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The enforceability of porn contracts: Nobody analyses it better

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INTRODUCTION

With the growing demand for internet pornography in India, and its usage becoming more rampant and widespread around the world, the adult entertainment industry has become an important centre of commerce in its own right.[1] With 13% of all internet searches being for erotic content,[2] and the worth of the industry being pegged at $97 billion dollar globally in 2015,[3] the industry does show immense commercial potential. However, be that as it may, the industry still remains on the fringes of the mainstream world and is only now beginning to command some respect in the Western world. As any other large industry, the adult entertainment industry requires the protection of the judicial system to ensure that the tremendous financial value invested in the business is not sacrificed due to broken promises, faulty expectations, or criminal sanctions.[4] In this paper, it is the researcher’s motive to analyse the law governing the desirability of adult entertainment industry contracts, the problems associated with their enforceability, and the role of the State and its machinery in the enforcement of such contracts, should it be realized that it is desirable to have such contracts enforced.

With the proliferation of websites vending adult content in India catering to distinctly Indian tastes[5] and the new-era resurgence of India’s iconic softcore porn, names like Savita Bhabhi have gained international recognition and are making their mark in the international pornography industry.[6] Thus, it has become an imperative to analyse the implications of the making such contracts in India and making sure that they are enforced. Given the fact that there is not much research available any discussion on the topic soon gets mired in moral-political arguments, we at Project Legal Renaissance have taken this initiative to attempt to clarify the position qua enforcement of such contracts. With the government lifting its draconian ban on pornography after coming under heavy fire for curtailing an individual’s private freedom and for excessive moral policing, pornography is not illegal in India per se[7] and thus the enforceability of contracts made between those who choose to participate in the venture becomes of quintessential importance.

The researcher for the limited purposes of this paper shall overlook the constraints posed by Section 292 of the Indian Penal Code[8] and assume that no criminal liabilities will follow for those pursuing such ventures in India. Thus, this paper is purely an intellectual exercise in itself and is meant to analyse the predicament that is the enforceability of adult entertainment industry contracts in India purely from a contract law perspective and the need, if any, of the government intervention in the enforcement or non-enforcement of such contracts based on principles of public policy.

LEARNING THE ROPES (PUN INTENDED): WHAT IS AN ADULT ENTERTAINMENT CONTRACT

In modern times, adult entertainment contracts are contract that lay down the rights and the obligations that exist between the agent and the adult entertainer. Earlier, such entertainers were required to contract directly with the producing studio for a certain number of films in which they were required to perform. But after the infamous Brent Corrigan[9] scandal in which Sean Paul Lockhart, who appeared in adult movies under the name of Brent Corrigan[10] was forced to have unprotected sex by the producer of a Studio Lockhart was under a contract with under the threat of breach of contract (though unsuccessfully so), the nature of contract shifted to an agency contract with the adult entertainer assuming the status of an independent contractor and entering into a contract with her/his agent rather than with the studio itself.[11]

However, even agents may only look after their interests, and given the sleazy connotations that are often associated with the industry, their enforcement might become an issue. To solve this problem, given the independent contractor status of the adult performers, a standard form contract which is generally administered as a matter of trade practice to any other independent contractor should work. A cue can be taken here from the American State of California. In California, an agent is only allowed to use a pre-approved Talent Agency Agreement. This agreement must be pre-approved by a California Labour Commissioner.[12] Such “exclusive talent agency” contracts operate between the parties to the contract for a limited term and are well-equipped to protect the rights of the performer while taking cognizance simultaneously the interest of the agent. The agent is only given the power to “advise, counsel or direct” the adult entertainer and thus the entertainer retains a significant amount of leverage in her/his dealings with studios creating adult content.[13] Thus, up to this point, the contract as understood as an exclusive agency contract does not raise any significant legal issue as to act as a hindrance to the enforcement of such contracts.

