Legal question about porn production, consent, and contract law

March 17, 2015 10:02 AM

This is a purely theoretical legal question: What legally happens when a porn production contract is made but one of the participants changes their mind?

I'm assuming that creating a contract for an illegal act is illegal. If I created a contract requesting that another person commit murder, smuggle drugs, commit theft, etc., then I've also broken the law, right? (I guess that's question 1)

So, what happens if a porn producer hires two people to be in a porn production, and one changes their mind? If the person didn't go through with it, it would seem like a contract violation, but the only way to satisfy the contract would be to have sex despite not wanting to, which would be rape, and I can't really imagine the law requiring that. Would the contract just be considered invalid? (I guess that's question 2).

And if the answers to Question 1 and Question 2 are "Yes, it's illegal to contract for crimes" and "No, you wouldn't have to go through with it, and the contract would be invalidated", my next question is: the contract would be essentially have been a contract for an illegal act (rape). Would that mean that the creation of the contract would retroactively become a criminal act? If not, how/why not? (Question 3)

(Also, do porn contracts contain provisos to avoid this situation even coming up? (Question 4). Even if they do, I'm still curious about questions 1, 2, and 3, though)

posted by anonymous to Law & Government (12 answers total)

It depends almost entirely upon the language of the employment contract, but as a general principle of contract law, you cannot force someone to specifically perform under a contract when they refuse to do so. There are all sorts of legal routes to try to compensate the person who loses out on the bargained-for outcome, some of which are punitive to the person who refuses to fulfill their obligations under the contract, but as a general principle of contract law in the U.S. if you contract with me, specifically, as a performer (in any arena, films, porn films, public speaking, tattoo artisting, baking) and I refuse to perform, the law will not force me to act, speak, tattoo or bake your cake. This is why most contracts for services (like catering) do not specify particular chefs, and why there is performance insurance for actors who are notoriously unreliable.
posted by crush-onastick at 10:15 AM on March 17, 2015 [6 favorites]

Implicit in the contract was that the performer would engage in consensual sex. If he doesn't (i.e. he breaks the contract) he could be liable for damages. In other words, he's being paid not only for the act of sex but his consent. If he changes his mind, he's broken that aspect of the contract. Rape doesn't enter into it anywhere.

I mean, if your reasoning were correct, it would lead to strange consequences. Suppose I sign a contract with you to deliver 10 apples tomorrow at 10am to me. You decide you've changed your mind, and therefore the only way those apples are going to get there is if someone forces you, which is robbery/kidnapping etc. which is illegal therefore the whole contract is unpossible. Nope. You broke the contract and owe me damages for the loss I sustained by being appleless.
posted by kevinsp8 at 10:30 AM on March 17, 2015 [6 favorites]

I should add, that non-consensual sexual acts are criminal does not really enter into the legal calculus with regard to the inability to force a person to perform in your porn movie, per the contract, when he or she has decided not to. The question of what acts could be considered nonconsensual, and therefore crimes, in the context of a contract to perform in porn is not something I can speak to.
posted by crush-onastick at 10:31 AM on March 17, 2015

So this comes out of your hypothetical territory and into practical, but you might also want to read something like the KinkLive Performer Agreement (PDF), and you can probably find various other agreements on-line. I just skimmed it, but I didn't see any sort of penalty for not engaging in a performance. Most of the issues were about future use of images, and not being an asshole on property...
posted by straw at 10:39 AM on March 17, 2015

In the order of your questions:

1. Illegal contracts are not permitted. I cannot hire someone to kill another (or me, in most cases). The law considers this contract "void," meaning it is as though it never happened. The creation of porn is not necessarily illegal, depending on jurisdiction and local laws.

2. Everyone above seems to have a great grasp on what happens if a performer "pulls out," so I won't reiterate. But one thing that no one is mentioning is what the performer is getting -- money. That's why Damages matter. The contract to perform (Shakespeare, porn, whatever) is an agreement that one party does the act, and the other party pays the first party. The legal term is Consideration.

(There are specific rules for unique items - real property is the usual example - where a Court can order Specific Performance. I don't think this enters into this conversation, as uniqueness is a high bar)

3. If the performer breaches the contract (i.e., does not perform), then the Producer (assuming filmed porn) does not have to pay the performer. There will be no sex. If the performer is paid first, the Producer can sue the performer for their money back. There may or may not be additional damages, such as lost production time, that are written into the contract in the event of a breach. In California, for example, most written contracts must include a clause that allows for the collection of attorney's fees in the event of a breach if those damages are to be recovered.

