[ I am making this comment a post because its, extremely well stated and it’s important for porners to understand Thanks BT I am lucky to have people like you commenting here, you are an asset]
OSHA does not have criminal jurisdiction. It takes civil actions. This is similar to the FDA (they can fine you, but they alone can’t put you in jail) or the Federal Trade Commission (again, they can fine you – and fine you a lot – but they don’t bring criminal actions). Only the district attorney at the local level or AG at the state or federal level can bring a criminal action. That’s not to say that OSHA – or the FTC or FDA – can’t refer a matter to criminal investigators. So, OSHA isn’t fining porn talent for not wearing a condom, any more than OSHA would fine a construction worker for not wearing a hard hat. The responsibility is on the employer, not the employee. Failing to get a filming permit in order to fly under the radar is not just wrong, its stupid, because it shows an effort to avoid regulatory requirements. It demonstrates intent. Regulatory agencies really don’t like it when you willfully try to get around regulations.
To the up to six months, here’s why this is bad news for porn, and it goes to something I’ve written dozens of times. The evidence that a producer has violated the regulations in porn is right there on the screen for everyone to see. You put an unsheathed penis in your production, and you’ve just shown the world, including Cal-OSHA, that you’re thumbing your nose at their regulations.
Now, production studios are supposed to maintain a record of their shoots. Half the time, that record number is at the beginning of the scene.
So, does Cal-OSHA – or County of LA – have to invest millions in dick detectives to visit sets? They do not. They need to spend $29.99 a month for a subscription to Brazzers.com. Heck, spend $118, and they can get a 1 year subscription. Once a morning, all you need is someone to look at Brazzers 3 new posts of the day to tell if there’s a condom. Heck, the easy to navigate jump to the action buttons will get them there in less than a minute per video. At 3 violations a day, Brazzers could probably pay a year’s salary of an inspector in a month, and that’s just one site of one production company. This is not rocket science if OSHA or LA County is serious.
10 Responses
Here’s Why The TIM Ruling Is Bad For Porners – Reader Comment http://t.co/c9Y8R170Ln
This is exactly what AHF did with TIM, that is, used the videotape to make the complaing. Mike, maybe you can clear this up. It might be difficult to ascertain where the film was made, and if it was made in Cal-OSHAs jurisdiction.
Not knowing where it was made, could AHF file their complaints with the Federal OSHA? Or,is there someithing in the paperwork of making an adult film that requires the producers to say where the film was made?
Jilted – you’ve just hit on why failing to get a permit is stupid. You’re Cal-Osha. You review a Brazzers scene and see there’s no condom. You go to Brazzers and they say, that wasn’t shot in LA County. OSHA says, OK, show us the film permit. Where was it shot. They say: We don’t know. We didn’t get a film permit (on purpose, no less), which was required of us.
So, now, they’ve opened two cans of worms, and potentially two streams of investigation and fines. They have to maintain a record of who was in the shoot. So, they send an investigator out to interview the producer, the director, the talent, the camera, sound and lighting people, etc. Then, they notify LA County of illegal shoots – if it happened in LA County – and if they want to get nasty, they start an investigation and issue fines.
Instead of getting fined once, they get fined twice. Again, if the authorities care enough to enforce the action.
If you’re a legitimate business, the last thing you want to do is give regulatory and investigatory agencies a reason to go poking around in your business. By refusing to use condoms and now by refusing to get required permits, that’s what porn is doing.
It’s just stupid.
So, does federal OSHA ever enter this equation? Do you think Federal OSHA would ever adopt a similar policy which I guess would then apply to every state in the US? I’m not sure how that works?
I don’t know in this specific case. The way these things typically work, in other agencies, is that things are addressed at the federal level when they aren’t being addressed at the state level, or when there are significant variations in the way they’re being addressed at the state level. The feds set a minimum standard. States can be more restrictive than the feds – and Cal-OSHA is known to be aggressive. States can’t do less than the minimum.
So, could the feds set a national standard? Sure, theoretically. But, this really is a California problem for the most part and not a national problem since Cali is the epicenter for porn production.
This is really whacko – the government spent the last 20 years to get the adult industry to be less transparent – and thereby able to keep a better track on them – until now when the gov’s actions are forcing the opposite to happen and a lot more shooting is now going underground and more clandestine…so much for the last 20 years…
“So, does Cal-OSHA – or County of LA – have to invest millions in dick detectives to visit sets? They do not. They need to spend $29.99 a month for a subscription to Brazzers.com.”
Where do I apply for that job?
Cal OSHA does not nor will it initiate any investigation… They are a state agency who only responds to complaints on employee behalf. The complaint does not need to made by the employee it can be made by anyone with knowledge.
Once there is a complaint file on record OSHA might start looking at productions but would more likely look at production mentioned in complaint. More later when I’m not on phone after dinner
Brooke – you are correct on circumventing Cal-OSHA. If Brazzers doesn’t like the workplace safety standards in California, its free to move its operations to another state with different regulations. Business does this all the time. If Vegas is all for condom-less porn, have at it and put it on your website. Cal-OSHA doesn’t regulate content distribution. Nor does the LA County condom bill. They simply say that if you’re going to produce your content in LA County or California, you gotta wear a condom. In fact, in the Vivid decision, where the judge rejected Vivid’s First Amendment argument, he didn’t say Vivid couldn’t distribute condomless scenes. That probably is a violation of Free Speech. What he said is that it’s not a violation of the First Amendment to require a condom to protect the health of workers.
Jilted – as a practical matter, you’re probably right that Cal-Osha is only going to respond to a complaint. OSHA does inspect big plants and distribution centers, but its probably got better things to do than lurk around LA looking for rogue porn sets. However, the important point of the ruling is that OSHA has decided they don’t have to catch you in the act. They’ll respond after the fact. In that case, AHF, a disgruntled flunky or just a concerned citizen could start downloading scenes and file complaints with Cal-OSHA. If Cal-OSHA has said it will consider a complaint up to 6 months after the fact, I suppose production companies could hold back their scenes for 6 months and a day. All I’m really getting at with the Brazzer’s analogy is that getting evidence of an OSHA violation isn’t rocket science if the scene was filmed in California. Most violators try to hide their violations. The porn industry films its violations for the whole world to see.
@BT
The first amendment rulings applied to the right to “creative freedom of expression” the big deal is that in many ways this and other rulings seem to thwart that right if looked at without respect to the process requiring a workplace environment to actually create the product. The workplace rulings have not one iota to do with the right to distribute condom free productions nor will that can of worms be considered beyond the “right of individuals” vs the “duties of an entity” to affirm that individuals will still be free to assemble and film the same content condom free while entities must comply with the 1992 Federal BloodBorne Pathogen regulations.
The rock and hard place is that industry entities are exposed to competition for revenues by individuals who have more freedoms and protections via the Constitution. The right of individuals has been used by the industry in 2257 cases to limit the over broad and reaching enforcement potential. The industry put forward the individual rights of some guys private residence being violated to show cause why the entire policy was unconstitutional, the rulings indicate that private residences still have protections from entry without cause yet the 2257 is still valid regardless of filming venue. There was another cool case where a magazine argued the individuals rights but lost because the magazine was an entity that created the limitations they were arguing against.
Taking all these industry facet rulings along with recent events it’s easy to see that 2013 was a pivotal game changer for porn. The blurred lines between individual rights and industry regulatory requirements have become much more defined leaving less wiggle room. Porn painted itself into a corner as an industry by arguing individual rights applied to the fiscal entities they sought to protect. It seems filming the violations for world to see is less of an issue than the fact that “violations” are now more clearly defined leaving less leeway for legal loopholes.