By Brooks Boliek WASHINGTON (Hollywood Reporter) - Tucked deep inside a massive bill designed to track sex offenders and prevent children from being victimized by sex crimes is language that could put many Hollywood movies in the same category as hard-core, X-rated films.
The provision added to the Children's Safety Act of 2005 would require any film, TV show or digital image that contains a sex scene to come under the same government filing requirements that adult films must meet.
Currently, any filmed sexual activity requires an affidavit that lists the names and ages of the actors who engage in the act. The film is required to have a video label that claims compliance with the law and lists where the custodian of the records can be found. The record-keeping requirement is known as Section 2257, for its citation in federal law. Violators could spend five years in jail.
Under the provision inserted into the Children's Safety Act, the definition of sexual activity is expanded to include simulated sex acts like those that appear in many movies and TV shows.
"It's a significant and unprecedented expansion of the scope of the law," one industry executive said. "I don't think the studios would like being grouped in with the hard-core porn industry."
The provision, written by Rep. Mike Pence, R-Ind., could have ramifications beyond simply requiring someone to ensure that the names and ages of actors who partake in pretend lovemaking as compliance with Section 2257 in effect defines a movie or TV show as a pornographic work under federal law. Industry sources say the provision was included in the bill at the behest of the Justice Department. Calls to Pence's office and the Justice Department went unreturned Tuesday.
On Pence's Web site, the congressman contends that the provision is meant to crack down on "so-called 'home pornographers' that use downloading on the Internet and digital and Polaroid photography to essentially create an at-home cottage industry for child pornography."
Industry officials contend that the way the provision is written, a sex scene could trigger the provision even if the actors were clothed. While the language is designed to capture "lascivious exhibition of the genitals," other legal decisions have said that "lascivious exhibition" could occur when the genitals are covered.
The bill, with the Section 2257 provision included, already has been approved by the U.S. House of Representatives and is waiting consideration by the Senate Judiciary Committee.
Industry executives worry that the provision, which is retroactive to 1995, will have a chilling effect on filmmakers. Faced with the choice of filing a 2257 certificate or editing out a scene, a filmmaker might decide it's not worth getting entangled with the federal government and let the scene fall to the cutting-room floor, the executives said.
"From the creative side of the street, there's concern that the government of federal law enforcement would get involved in what you were doing," one industry source said. "At some point, people would be faced with the decision: 'Do I include the scene and register a 2257 or leave it out?' "
In 1988, a similar provision was ruled unconstitutional by the federal court here. Congress later rewrote it so that it included only actual sex acts, not the pretend acts in movies and TV shows.
The 2257 provision also has ramifications beyond the artistic as a federal tax provision designed to stem runaway production is unavailable to anyone required to register a 2257. Many state incentives designed to entice filmmakers to shoot on location also contain similar language.
Industry officials contend that the law is unnecessary. California laws and industry practices protecting children from harm are among the most stringent.
"The California law goes from soup to nuts," one industry executive said. "There's not one shadow of any evidence that the movie industry doesn't protect children."
While the provision is designed to ensure that children aren't abused, its critics say it will do little to stem child sex abuse.
"Guys who are making this stuff don't care about reporting requirements," one source said. "When they're caught, they're looking at 30 years in prison. There's no indication they're going to fill out the paperwork."
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