The Legal Barriers to Enforcing Pornography Contracts

Pornography industry has under gone rapid proliferation over the time. The economic realities of this industry have necessitated the need to address various contractual aspects governing this industry so that the financial and legal interests of various role players are protected and furthered. Like any other large industry, the adult entertainment industry requires the protection of the judicial system in order to ensure that the tremendous financial value invested into its business is not sacrificed as a result of broken promises, faulty expectations, or criminal sanctions.

The murky aspect of the commodity on sale ie ‘sexual performance on camera’ has been subject of universal condemnation. Such sexual indulgence is considered as a social deviance and would encourage ills such as prostitutions and extra martial social encounter. This has created a barrier to legal sanctions of the industrial practice.

This paper is an attempt to address legal barriers in recognition and enforcement of pornography contracts. The purpose is not to make a normative argument against enforceability but to outline the irreconcilability of the enforcement of adult film contracts and how can it be resolved.

Various doctrines such as public policy prohibitions on contractual sexual exchanges stand as roadblocks to contractual enforceability of adult entertainment contract and address various the points of conflict that arises in its enforcement. In order to preserve the contractual framework for unmarried cohabitation and respect extensive precedent prohibiting sexual consideration, courts must be willing to trumpet a countervailing public policy favouring the enforcement of adult film contracts. Enforcement of such contracts will require the court to carve out substantial exception in light of existing laws that makes these contracts void on the ground of public policy. If the state is willing to recognize the adult entertainment industry as a legitimate, non-criminal entity, there would seem to be a strong public policy in favour of allowing individuals in this industry to have recourse to the same legal protections as are available in any other.

If such agreements are not enforceable, an industry of immense economic value must be legally sacrificed for the sake of doctrinal consistency. In the absence of enforceability, an industry providing significant financial benefit to the state and its citizens would be alienated from the legal system, and concerns over coercion and abuse in the industry would be exacerbated by the inability of performers to protect their monetary and corporal interests.

In the end, some suggestions are advanced as potential resolutions to the problem of enforceability. In order to shield industry contracting from criminal prohibition without obliterating any meaningful utility of prostitution statutes, courts must be able to distinguish convincingly pornography from prostitution in a manner that takes into account their differing relationships to disease, drugs, and violence. An effective differentiation would both enable courts to justify their statutory applications as upholding the governmental interests behind the criminalization of prostitution, and furthermore, allow them to enforce these interests without creating substantially counterproductive statutory loopholes.

Over the past thirty years, the adult entertainment industry has rapidly evolved from a small underground industry into a mainstream industrial monolith.

In the mid-1970s, a federal study estimated the total retail value of all hardcore pornography to be between $ 5-10 million in the United States. [1] By contrast, current estimates of industry revenues have skyrocketed to somewhere in the range of $ 4-12 billion. [2] This is roughly equivalent to the amount spent on professional sporting events, music, or the mainstream box office. [3] Technological innovations have made production and distribution of pornography contents easier and quicker with privacy and anonymity.

Contracts in the adult film industry can be highly appealing to all parties, as they can both serve the long-term business needs of producers and protect often-vulnerable performers from both financial and physical mistreatment. Logistical nightmares are common in adult filmmaking, as screenplays fail to arrive and performers often do not show up on the set, [4] and contractual commitments provide producers greater predictability in the production process. For the performers, contracts can potentially help prevent the physical and psychological dangers that pornography opponents have insisted are inherent in adult film production. [5] Contracts in the adult entertainment industry can ensure that performers are not coerced into engaging in sexual acts to which they have not previously consented by stating the scope and duration of their performance before filming commences. [6] Furthermore, contracts can give greater assurance that actors at the very least will be compensated for these performances. Contracts in the adult film industry thus have the potential to mitigate risks undertaken by all parties to production.

However, despite increased contractual employment, the surprising absence of any written court opinion addressing the issue of enforceability has substantially diminished the practical effectiveness of industry contracts. There are two potential reasons for this absence. First, the legal system and the adult film industry have historically been extremely hostile towards one another and there is a general distrust of the legal process that may accordingly dissuade legal action. [7] Second, despite the potential ability of contracts to alleviate economic uncertainty and sexual coercion, the industry generally has been skeptical of the enforceability of its own contracts.