4. I am not familiar with any porn contracts, so I cannot state whether typical contracts have these types of provisions, or what the damages provisions are.

IAAL, IANYL, TINLA.

(I don't know what would happen if during a porn scene a performer withdraws consent, although I imagine that question has previously been raised and discussed)
posted by China Grover at 11:16 AM on March 17, 2015 [3 favorites]

The issue is damages caused by the breach of contract.

Realistically, the porn company will not promote a film until after it is produced. The actor is can only be held accountable for actual damage caused by the breach of contract. The porn company has an obligation under the law to try to mitigate the damages they suffered, ie. higher a different actor.

It is hard to imagine any circumstance where the actual damage suffered by the porn company would be any real value. Generally, porn companies assemble a film crew that shoots several scenes in one day, so it is not like the porn company is even out the cost of production.

However, if the contract involved some special star, and was set to filmed at a special location, and the porn company spent money promoting the soon to be made film - then you might have actual damages, and then there might be an incentive for the porn company to pursue the breach of contract in a court of law.

But in vast majority of cases, hiring lawyers will cost the porn company a lot more money than anything they would get out of an actor for breach of contract.
posted by Flood at 11:19 AM on March 17, 2015 [1 favorite]

Someone's feelings about performing under the terms of a contract don't chance the character of the contract. This isn't a contract for X dollars to rape someone regardless of how either party feels at the time of performance.
posted by unreasonable at 11:38 AM on March 17, 2015

Specific performance (you must do what you contracted to do) is always disfavored except in the context of the sale of unique goods, and is never allowed as a means to enforce a contract for personal services, even when your services are unique. The Anglo-American legal tradition abhors forced labor, other than to punish a crime or as consequence of conscription, and the 13th Amendment (banning slavery) has been taken by some scholars to make specific performance of personal services contracts illegal.

When an employee or contractor breaches an agreement for personal services, you can sue for one or both of two things: for the money you lost as a a result, or to keep to employee / contractor from working for anyone else.
posted by MattD at 1:33 PM on March 17, 2015 [1 favorite]

> or to keep to employee / contractor from working for anyone else

There you go. If you hire Garth Brooks to sing at your daughter's wedding, and he happens to live in your state, and he tells you he will not appear, no court will compel him to appear and sing - no specific performance for personal services. But it can order that he not sing for anyone else that night.
posted by yclipse at 2:52 PM on March 17, 2015

it would seem like a contract violation, but the only way to satisfy the contract would be to have sex despite not wanting to

This isn't how contract works. What you are describing is called specific performance, which is only for rare cases such as for the sale of land because every parcel of land is presumed unique - while you can always buy another parcel, you can't buy *that* particularly parcel anywhere else in the world so a sale can be be forced.

Specific performance is not possible for personal service contracts, which this would be. If the movie producer wanted to sue, they could sue the person who refused to perform for money damages. The measure would generally be the producer's lost profits that would have been realized if the performer had performed as contracted. A top list performer would face larger damages than an unknown performer. To use a conventional example, a producer could sue Tom Hanks for backing out of a movie contract for a lot more than Rob Schneider because of the anticipated difference in lost profits.

I don't think the comments about barring the person for performing for anyone else hold unless there was an injunction clause in the contract, and then you still have to prove your entitlement to an injunction such as that the person performing for another party would cause you harm that could not be remedied by money damages.
posted by Tanizaki at 3:02 PM on March 17, 2015 [1 favorite]

Mostly, you can't be forced to do anything you don't want to do (except by the government), but failing to live up to contract could make you liable for damages. (IANAL)
posted by SemiSalt at 3:58 PM on March 17, 2015

Having seen more than a few porn contracts, this generally isn't stipulated beyond liability for breach of contract, as other people have mentioned. People flake in porn all the time. It's not a good move if you actually want to have a career in porn, but if you're just some highon who's looking to make a couple hundred for sportfucking, it's not like you're going to be asking the producers to write you a letter of reference for grad school anyway. It's pretty similar to how every other performer contract is handled, with the possible exception of the record contracts that are for X number of albums (and even those have been contested in California).

It's also worth noting that getting fixated on consent in that way is not a good fit for how porn performers think about their jobs — there are plenty of them who fuck when they don't want to, when they're sore or when they think their fellow talent are meth-addled stumpfuckers. But they perform because they're getting paid to do a job, the same way that plenty of people if given a truly free choice would really rather not be working at Burger King. It's that line of thinking around consent and sex work that leads to a bunch of weird, suboptimal outcomes for people actually doing the work.
posted by klangklangston at 7:00 PM on March 17, 2015 [1 favorite]