Vermont, possibly Colorado, possibly D.C., so there is a growing movement happening." Sperlein added that much of the question of sex work legalization revolves around taxes, "and when you start talking about tax revenue, all of a sudden you've got people on the Right that might be on your side." This was further discussed. The next question came from Elizabeth Nolan Brown, a writer for the libertarian magazine Reason, which, she said, has been advocating for sex work decriminalization since the 1970s. She asked if there was any real concern that the federal government would again be attempting to crack down on sexually explicit content. "It's something we need to be concerned about," Gelbard quickly replied. "There hasn't been a major obscenity prosecution in this country since 2010; that was the Evil Angel case. We tried that case and we won. Any time a conservative politician starts thinking they're going to lose the right-wing base, they start looking, 'Where can we go that isn't going to really hurt our interests?', and pornography is usually pretty high on that list." Gelbard noted, however, that Trump's hotels offer porn on their pay-per-view systems, and if one of the movies they offer were to be charged, that would create an interesting situation. He also opined that the public's attitude toward explicit content has changed since the current obscenity standard, Miller v. California, was decided in 1973. "Today, with the internet and all the different ways to receive adult entertainment, you have no idea what your next-door neighbor is watching, let alone what your partner is watching," he added, "so the idea that the populace knows what's out there is ludicrous. I think it's unlikely there would be a conviction on obscenity anywhere in this country today." And on that hopeful note, the seminar ended.