As distrust and scepticism have prevented judicial clarification of contract enforceability, the perceived inability of both producers and performers to challenge unfulfilled promises has correspondingly persisted. Thus, it would seem that as perceived unenforceability furthers judicial reticence, judicial reticence reciprocally furthers perceptions of unenforceability, leaving an unstable field of legal obligations despite the existence of industry contracts. Without judicial guidance, parties to a contract whose enforceability is uncertain are left unable to discern reasonably the permissibility of breach or the availability of legal redress. Although there is a general recognition of the potential benefits of contractual employment, [8] the lack of judicial attention and the accompanying legal unpredictability have undermined the ability of contracts to provide the benefits they promise.

Nevertheless, litigation over contractual disputes is beginning to arise, and courts must inevitably address the difficult question of enforceability.

Without contractual protections, the scope of sexual performance remains largely at the whim of directors, and coercion to perform undesired sexual acts would be facilitated by the lack of any assurance of payment absent submission to the director’s demands. The inability of either performers or filmmakers to enforce their contractual relations would have significantly detrimental ramifications for all facets of the adult entertainment industry as well as the economic vitality of States.

If courts desire to avoid the consequences of refusing to enforce adult film contracts, they cannot do so without substantially altering existing law. Next Part of the paper reflects upon the specific roadblocks to enforceability presented by the current state of contract doctrine.

As contracts in the expanding adult film industry become increasingly utilized and contractual disputes edge into the purview of courts, courts must inevitably confront the limitations of governing precedent.

The law governing the rights of pornography participants is confused, and few women manage to recover some of their dignity through the legal process. In general, the legal process governing pornography contract is vague. The tenets on which a contract for pornography is tested is vague and looms in favour of public policy and a general conception that such contracts must not be recognize and that the participants of such contracts have neither right to enter or any remedy for the frustration of the contracts.

This makes extention of protection of law to such participants difficult. It must be realized that

there are many instances where women complain of being drugged, being coerced, and being offered money for sex by pornographers [9] . Many of the women who complain are not legally adults, which should give one pause in automatically assuming their culpability [10] .

The Beer Defense

There is yet another instance where enforcement of pornography contract can be avoided. Popularly known as beer defense, this aspect, almost universal to cases involving reality porn, is the presence of alcohol [11] . In theory, those who contract while seriously intoxicated may annul or ratify their contracts as minors can, but the law often puts more hurdles in their way. Any delay in disaffirming a contract entered into when inebriated may be enough to defeat the claim [12] , especially if the facts quickly come to light [13] . Additionally, any action that affirms the existence of the contract will make it valid [14] . However there are instances where courts have allowed the drunk to void their contracts, “the drunkenness must have been such as to have drowned reason, memory, and judgment, and to have impaired the mental faculties to such an extent as to render the party non compos mentis for the time being.” [15] Further, some courts require further that if one is not induced to intoxication by the party one contract with, it must be obvious that one is inebriated [16] . English common law held that voluntary intoxication was not a defense to a contract action, and few modern courts have accepted it when pled [17] . It is only the significant solicitation and harassment of one who is inebriated makes a contract voidable [18] , which is suggested by inadequate consideration [19] .Even when one looks back at a videotape and wonders “what possessed me to do such a thing,” the standard is hard to fulfill. [20]

When it is accepted as a defense, intoxication renders a contract voidable. The reasoning is not that there is some impropriety in contracting while intoxicated, but that one has no control over one’s actions [21] . The intoxicated party must be more than just seriously affected by the alcohol; he must be unable to understand the transaction at the time of contracting [22] . If one is aware of what is going on when an agreement is made, then one is not sufficiently intoxicated to avoid the contract. The stringent requirements of intoxication make it very difficult for a party who signs a release to get out of a contract. If one has enough cognitive ability to make the connection between signing the release, being captured by the camera, and in some cases receiving a T-shirt for one’s trouble, one is not inebriated enough to void the contract [23] . However, in a faster, less formal exchange, this issue may be disputed.

Hence, it may still pose a difficult challenge to prove in the court of law that the intoxication was self induced and was to the extent that it impaired mental faculties of the party which takes it as a defence.

The consequence of a successful defense of intoxication is that the contract will be termed as void.

If a claimant successfully obtains a judgment that the contract is void, it is as if the contract never existed and the courts usually favor any exchange made to be reversed. If the exchange is not reversed, the party who had an interest in the contract may sue.

In pornography contracts, a rescission is far less desirable to the pornographer than the photographed party. The pornographer has to return all tangible and intangible goods received a s a consideration and also all rights to the image. Furthermore, if a court feels that an extended delay has financially harmed the non-rescinding party, the court may not allow for full restitution. The court might also use its powers in equity to require no restitution on the part of a minor or intoxicated person if the court deems it just [24] .

