Hard-Core Advocates
California Lawyer

L.A. Law Now Requires Condoms in Porn Films

February 15, 2012

Tommy Gunn and Luscious Lopez, as well as other porn film performers, must now wear condoms if they shoot films in the City of Los Angeles, according to an ordinance passed by the city council and signed into law by Mayor Antonio Villaraigosa in January.

The first of its kind in the nation, the ordinance affects L.A.'s San Fernando Valley, the capital of the multibillion-dollar porn industry. Porn film producers oppose the law, claiming that adult performances that use condoms do not market as well as unprotected sex.

The ordinance doesn't apply to film shoots in certified sound stages that don't require permits. For now, porn film studios, which often use private homes in San Fernando Valley, can choose to film in the county's other 87 cities or in its unincorporated parts.

A pro-condom initiative got on the ballot for a special election in June but the City Council, certain of voter approval for the measure, passed the ordinance to avoid spending $4 million on the special vote.

AIDS prevention groups are gathering signatures to put a countywide measure on the ballot for November, but they also want to put pressure on the L.A. County Board of Supervisors to pass its own law mandating condom use in the adult film industry.

Hard-Core Advocates

The Lawyers Behind California’s MultiBillion-dollar X-rated industry

December 2009

From left, Allan Gelbard, Greg Piccionelli, and Michael Fattorosi on set in the San Fernando Valley. Photo by Linda Ford

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Beside a hotel swimming pool filled with two dozen scantily clad pornstars, a silicone-enhanced blonde arches her back, swivels her head, and extends her buttocks toward a crouching cameraman. The photographer snaps a few shots, but no one else seems to notice. Shooting content in public is so commonplace these days that it's almost de rigueur at porn trade shows like this one: the Xbiz Summer Forum, held every year at the Hard Rock Hotel and Casino in Las Vegas. Here, in the desert heat, 400-plus attendees mix the business of pleasure with the pleasure of doing business, and only one group is likely to skip the party altogether: the lawyers.

It's 10 a.m. and a handful of them are hidden away from the commercial carnality in a tiny, air-conditioned, hotel conference room with a hundred or so industry "suits." The suits come casually dressed in shorts, flip-flops, and loose-fitting shirts. All of them, however, have their laptops open.

Like a schoolteacher managing a noisy class of seventh graders, attorney Greg Piccionelli?who actually is wearing a suit?takes center stage to introduce the session's featured speaker: Federal Trade Commission lawyer Stephen Cohen.

It took Piccionelli months to get the FTC to send one of its own to this event. Meanwhile, industry insiders wondered aloud what Piccionelli thought he was doing. One webmaster speculated that he had "lost his mind." Another wag complained that he had "betrayed porn." Still another observed: "Piccionelli is bringing the wolf into a den of retarded sheep."

Now, to the amusement of the attendees, Piccionelli recounts these comments with a practiced smile. He then turns the proceedings over to Cohen?a slight, affable man who doesn't look very wolflike at all.

I've been covering the business of porn for the past four years, as a freelancer and before that as a staff writer for Xbiz?one of the industry's two trade publications. To call it a strange beat would be an understatement. My Rolodex includes Internet millionaires, celebrity-sex-tape brokers, bondage freaks, shady producers, and, yes, porn stars. But mostly I talk with lawyers about intellectual property disputes, bankruptcies, obscenity trials, and the like. So naturally I wondered what a government lawyer would say to a bunch of pornographers.

Turns out, he was rather congenial. Porn is a legitimate business, Cohen repeatedly told the crowd. In fact, he said, "We treat adult entertainment just like any other industry." The FTC is concerned only with illegal marketing tactics, he added: Abide by the law, and you'll have no quarrel with the federal government.

This should have been music to the ears of the people in that room. But I later discovered that many of them were less than reassured. As one producer told me, "The government will always make an example out of porn. It's just too easy not to."