WHEN IT GETS HARDCORE: THE MORAL AND PUBLIC POLICY IMPLICATIONS OF ENFORCEMENT OF ADULT ENTERTAINMENT INDUSTRY CONTRACTS

Though the issue is mired in controversy and is the subject of heated moral dialectics, the researcher pleads the reader to try to analyse the researcher’s argument in a level-headed manner. Going back to the Brent Corrigan case mentioned above,[14] the first problem that arises is whether the enforcement of such a contract against the will of the performer would amount to rape or some other form of non-consensual sexual intercourse constituting an offence as per the laws of the land. For the sake of clarity, the facts of the above mentioned case were that the underage adult performer had claimed that he was underage when entering into a contract with the studio when the producer of the company brought numerous charges against him, including one for breach of contract, for failing to perform his contractual obligations. The adult entertainer had two films remaining on his contract when the charges were brought and in both the films he had to be the “recipient” in bareback scenes.[15] This case is an excellent one to prove the point that enforcement of every sexual contract need not result in rape, as first, in such cases, as in the cases of breach of other service contracts, the Courts shall refuse to force specific performance.[16] Also, performance of such a contract may be prohibited for public policy reasons in India.[17]

Another concern that might be raised qua enforcement of an adult entertainment contract is that it promotes leads to promotion of prostitution, even though only substantially, and thus has a significant impact on the moral fibre of the society. In the US, there are concerns that the proliferation of the porn industry would lead to more and more people being found in violation of the anti-pornography, prostitution and pandering laws. Critics of the enforceability of the adult entertainment industry contracts argue that at its core, pornography involves paying people to have sex on film.[18] In the Indian context, Section 292 serves the purpose the pandering and anti-pornography laws serve in the US. Since there is solicitation, and consideration involved, it satisfies the elements of prostitution. Also, the crew may be booked under voyeurism charges brought under Section 354C of the Indian Penal Code.[19]

However, what such an approach fails to take into consideration is the different approaches and attitudes of the prostitution and pornography industries. Existing jurisprudence has failed to distinguish between pornography and prostitution in a reasonable manner that takes into consideration their differing relationships to disease, drugs and violence.[20] The Courts should adopt, when the time comes, a countervailing public policy favouring enforcement of adult contracts without prejudicing the motive of the State to put a curb to prostitution and other activities that it may consider to be infelicitous vices. If the contracts are to be properly enforced, the State and all its instrumentalities ought to see the industry as a legitimate, non-criminal entity.[21]

What also has to be kept in mind is that the enforcement of such contracts is in the best interest of both the performers and the producers. Though the contractual employment in the industry has been increasing, the contracts have been practically rendered useless because of the non-enforceability of the same. In the US, it has been suggested that there are two reasons for the non-enforcement of the contracts. First, an extreme hostility pervades between the legal profession and the adult film industry, with the latter often being incessantly harassed by the former to wring out every extra penny. Second, the industry has itself been sceptical of the enforceability of its own contracts, for obvious reasons.[22] It is very difficult to get such a contract enforced in a Court of law, as it is highly likely that one seeking recourse might as well be persecuted by it, especially given the nature of the industry.  While the benefits for the studios and the producers to have legally enforceable contracts are manifest, even performers gain from such contracts as the contracts can help performs prevent physical and psychological harm and ensure that performers are not coerced to do anything that they are not comfortable doing.[23]

Then comes perhaps the most important question with respect to India, and that stems from Section 23 of the Indian Contract Act. Public policy concerns are a legitimate concern. However, as the researcher has suggested above, if a new approach which does not compromise on laws which genuinely try to regulate immoral activity and at the same time decriminalizes and takes the stigma away from the porn industry could be formulated, it would solve all these problems. The test laid down under Section 23 is what the Court regards as immoral and opposed to public policy[24] and following the researcher’s lead if the Court considers the industry only as a financial, non-criminal entity and nothing else, then even this problem can be solved. If pornography has been selectively unbanned, and prostitution has been not, it follows that pornography is not against public policy in its true sense and thus there should be no real conflict between pornography and public policy.[25]

Also, as there can be a genuine niche that can be carved out for State interference. As the US uses the Internet Corporation for Assigned Names and Numbers (ICANN) to regulate the Domain Name System and Courts orders can be issued through ICANN to the registrars to take the illegal material down,[26] a similar framework can be set up in India. The contract that ICANN signs with the domain name registrars incorporates these terms in a manner that the two problems of enforcement- jurisdiction and injunctive reach are effectively overcome.[27] Thus, contracts can be used to take down illegal content, making sure that the legitimate contracts which protect the rights and interest of the performs and producers are rendered enforceable by solving a lot of moral problems involved.