Let’s pause here and think of the damage in today’s time of advanced media and wide internet usages. Calculation of damages and determining real and future loss will always remain a challenge. As many of these cases come forth once the videos are in circulation [25] , this argument may be too late. It may behoove anyone who can reasonably claim contractual inability due to infancy or intoxication, to file a declaratory judgment against the pornographers most likely to have been photographing to prevent dissemination of one’s image. There is no requirement that a pornographer once he has returned the right to one’s image to an individual, needs to disgorge his profits.

Courts are willing to return property taken from a minor by fraud without making the deceiver pay interest. [26] However, to avoid a contract is to forgo a suit for damages resulting from the contract; to do so would be to affirm the contract [27] . This again is a contradiction that emerges from non recognition of pornography contracts.

For contracts in the adult film industry to be enforceable, they must overcome the substantial obstacles posed by the contractual doctrines of illegality and public policy. Although these doctrines were developed in the common law, the principle finds its reiteration in many legal system. These statutes provide that a contract without a “lawful object” [28] n41 is void and unenforceable in its entirety. [29]

The ability for an adult film contract to avoid the prohibitions of express law requires tenuous, counterproductive interpretations of prostitution and pandering statutes. In their attempts to mediate the competing interests of prohibiting prostitution and protecting adult filmmaking, courts have failed to draw meaningful and enforceable distinctions between the two practices. First, they flawed by allowing prostitution to be masked from criminal scrutiny by conflating monetary exchange with the expressive act of filmmaking. Second, their misunderstanding of the pervasiveness of sexual gratification in the adult film industry provides no useful guidance for a filmmaker attempting to hire performers in good faith compliance with express law. Lastly, the touching requirement permits filmmakers to easily circumvent express laws and, moreover, provides all individuals with a safe harbor from prosecution under the prostitution statutes. While this framework does provide space for contractual enforceability under express law, it only does so by significantly undermining the legislative interest in preventing prostitution both outside and within the adult film industry.

The principle that contracts with some implication of prostitution are unenforceable on public policy grounds has received broad support both in courts and in contract jurisprudence nationwide [30] . n81 Indeed, a well-known tenet of contract jurisprudence is that contracts are unenforceable to the extent they rest upon sexual consideration because such contracts involve the type of prohibited economic sexual exchange underlying the statutory ban on prostitution [31] . n82 The explicitly sexual nature of the consideration in adult film contracts would certainly be subject to the scrutiny of this contractual principle, and courts’ willingness to invalidate contracts with a far more attenuated link to prostitution creates a possibly insurmountable obstacle for the enforceability of adult film contracts.

The invalidation of contracts based on sexual consideration has deep roots in American jurisprudence. For centuries, American courts have made clear that there is a strong public policy interest in discouraging contracts for sexual relations, and parties continuously have been prohibited from trading sexual services in exchange for contractual promises. [32] As early as 1810, the Supreme Judicial Court of Massachusetts refused to enforce a contract for a prostitute’s wages, as “the consideration is confessedly immoral, and a judgment in support of it would be pernicious from its example.” [33] n84 Similarly, a South Carolina court in 1818 affirmed that “[t]he law will not permit a woman to make her virtue an [*558] article of merchandise. Such gross indecency and immorality contaminates the very source and foundation of the contract, and renders it void from the beginning.” [34] n85 By the twentieth century, these principles crystallized in the Restatement (First) of Contracts, which provided that “a bargain in whole or in part for or in consideration of illicit sexual intercourse or of a promise thereof is illegal.” [35] n86 Modern cases have consistently invoked this principle, refusing to enforce contracts to the extent that they rest upon such sexual consideration. n87 A Delaware Supreme Court decision is particularly instructive in this context because it involves the use of sexual consideration in the employment context. In Siple v. Corbett, n88 the plaintiff had been fired from his corporate office by the defendant, with whom he had been sexually involved. n89 In refusing to provide recovery for breach of the employment contract, the court stated:

To the extent that plaintiff’s complaint could be construed as an action for breach of a contract for employment and compensation in exchange for renewed romantic involvement including sexual favors, the Court of Chancery properly denied relief. Contracts founded upon consideration for romantic involvement including sexual favors are void as against public policy and unenforceable by the courts. n90

Thus, Siple reflects the longstanding and well-developed principle of contract law that sexual consideration may not form the basis for contractual employment.

