Foreign talent and productions

When a performer, a shoot, or the person keeping the records is outside the United States, the same three rule sets apply: the federal statute, its regulations, and the card networks. What changes is which identification the regulation names, and that changes on facts about the day of the shoot, not on where a company is registered.

Who the federal law reaches#

18 U.S.C. § 2257 applies to whoever produces matter containing a visual depiction of actual sexually explicit conduct that is produced in whole or in part with materials mailed or shipped in interstate or foreign commerce, or is shipped, transported, or intended for shipment or transportation in interstate or foreign commerce. The statute does not carve out foreign performers or foreign shoots, and it does not name a nationality anywhere.

"Produces" is broad. It covers filming, and it also covers publishing, duplicating, reproducing or reissuing content intended for commercial distribution, and inserting content on a computer site or service or otherwise managing the sexually explicit content of one. The regulations split that into the primary producer, who shoots, and the secondary producer, who publishes or distributes; 2257 in plain English walks the cases. A producer in the United States who publishes scenes shot abroad by someone else is a secondary producer of those scenes and holds records for them. Whether, and how, the statute reaches a foreign primary producer with no presence in the United States is a jurisdiction question for an attorney; the U.S. publisher's own obligations do not wait on that answer.

The records must be kept at the producer's business premises, or where the regulations otherwise allow, and be available for inspection at all reasonable times.

What the record must hold, for every performer#

28 C.F.R. § 75.2 requires the same record for every performer, wherever they are from:

• The legal name and date of birth, obtained by the producer's examination of a picture identification card before production, plus a legible copy of the identification document examined.
• Every other name the performer has ever used: maiden name, alias, nickname, stage or professional name. Producers may rely in good faith on the performer's word for names other than the legal name.
• A copy of the depiction and, where it is published online, the URL or another unique reference to where it lives.
• For the primary producer, the date of original production.
• All of it organised by legal name and cross-referenced to every alias and every title.

A secondary producer may satisfy this by accepting copies of those records from the primary producer, and must also record the name and address of the primary producer the copies came from. The copies may be redacted of non-essential detail such as addresses, phone numbers and social security numbers, but the identification number of the picture identification card may not be redacted. In Easy2257 that is the received-records close-out.

Which identification the regulation names#

The document a producer must examine is a "picture identification card", and 28 C.F.R. § 75.1(b) defines it in two parts.

• A document issued by the United States, a State, a political subdivision of a State, or a United States territory that bears the person's photograph, name and date of birth, and carries enough information for the issuing authority to confirm it. The regulation gives as examples a passport, Permanent Resident Card or employment authorization document issued by the United States, and a driver's licence or other identification issued by a State or the District of Columbia.
• A foreign government-issued equivalent of any of those, when the person it identifies is a non-U.S. citizen located outside the United States at the time of original production, and the producer maintaining the records, whether a U.S. citizen or not, is also located outside the United States on the original production date.

Both halves of that second condition have to hold for a foreign document to be the card the regulation names, and the condition is about where the performer and the record-keeping producer were on the day of the shoot. Whichever half applies, the card must be valid as of the original production date.

The situations readers actually arrive with:

• A shoot abroad, a foreign performer, records kept abroad. Their foreign passport, national ID card, driver's licence or residence permit is the document the regulation describes.
• A shoot in the United States, or a record-keeper in the United States. The regulation lists U.S.-issued documents. Many performers from other countries who work here hold one: a Permanent Resident Card, an employment authorization document, or a state driver's licence or ID. Where a performer holds only a foreign document, talk to your attorney before the shoot rather than after it.
• Content shot abroad, published by a producer in the United States who holds copies of the records. The copies are still records of a picture identification card, and the second condition speaks of where the producer maintaining the records was on the production date. Whether copies held in the United States of a foreign primary producer's examination meet the definition is a question to put to your attorney with the dates and places in hand.

The rules do not otherwise restrict which country a document may come from. Which documents the identity check itself reads, country by country, is in Identity documents from outside the United States.

What the card networks require#

Mastercard's AN 5196 and Visa's Integrity Risk Program are card-network requirements, not laws, and Mastercard AN 5196 and Visa VIRP covers them in full. For foreign talent and productions the point is that they read the same wherever the performer or the shoot is: verified age and identity for every person depicted, documented consent for the specific content, a removal path anyone depicted can use without an account, defined response deadlines, and reporting to your acquirer. Neither programme keys any of that to the country that issued a performer's identification. What documentation your acquirer accepts as verification is the acquirer's call, so if a performer's document is unusual, ask them before the shoot.

Meeting the networks is not the same as holding the record the regulation describes, and the other way round. You need both, and neither substitutes for the other.

What Easy2257 records#

For a performer outside the United States, the same record as for anyone else: the document type (passport, national ID card, driver's licence, residence permit or state ID), the issuing country, the identifying details the check or you recorded, how identity was established (the identity check, or your own examination), the signed release, and the scene's date. The identity check accepts documents from more than 230 countries and territories.

The record shows what document was examined and where it was issued. It does not decide whether that document meets the regulation's definition above; that turns on where the performer and the record-keeping producer were on the production date, which is for you and your attorney to establish. For content shot by another producer, close the scene out with received records and keep the primary producer's name and address with it.

Reading further#

The primary sources are short enough to read directly:

• 18 U.S.C. § 2257, the statute: subsection (a) for who it reaches, (b) for what must be ascertained, (h) for what "produces" means.
• 28 C.F.R. Part 75, the regulations: § 75.1(b) for the picture identification card, § 75.1(c) for producers, § 75.2 for the records.