These are curious times for the porn industry?an industry that reportedly grossed $13 billion last year, yet, oddly enough, seems to be in serious trouble. For the established studios, the most immediate threat is Internet piracy. According to industry lawyers, such piracy costs "content providers" billions of dollars a year. Worker safety also is now of greater concern?especially since June when a Southern California performer tested positive for HIV. And for all the talk about the ubiquity of porn and how much it's become a part of the mainstream culture, every so often producers still get hauled into court on obscenity charges. And when that happens, it reminds pornographers that even in the age of the Internet they are still vulnerable to an old-fashioned crackdown.

All of this makes porn a tough business to work in?not just for the performers and producers, but also for the roughly four dozen lawyers, mostly California-based, who regularly represent their interests. Overwhelmingly white, male, and middle-aged, these lawyers are a smart, close-knit lot whose clients have no shortage of problems.

"You have to understand where this industry is coming from," Piccionelli tells me. "The government, specifically the FBI, was always seen as the enemy, and not too long ago people in the industry didn't go to court when there was a business dispute; they might solve it with what you could call an extrajudicial remedy, usually involving a baseball bat."

A graduate of Loyola Law School in Los Angeles, Piccionelli, 55, didn't intend to spend his whole career representing porn studios. But in 1992, soon after passing the bar, he joined an L.A. boutique that did this kind of work, and he found the legal issues he encountered there "seductive." Four years later he struck out on his own.

One recent afternoon I sat with him in a conference room in his Westlake Village office, just a ten-minute drive from the San Fernando Valley?the porn capital of the world. As Piccionelli sips his coffee, he observes that if I had the right iPhone application I could get rid of my tape recorder. This makes me think to ask him whether at heart he's just another tech geek who happens to do business with pornographers.

"I probably read TechCrunch and CNET just as much as I read the adult trades," he grins. In fact, Piccionelli insists that there's a solid nexus between Silicon Valley technology and San Fernando Valley content. He also insists that if the porn industry is to remain profitable, it will have to build on that relationship.

Porn's influence on technology is well known. Back in the 1980s, for example, VHS video recorders got a big boost over competing Betamax machines because porn makers overwhelmingly gravitated to the VHS format. Pornographers, of course, contributed to the explosive growth of the Internet. And they helped pioneer early electronic payment systems and affiliate-marketing models. Under these models, affiliates provide free porn clips on the Internet in the hope of enticing viewers to join pay sites. The affiliates in turn get a cut of the revenue. But the system only works if the affiliates can accurately track the subscriptions they generate, and this became possible with software that the porn industry developed. (Today, such online retail giants as Amazon.com use the same approach.)

Looking ahead, Piccionelli sees a big market for so-called smart sex toys. These are erotic devices programmed to gyrate in conjunction with a video played over the Web. For porn companies trying to maximize the value of their content, the beauty of this technology is that, for the sex toys to work properly, consumers are forced to buy a specific movie or pay to access a specific website. Piccionelli had assumed it would be an easy sell. However, five years passed before he was able to broker a deal between a patent portfolio company and the Adult Entertainment Broadcast Network, a North Carolina?based distributor.

"I had a lot of informal conversations with all the big players about next-generation technologies that would revolutionize the viewing experience," Piccionelli says. "I thought it would be a quick deal. Boy, was I wrong."

The San Fernando Valley identifies strongly not only with Silicon Valley, but also with Hollywood. "I talk to [Hollywood] studio lawyers all the time about piracy," says attorney Allan Gelbard, who works for industry clients out of a tiny Encino suite, high above Ventura Boulevard. "We're in the same boat because infringement is something neither of us can keep up with."

When I ask Gelbard if he spends all of his time surfing the Web looking for purloined porn, he chuckles. Then he pulls up a porn "tube" site on his computer to show me what his clients are up against. Like the original YouTube, the porn tube sites now online allow anyone in the world to upload content. Trouble is, only a fraction of those uploads aren't stolen.

