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Department of Justice Form

by | Aug 5, 2020



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Please Note:

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.




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.



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:


  1. Be issued from the United States, or a State or political subdivision thereof;
  2. Examples Include:
    1. Driver’s License
    2. Passport
    3. Green Card
    4. Foreign Equivalents for non-U.S. Citizens
  3. Bear a photograph;
  4. State the name of the person;
  5. State the birthdate of the person;
  6. Be valid at the time of production (i.e., not expired).

See Exhibit A attached above




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:


  1. Contain the legal name and birthdate of the performer obtained from the ID;
  2. List any name, other than the legal name, the performer has ever used;
  3. This includes:
    1. Stage Names
    2. Aliases
    3. Maiden Names
    4. Nicknames
  4. Include a copy of the depiction(s) in which the performer appeared;
  5. Be kept alphabetically by the performer’s legal name;
  6. Be stored at your place of business or the place of business of a third party custodian of records;
  7. Be maintained for seven years from date of creation or last amendment or addition (and five years after cessation of business).

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:


  1. In a typeface, color and size, and for a duration, that makes it legible;
  2. On the first page after front cover or on the copyright page; after end credits or, if no end credits, within one minute from start of film, before opening scene; on each webpage with covered material, in full or as a link or mouse-over.

See Exhibit D attached above






 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





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:


  1. RECORDINGKEEPING / LABELING:Follow the steps above for directly filming, arranging for the participation of performers in, or exercising editorial control over works depicting actual sex, i.e., create and maintain title-specific records and affix a record-keeping label.


  1. CERTIFICATION:File a certification with the Attorney General within 60 days after filming the applicable scene (or confirm you already have one on file) that states you are a commercial enterprise that in the normal course of business collects and maintains individually identifiable information for all performers you employ, under Federal and State tax, labor, or other laws, labor agreements, or otherwise pursuant to industry standards.

See Exhibit E attached above