2257 individual images vs sets

[Ms Naughty]

OK, the other thread is now too long. I don't want to trawl through 17 pages to find this so I'm asking it in a new thread.

The official opinion of the main 2257 thread is that it doesn't matter if a single photo is softcore - or even if the model is fully clothed - because if the photo set is explicit then that means the individual photo must be backed up by documents.

I want to know how people have come to this conclusion. Can you quote me the section of the new ruling that explicitly states this? Yes, I've read the whole thing, yes, we're asking a lawyer, and yes I've read the whole main thread, but it's late and I can't think of which section this conclusion has been drawn from.

The reason I'm asking is that I've gone through the banners we offer and found a number of banners featuring fully clothed models. Surely common sense should dictate that an individual image showing people who aren't even naked is an exempt image - especially when that individual image is used on it's own (e.g. in a banner), without being remotely connected to the rest of the photos in the set?

And I brought it up before, if the DOJ can make comments about images of DVD boxcover being "new images" then surely a banner constitutes the same thing?

I'm just curious to hear how people came to this "one in, all in" popular consensus on the topic.

In going through our existing banners and this is one of three main issues. The others are whether a censored or cropped photo passes the test (which is a similar question) and trying to define "masturbation" and "lascivious exhibition of the genitals".

And then there's the vital question when you're dealing with photos of naked men: If an erection is a no-no, what angle of turgidity is considered safe?

|skyfall| LOL

[mrMagoo]

I've been wondering the same thing about individual photos from a set. I know many won't agree with me but here is what I think, and I'm no lawyer.

If you crop a sexually explicit image it doesn't matter you still need the documents.

However, from my reading, if you use an image that is not sexually explicit, even if there are other images in that set that are, you don't need the documents (as a secondary producer).

I know that many will disagree with me on this but here is the quote from the regulations and my reasoning.

from the new regs:
A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, digitally- or computer- manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, ...

If you only use a non sexually explicit image from a set that has explicit and non-explicit then you haven't published a 'depiction of an actual human being engaged in actual sexually explicit conduct'.

Masturbation vs. exhibition of the genitals is more difficult. I don't have any rule of thumb on this as of yet. Nor do I have any idea about a male erection.

[Ann Omness]

I don't think we'll know the answers to questions like that until they start prosecuting people. Whenever there's any wiggle room, the government interprets things to suit their purpose at the time. They can also change the meaning of the term "explicit" later to better target a webmaster they want. It's probably safest to just document everything. If you interpret things differently than the people who want to shut you down, all the images you DID document don't do you any good at all.

[RawAlex]

Trying to slice things thin "this is this isn't" is a sure way to afoul of the laws.

It's like running on a football field. You only can go out of bounds if you run near the lines. It's a big field, why run at the edge?

Alex

[Ms Naughty]

RawAlex, I'm not trying to "slice things thin". I'm trying to make sense of these stupid goddam regulations in relation to banners. You can't just "document everything" when it comes to banners that affiliates will be using. I don't want to have to hand out a zip file with model IDs for every banner that we offer. That's why I'm sorting through our existing ones and making new ones.

I realise the DOJ are a pack of bastards but it's still perfectly reasonable to think that an individual image featuring people wearing clothes would exempt. Would the DOJ be THAT insane that they'd go after webmasters who have banners with no nudity on them?

Mr Magoo, thanks for quoting the section for me.
"a visual depiction of an actual human being engaged in actual sexually explicit conduct, ..." is the relevant phrase, it seems. They are talking about images in the singular, which would suggest that a single image of people without nudity would be exempt, regardless of what else went on in that set.

Obviously I'll get a proper legal opinion about this.

[Ms Naughty]

Ah, now I read the monster thread I see this issue has been discussed there since I posted my original question (on pages 17 and 18 if you're looking for the exact bit).

So... it essentially comes down to an interpretation of the document as to whether the rules are talking about "depiction" or "depictions". Great, just great.

This new set of rules definitely need to be tested in court, and I suspect that first court case will be long and drawn out.

In the meantime, I'm going to be making more banners with all my pre 1995 content.