A tube site, Gelbard explains, may have several thousand clips, but licensing rights are never displayed, and contact information for the site's operators often is very hard to come by. Moreover, there are already hundreds of porn tube sites to keep track of, and new ones keep popping up all the time.

When a client thinks intellectual property has been ripped off, Gelbard scours the suspected site for unauthorized content. He then documents the infraction by taking screen grabs, identifies the site operators, and sets about drafting an appropriate letter.

It's a cat-and-mouse game between the lawyers and the video pirates, and usually the pirates are too smart to steal a content provider's entire catalogue, which is a much easier theft to detect. Consequently, to do his job right, Gelbard sometimes has to watch more Internet porn in a single week than most frat boys do in an entire year. However, as a former cameraman and film editor for Adam Glasser (better known by his nom de porn, Seymore Butts), Gelbard is hardly fazed.

"I stumbled into the law by accident," he confides. "I was filming in Nevada in 1991 at the Pure Pleasure bookstore when we got raided. The cops let me go, but they confiscated my camera. They said it was for evidence, but I think it was just to piss me off. I could understand them keeping the tapes, but the camera? They didn't need that."

When Gelbard found out that the cost of hiring a lawyer would exceed the value of his camera by several hundred dollars, he had an epiphany. "I felt I needed to learn the law; the plan was to be a pornographer with a law license," he says. "That didn't happen. The law won."

Low-key and casual wearing jeans and an open shirt, Gelbard, 52, hardly comes across as a high-powered litigator. But in 2007 he won a record-breaking judgment. His client was a studio called Evil Angel, which sued Kaytel Video Distribution and several other distributors for smuggling Canadian bootleg DVDs into the American retail market.

Gelbard knew he had a strong case, but he still wasn't confident of the outcome. "You never know what a jury is going to do," he reflects. "That's a concern for any lawyer, but it's a little different with porn. ... You try to vet the jurors to make sure they're comfortable with adult material, but people will say they are comfortable, then see something that maybe they haven't seen before, and they aren't able to put it aside and focus on the facts."

At trial, Gelbard tried to walk a fine line. On the one hand he wanted to spare the jury a lot of graphic detail. On the other, he didn't want to give anyone the idea that he was in any way ashamed of his client. However, once the judge ruled that the jurors needed to actually watch the films, all bets were off.

"You could clearly see that one movie was of lesser quality," Gelbard recalls, "and it was obvious that it had been pirated. But the movie was wall-to-wall sex, very hard-core stuff that went on for a while, and it was pretty clear that some of the jurors weren't comfortable with what they were watching."

Still, when it came time to render a judgment, the jurors stayed focused enough to award Gelbard's client $11.2 million. (Later, the judge reduced the award to $5 million.)

Did the verdict bring the industry any closer to solving its piracy problems? Gelbard thinks not. "It costs a lot of money to fight piracy," he observes, "and we can only catch a handful of offenders." So, more often than not, all Gelbard can accomplish is to have takedown notices issued under the Digital Millennium Copyright Act. These notices at least force pirates to remove what they've stolen and posted on the Internet?but they don't provide a dime's worth of damages.

The threat of piracy isn't the only thing that keeps pornographers awake at night. This became clear six months ago when an unnamed female performer tested positive for HIV.

In response, the Adult Industry Medical Healthcare Foundation, a San Fernando Valley clinic that caters to porn performers, swiftly contacted everyone in its database who'd had sex with the infected actor, as well as those linked by second- or third-degree contacts. Meanwhile, the industry itself moved quickly to quarantine performers thought to be at risk of spreading the virus. At this writing, no new cases within the industry have been reported. However, at the height of the scare, a story appeared in the Los Angeles Times indicating that as many as 22 performers have tested positive for HIV over the past five years. Then, about a month after that article ran, a community-based medical provider sued the county of Los Angeles for not adequately protecting performers and their sex partners in the public at large from the risk of infection (AIDS Healthcare Foundation v. Los Angeles County, Dept. of Pub. Health, Los Angeles Super. Ct. No. BS12665 (filed July 16, 2009)).

