So now that you own this adult content, and you’ve produced it in compliance with federal recordkeeping law, and you’ve registered it with the Copyright Office, surely it must be lawful to own or distribute it. Sorry, no one can tell you that for sure. Obscenity laws still exist in all 50 jurisdictions of the United States, and obscenity prosecutions are still routinely brought against video and adult store owners, claiming that widely circulated titles are disgusting examples of abominable filth. When George W. Bush took office, many predicted that John Ashcroft would declare a jihad on pornography. Indeed, he said a few things that suggested he was inclined in that direction.

However, for the moment the holy war against exposing human skin to private view has not materialized, and consumers are continuing to purchase adult content at an accelerating pace. It may be that law will eventually catch up with social mores, enabling those who enjoy viewing naked bodies to pursue these aesthetic activities without fear of prosecution.

Obscenity is defined as material that “appeals primarily to the prurient interest,” that is “patently offensive to contemporary community standards of the relevant community,” and that is entirely without “artistic or social value.” Thus, in some areas of the United States, juries have acquitted the producers and distributors of visual works that depict sexual activity of the most intimate sort. On the other hand, there will continue to be jurisdictions, under this rule, able to convict people for selling adult content that would appear to be relatively “soft-core.” Where juries draw that line differs from community to community.

Additionally, there is a federal law you should be aware of 47 USC Section 231, that forbids the distribution over the Internet of “matter” that would be “harmful” to children. The law has a provisions for a “safe harbor” that is easily complied with — it’s okay to allow access to anyone who proffers a credit card as proof of age.

What about stuff coming out of left field? Could you be prosecuted in Utah for operating a website from California that has subscribers in Salt Lake City? More than likely, yes. While different cases always present different circumstances, and one size does not fit all when describing issues of what is called “long arm jurisdiction” over criminal defendants, California website operators could be extradited to the land of the Great Salt Lake if Utah filed felony charges against them.

Many attorneys have tried to provide some kind of yardstick concerning what is hardcore, softcore, acceptable, or very likely to be found obscene. I’m not going to try. Justice Stewart Potter said about obscenity, “I know it when I see it.” This is the reaction most people have. Obscenity prosecutors looking for targets will focus on the “most disgusting” examples of pornography available, because those will fuel jury outrage and press notoriety. Common sense tells you that, to the extent you want to keep your risk low, you will produce and distribute content that doesn’t go much beyond what is available at the local newsstand.

So that’s the Island of the Sirens. Those who go there should plan on exercising as much discipline as Odysseus. Running a content production operation in a manner that is respectful of the models, careful of the requirements of law, and supported with all necessary legal agreements and recordkeeping, you may be able to enjoy the sirens’ song and avoid crashing on the rocks.