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Department of Justice Form
application/mswordDOJ-Compliance-Form.docDownload Copy Link 46.5 KB 2022-02-28 February 28, 2022 2022-02-28 February 28, 2022
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application/mswordEnd-Program-Credits-Compliance-Statement.docDownload Copy Link 19.5 KB 2022-02-28 February 28, 2022 2022-02-28 February 28, 2022
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application/mswordExhibit-A-Record-Keeping-Labeling.docDownload Copy Link 29 KB 2022-02-28 February 28, 2022 2022-02-28 February 28, 2022
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application/mswordExhibit-B-Log.docDownload Copy Link 45 KB 2022-02-28 February 28, 2022 2022-02-28 February 28, 2022
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application/mswordExhibit-C-Example-of-Completed-Log.docDownload Copy Link 46.5 KB 2022-02-28 February 28, 2022 2022-02-28 February 28, 2022
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application/mswordExhibit-D-Example-of-Tape-Disk-Label.docDownload Copy Link 27.5 KB 2022-02-28 February 28, 2022 2022-02-28 February 28, 2022
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application/mswordExhibit-E-DOJ-Certification-Letter-Template-2020.docDownload Copy Link 36.5 KB 2022-02-28 February 28, 2022 2022-02-28 February 28, 2022
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These policies do not constitute legal advice. Producers should consult their own legal counsel regarding the relevant statutes to ensure compliance with the law, and are free to implement procedures for compliance in addition to those stated here. Thank you for your attention to this serious matter, and we look forward to working with you to ensure compliance with these policies. Feel free to contact the Discovery Communications Legal Department with any questions, comments or concerns.
Policy Regarding Production of Sexual Content by Content Suppliers
Compliance with 18 U.S.C. §§ 2257 and 2257A
Discovery Communications requires its outside producers providing television and digital content to comply with federal law regarding the production of sexual content and related regulations. Recently, the Department of Justice (“DOJ”) amended the requirements for recordkeeping by producers and broadcasters whose programming contains sexually explicit material. The summary below is not exhaustive, but it contains some of the information regarding the new regulations.
What are the rules?
There are two categories of programming covered under the Act:
(1) Material that depicts performers actually engaged in sexual acts; and
(2) Material that depicts “lascivious exhibition” of sexually explicit content or “simulated sex.”
These new rules are applicable to all content – even content that does not air.
Who do these rules apply to?
These rules only apply to people who are hired/compensated by or significantly controlled by the producer or network. It does not apply to graphics or animation.
What if producer determines that no actual sexually explicit conduct, lascivious exhibition of genitalia, or simulated sexually explicit conduct will be obtained during the production of a program?
Producer must provide either (i) a certification form to Discovery Communications at the conclusion of each production stating that “No actual sexually explicit conduct, lascivious exhibition of genitalia, or simulated sexually explicit conduct, as described in 18 USC § 2256 et seq., was recorded by the production company in connection with the program [title].” or (ii) Producer must submit proof of filing a Certificate Letter with the Department of Justice. (See documents attached above.)
Foreign Producers of Foreign Productions:
For your information, these obligations apply to foreign production companies as well.
REQUIREMENTS PERTAINING TO MATERIAL THAT DEPICTS PERFOMERS ACTUALLY ENGAGED IN SEX ACTS:
Actual Sexual Explicit Conduct: Actual and not simulated sexual intercourse. This includes genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; bestiality; masturbation; sadistic or masochistic abuse.
- AGE VERIFICATION
If there is any possibility that actual sexually explicit conduct will be recorded during production, the producers must obtain:
Prior to shooting, ensure that a photo ID is checked for all performers in any sex scene(s) to confirm they are not minors. The ID must:
See Exhibit A attached above
- RECORD KEEPING
If any footage containing actual sexually explicit conduct is captured, the producers must keep records containing:
Photocopy the ID examined and make a record associating it with the performer to whom it relates. Records may be maintained in hard copy or electronically and must:
See Exhibit B and Exhibit C attached above
If any footage containing actual sexually explicit conduct is captured, the producers must affix a physical label to each copy of such footage.
|Affix to each copy of the work a statement with its title and that discloses the location of records described above and the custodian of records responsible for maintaining them. The label must appear:||
See Exhibit D attached above
- REQUIRED END PROGRAM CREDITS
U.S.C. TITLE 18, SECTION 2257 COMPLIANCE STATEMENT
Records attesting that all visual depictions in this Episode [#] of [Program Title] of actual sexually explicit conduct are of persons who were over 18 years of age at the time the depictions were created, have been compiled and are maintained as required by 18 U.S.C. § 2257 by the following:
Discovery Custodian of Records
1 Discovery Place
Silver Spring, MD 20910-3354
REQUIREMENTS FOR MATERIAL THAT DEPICTS “LASCIVIOUS EXHIBITION” OR “SIMULATED” SEX:
Lascivious Exhibition of Genitalia: The following six factors are considered: (1) whether the focal point is on the participant’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive; (3) whether the participant is depicted in an unnatural pose or in inappropriate attire, considering the age of the participant; (4) whether the participant is fully clothed, partially clothed or nude; (5) whether the visual depiction suggests a willingness to engage in sexual activity; and (6) whether the visual depiction is intended to elicit a sexual response in the viewer.
Simulated Sexually Explicit Conduct:Conduct engaged in by performers that is depicted in a manner that would cause a reasonable viewer to believe that the performers engaged in actual sexually explicit conduct, even if they did not in fact do so.
Producers of footage recorded after March 18, 2009 containing lascivious exhibition of genitalia or simulated sex must either:
See Exhibit E attached above