"Unfortunately, but predictably, the practices of the hard-core pornography industry in Los Angeles County [have] led to recurrent outbreaks of sexually transmitted diseases," the complaint declared. It also accused the Department of Public Health of violating state law by failing to properly investigate all cases of venereal disease infection and failing to take all reasonable measures to prevent the spread of STDs?including the imposition of a mandatory condom rule at all porn shoots. This in turn put the county in the terribly awkward position of having to go to court and defend its?and, by extension, the industry's?laissez-faire attitude toward condoms.

Does this portend a huge court fight that pits the First Amendment rights of studios against the safety of 1,200 performers? Industry lawyers are plenty squeamish about the prospect. However, as attorney Michael Fattorosi observes, HIV/AIDS is only one of a number of health-related issues that the industry faces.

"When is the industry going to [provide] health care and workers comp for its performers?" asks Fattorosi, a Woodland Hills?based attorney who represents porn stars. "What happens if a performer slips and falls on the set?" he adds, noting that few producers spend the money for such insurance because they assume that their performers are independent contractors under California labor law. "Or what if a performer contracts HIV because the producer was negligent and failed to check whether everyone had been tested? A few companies take these issues seriously. But many just don't think about the business and legal repercussions if something goes wrong."

In his six years as an adult-entertainment lawyer, Fattorosi has represented women with such stage names as Flower Tucci, Gianna Michaels, Devinn Lane, and Joanna Angel. He also takes time every year to lobby legislators in Sacramento about free-speech issues. Meanwhile, in his personal life, Fattorosi has been in a serious, three-year relationship with a porn star who goes by the name of Vanessa Blue.

When I ask Fattorosi whether he finds it difficult to represent performers at the same time he's dating one, he responds that it actually helps. "I think it gives me more empathy for the talent," he says. "I know where they're coming from."

Tall, blond, and tanned, Fattorosi, 40, looks like a man who'd sooner be at a party than in a courtroom. Once, early in his career, a few friends asked him for help to start a porn studio. When that idea fizzled, he decided instead to advise performers.

"A girl will make a lot of mistakes her first year in the business," he tells me. "But if she starts taking her career seriously, she'll begin to think more about her health and safety, and she'll realize that her name has real value?and that she's not getting a lot of that value. That's when she typically comes to me."

For women who work in front of the camera, the economics of porn can be especially brutal: Just one year into an aspiring porn star's career, the loss of novelty means her earning capacity is likely to decline by as much as 20 percent, unless she hits it big. Meanwhile, unscrupulous operators will often launch websites that poach from a performer's fan base, long before she gets around to starting her own site.

Fattorosi says he tries to help his clients take a more "holistic" approach to their careers. "Only about 15 percent of the performers in the business are really stars," he says. "When you get to that level, a lot of issues come into play for the talent, and they're often interrelated. It's a business for these girls at that point, but they don't always get that right away. They need to think about their long-term health, and they need to think about their money. But mostly they need to think about starting their own business to make the most of their brand."

Fattorosi is still describing these harsh realities when one of his clients drops by. She is a short, brown-skinned woman with thick glasses who goes by the name of Eva Angelina. She is 24 years old, and in her arms she is holding her six-month-old daughter.

Fattorosi gives Angelina a friendly peck on the cheek, then makes a big fuss over the infant. As he continues to entertain the child, Angelina tells me about the website and production company she has recently launched. The ventures, she says, will do two important things for her: guarantee her a larger share of the profits, and allow her to choose who she performs with. "There are just a lot of people you don't want to work with," she explains. "Either they're unpleasant or dirty, or they're too big or too rough."