in Bergen v. Wood, the court refused to enforce a contract between parties in a seven-year relationship who never cohabitated. n95 In Taylor v. Fields, a forty-two-year relationship was incapable of overcoming the bar on sexual consideration because the parties had been legally married to others and accordingly also never cohabitated. n96 It would seem highly illogical that in contrast to these lasting relationships a court would find that the relationship between adult filmmaker and performer is such that financial enrichment for sexual activity would not be in violation of public policy. Adult film performers are contracting to provide explicitly sexual services to complete strangers in exchange for financial compensation. If the underlying rationale for prohibiting sexual consideration is to uphold a policy against prostitution, adult film performers would seem to bear far stronger resemblance to prostitutes than would long-term unmarried companions. Public policy accordingly would militate even more strongly against the enforcement of contracts in the adult film context.

A second and more conventional circumvention of the sexual consideration prohibition would be to hold that the provision of sexual services in adult film contracts is severable from permissible forms of consideration present elsewhere in these contracts. For example, in Whorton v. Dillingham, n102 the cohabitation agreement in question undeniably involved the rendition of sexual services; however, because it also required services as chauffeur, bodyguard, secretary, and business partner, the contract remained enforceable to the extent that it rested upon consideration independent of the sexual aspects of the relationship. n103 Unlike sexual services, the additional services in Whorton were “the type which are usually monetarily compensated [and] considered to have a value for the purpose of contractual consideration.” n104 The contract therefore remained valid even in the presence of sexual consideration. While this approach might be an effective way of enforcing contracts in sexually provocative “mainstream” films, because the acting performances are monetarily valuable independent of their sexuality, it seems unlikely that performance in an adult film could be considered monetarily valuable in the absence of sexual conduct. n105 As sexual acts are central to any substantial role in an adult film, it would be difficult to argue that the payment provided could be imagined as compensating the incidental acting performances. While the severability approach is doctrinally supportable, its utilization to allow enforceability likely would be futile.

CONCLUSION

Although this paper provides several bases upon which the enforceability of adult film contracts may be challenged, its purpose is not to make a normative argument against enforceability. Rather, its purpose is to outline the irreconcilability of the enforcement of adult film contracts with the furtherance of interests expounded by California courts in related areas of law. Courts cannot condone and facilitate adult entertainment industry practices without substantially compromising their interest in discouraging prostitution via a reasonable application of criminal statutes. Similarly, the industry’s employment contracts may not be validated without diverging from centuries-old precedent in a manner inconsistent with public policy. If courts want to uphold the illegality of prostitution, proscribe sexual consideration in cohabitation agreements, and foster a lucrative adult entertainment industry, they must alter doctrinal approaches to these issues.

In order to shield industry contracting from criminal prohibition without obliterating any meaningful utility of prostitution statutes, courts must be able to distinguish convincingly pornography from prostitution in a manner that takes into account their differing relationships to disease, drugs, and violence. n106 [*563] An effective differentiation would both enable courts to justify their statutory applications as upholding the governmental interests behind the criminalization of prostitution, and furthermore, allow them to enforce these interests without creating substantially counterproductive statutory loopholes.

In order to preserve the contractual framework for unmarried cohabitation and respect extensive precedent prohibiting sexual consideration, courts must be willing to trumpet a countervailing public policy favoring the enforcement of adult film contracts. In the absence of enforceability, an industry providing significant financial benefit to California and its citizens would be alienated from the legal system, and concerns over coercion and abuse in the industry would be exacerbated by the inability of performers to protect their monetary and corporal interests. If the state is willing to recognize the adult entertainment industry as a legitimate, non-criminal entity, there would seem to be a strong public policy in favor of allowing individuals in this industry to have recourse to the same legal protections as are available in any other.

However, if the courts are unwilling to put forward a favorable public policy or are unable to differentiate effectively pornography from prostitution, any remaining desire to enforce industry contracts would require a wholesale reevaluation of the role of sexual exchange in our legal system and society at large. The rapid evolution of sexual mores in our nation has greatly altered understandings and acceptance of the commerciality of sexual conduct. The roots of our ban on sexual exchange lay in eras with vastly different sexual viewpoints than our own, and the rise of the pornography contract suggests that the time for sexual reconsideration in our legal system may have arrived. Otherwise, enforcing adult entertainment contracts without substantially altering doctrinal precedent creates an inconsistent and illogical approach to sexual exchange in the criminal, contractual, and entertainment law contexts.