Producing pornographic films. Sex industries: Can the economic project involving various persons, all linked by a raft of contracts, be considered legal in private law terms?
The sex industry (also called the sex trade) consists of businesses which either directly or indirectly provide sex-related products and services or adult entertainment.
The industry includes activities involving direct provision of sex-related services, such as prostitution, and sex-related pastimes, such as pornography, sex-oriented men’s magazines, sex movies, sex toys and fetish and BDSM paraphernalia. Sex channels for television and pre-paid sex movies foron demand, are part of the sex industry, as are adult movie theaters, sex shops, and strip clubs.
By concentrating on prostitution and criminal elements associated with it, it is easy to forget that in the ‘sex market’ – and this could hardly be otherwise – there are enterprises where the activities are completely legal although many people may find them improper and the companies themselves prefer to retain a low profile.
The concept of ‘sex industries’ obviously implies the existence of capital (both financial and human), structures, equipment and organization dedicated to offering services and/or to production or exchange of goods.
And if we accept the legal-realistic viewpoint which sees an enterprise as a «nexus of contracts» we cannot then avoid the question of the legitimacy of these contracts or whether the charge of contrariety to morality levelled at dealings with the end customer does not as a result overwhelm the entire complex on which these depend and undermine the legitimacy of the enterprise as a whole2.
The issues to be raised here, starting from examination of the contracts, thus address whether and how these enterprises can and ought to operate.
Obviously anyone who starts out with the view that the ‘sexual’ goods and services on offer are immoral will find it difficult to accept that it is possible in this sector to speak of efficiency and competitivity, ideal company size, return on capital and even of social responsibility.
But from the legal point of view – and from that of business law in particular – once the activity in question has been recognised as legal there is no reason to ignore this fact when it comes to applying the same principles that are relevant in any other sector about which people have moral qualms about, such as the armaments or chemicals industries, or businesses that tend to have an unappealing image, such as funeral services or abortion clinics.
Producing pornographic films
The issue that now arises is whether all of the activity involved in pornographic film production is legal: actors and technicians need to be engaged; the set to be rented; and all the editing and post-production completed in readiness for distribution.
We shall assume that the product is pornographic and that the ‘harder’ it is, the more satisfied the customer will be.
The plot that the actors play out before the camera and the spotlights is highly simplified, but such as it is it is undeniably obscene, consisting of sexual acts of all kinds. Can the economic project involving various persons, all linked by a raft of contracts, be considered legal in private law terms?
The concept of ‘public morals’ and its sanitising function is sorely tested since all the participants in the different deals well know the nature of the product and how its purpose is fulfilled.
If the enterprise is organised in the form of a company, then its corporate object will be a continuous output of such productions and will be described as ‘video production’ qualified with the adjective ‘pornographic’.
Any queries on the parts of a jurist could perhaps be met by the factual observation that awareness of the uncertainty as to legality leads to production taking place overseas and only distribution of the finished item being carried out in countries with a repressive legislation of pornography. But this is hardly a satisfactory reply as it evades the problem by intellectual sleight of hand.
The solution seems to require us to grasp the matter by either one horn or the other horn.
Either we recognise (and it is hard not to) that such films are intentionally obscene, vulgar and scurrilous and the actors are ‘selling their bodies’, not in some theatrical fiction, but in a real sense abhorrent to human dignity. If so, there are inescapable consequences for the company, the legal relations created and its profits (for how could a shareholder aware of the situation legitimately ask for part of them?).
Or else it is the concept of contrariety to morality, as well as its effects that is to be amended without diminishing its range but restricting its use to where it is appropriate to direct it.
A normative response to these questions is often found in taxation law, which often considers the pornographic nature of the film produced to deny special tax rebates or benefits.
Therefore pornographic films are subject to ordinary taxes on company income.
The consequence is quite coherent: as the state does not (and cannot from an ethical point of view) tax criminal and other illicit activities, the production of obscene videos may well be considered disreputable but not against the law.
Abstract from: Zeno-Zencovich, Vincenzo, Sex & the Contract: From Infamous Commerce to the Market for Sexual Goods and Services (Second Edition) (October 23, 2015). Sex & the Contract: From Infamous Commerce to the Market for Sexual Goods and Services (Second Edition), Consumatori e Mercato series, Roma TrE-Press, 2015. Available at SSRN: http://ssrn.com/abstract=2678918