"Why not have your lawyer draft a rider clause in your contract?" I suggest.

"That's not how porn works," Fattorosi interjects. "Shoots are sometimes booked day-of, and performer agreements usually specify a dollar amount." (Women performers usually get somewhere between $700 and $1,200 for a male-female sex scene, while men typically get half as much.) "That means the best way for a performer to take control of her intellectual property rights and address her health and safety concerns is to own the studio," he says. "That way, she sets the rules."

After almost seven years in the business, that's what Angelina is setting out to do. But as she is likely to discover, the life of a studio owner comes with its own share of headaches.

Talk to any attorney who works in porn, and sooner or later the topic of obscenity is bound to come up. Obscenity convictions can mean serious jail time, severe fines, and forfeiture of personal assets. In Florida last year a website owner named Clinton Raymond McCowen, along with three others, avoided obscenity and prostitution charges by pleading guilty to less serious charges that included committing unlawful financial transactions. But McCowen was still sentenced to four years in prison.

More recently, Paul F. Little, better known as Max Hardcore, was sentenced to 46 months in prison for making and distributing hard-core movies. He is now awaiting the outcome of his appeal while serving time in a federal penitentiary near El Paso, Texas.

Apart from the high stakes and harsh penalties, what makes dodging obscenity charges so vexing to lawyers is that no one can say for sure what's legal and what's not. (This is not the case with child pornography, which is illegal by statute and, strictly speaking, turns on the question of age rather than content.) In fact, the best guidance lawyers have at this point comes from a ruling handed down 36 years ago by the U.S. Supreme Court. In Miller v. California (413 U.S. 15 (1973)), Chief Justice Warren Burger promulgated a three-pronged test that asked jurors to apply "contemporary community standards" in determining whether the material in question "appeals to the prurient interest." (See the sidebar "Grappling with Obscenity,") This may have made sense in 1973. But in 2009, with so much media content?including porn?moving online, defining what the relevant community is becomes extremely problematic. Is it the place where the material is produced? (If so, then the San Fernando Valley should have a field day.) Is it the place where people are most likely to be offended? Or, rather than a place, is the community best defined by who logs on?

Before McCowan, the convicted webmaster, cut a deal with prosecutors, his lawyer planned to mount a novel defense. Citing statistics from Google search queries, his attorney intended to show that in Pensacola, Florida (the city closest to McCowen's hometown), Internet users were more likely to search for the word orgy than for apple pie. Just how well that might have gone over at trial is anybody's guess. But if it didn't work, McCowen could have faced as many as 90 years in prison.

These days, the industry is focused on yet another obscenity case, this one filed last year by federal prosecutors in the D.C. federal district court. The defendant: John Stagliano, owner of Evil Angel, the same studio for which Allan Gelbard had won so much money.

As Gelbard describes it, the Stagliano case poses a particularly serious threat to the industry's future because the content in question?which involved lactating women?is more "niche" than extreme. (Within porn circles, there is actually a lively debate going on over whether the industry should distance itself from those who get into trouble by promoting themselves as the makers of the most extreme hard-core films. If Stagliano is convicted, though, it would likely give both producers and distributors a strong incentive to close ranks.)

"I think the judge understands the crux of this case," says Gelbard, who, on behalf of Stagliano, argued for dismissal last year. "These days, you really can't afford to ignore the Internet [and stay in business]. But at the same time, there's no way to comply with every local community standard for obscenity."

IP lawyer Piccionelli agrees that the stakes in the Stagliano case are huge. "If we lose it," he says, "it would call into question our ability to protect our clients' intellectual property. ... [It] could mean that the simple act of registering a copyright or trademark could open up your client to criminal liability." Then, with exasperation, Piccionelli observes: "That's not something your average IP attorney has to worry about."

Not by a long shot. But in the world of porn, even copyright lawyers live on the edge.

Michael Estrin is a freelance writer living in Los Angeles.

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