CONCLUSION

Thus, it is the researcher’s contention that nothing within the Indian legal system inherently stops one from having an adult entertainment contract enforced in India. All that is needed is for the judiciary to take a more industry-friendly and humane approach and a lot many hurdles will be overcome. State may interfere whenever necessary, and the terms of such intervention may be defined in a contract with an independent body which may enlist the situations in which state intervention is warranted. This would rule out a lot of problems and be a huge step towards making such contracts enforceable. This is the researcher’s submission.

[1] Covenant Eyes, Pornography Statistics, (2015).

[2] Id, at 8.

[3] C. Morris, Things Are Looking Up in America’s Porn Industry, NBC News (January 20, 2015) available at http://www.nbcnews.com/business/business-news/things-are-looking-americas-porn-industry-n289431 (Last visited on July 30, 2016).

[4] A. Gilden, Sexual (Re)consideration: Adult Entertainment Contracts and the Problem of Enforceability, 95(2) Georgetown Law Journal 541,  541 (2007).

[5] A. Gupta, Growth of the Porn Industry in India, Desiblitz available at http://www.desiblitz.com/content/growth-of-the-porn-industry-in-india (Last visited on July 30, 2016).

[6] J. Overdorf, Meet India’s first porn star, globalpost (October 8, 2010) available at http://www.globalpost.com/dispatch/india/090430/indias-first-porn-star (Last visited on July 30, 2016).

[7] N. Khomami, India lifts ban on internet pornography after criticism, The Guardian (August 5, 2015), available at https://www.theguardian.com/culture/2015/aug/05/india-lifts-ban-on-internet-pornography-after-criticisms (Last visited on July 30, 2016).

[8] Section 292, The Indian Penal Code, 1860.

[9] Cobra Video, LLC v. Lockhart, No. 06cv0293J(LSP) (S.D. Cal. Mar. 8, 2006).

[10] Cobra Video, LLC v. Lockhart, No. 06cv0293J(LSP) (S.D. Cal. Mar. 8, 2006).

[11] Gilden, supra note 4, at 545.

[12] Adultbizlaw Legal, Porn 101: Choosing an Agent – Part-1 (September 26, 2012), AdultBizLaw, available at http://adultbizlaw.com/porn-101-choosing-an-agent/ (Last visited on July 30, 2016).

[13] Clause 2, Exclusive Contract Between Artist and Talent Agency, available at http://adultbizlaw.com/wp-content/uploads/2012/09/Talent_Exclusive_Contract.pdf (Last visited on July 30, 2016).

[14] Cobra Video, LLC v. Lockhart, No. 06cv0293J(LSP) (S.D. Cal. Mar. 8, 2006).

[15] Cobra Video, LLC v. Lockhart, No. 06cv0293J(LSP) (S.D. Cal. Mar. 8, 2006).

[16] Steven Shavell, Specific Performance Versus Damages For Breach Of Contract, 23 (Discussion Paper No. 532, John M. Olin Center for Law, Economics, and Business, Harvard Law School, 2005).

[17] Section 23, The Indian Contract Act, 1872.

[18] Gilden, supra note 4, at 541.

[19] Section 354C, The Indian Penal Code, 1860.

[20] Gilden, supra note 4, at 562-563.

[21] Gilden, supra note 4, at 563.

[22] The Legal Barriers To Enforcing Pornography Contracts International Law Essay, UK Essays (November 2013), available at http://www.lawteacher.net/free-law-essays/international-law/the-legal-barriers-to-enforcing-pornography-contracts-international-law-essay.php?cref=1 (Last visited on July 30, 2016).

[23] Id.

[24] Section 23, The Indian Contract Act, 1872.

[25] Section 23, The Indian Contract Act, 1872.

[26] 21 Pac. McGeorge Global Bus. & Dev. L.J. 79 2008.

[27] 21 Pac. McGeorge Global Bus. & Dev. L.J. 79, 109 2008.

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