February 28, 2003 12:42pm
Tips for Adult Webmasters from Lawrence G. Walters, Esq.
by: Lawrence G. Walters, Esq.
20 Practical Tips for Beginning Adult Webmasters, Prepared for Internext, January 6, 2003.
1. Educate Yourself. Too many beginning webmasters attempt to get into this industry without familiarizing themselves with the complicated regulatory scheme applicable to adult Website operations. Numerous resources exist to assist you in determining whether this is the right business for your personality and risk tolerance level. Resource sites, industry trade publications, legal resources and court opinions should all be consulted before the first dime is spent on purchasing content or marketing.
2. Develop a Business Plan. Many beginning webmasters have approached our firm for representation with nothing more than a good idea and a few bucks in their pocket. They start building their Website before performing any sort of commonplace market conditions evaluation or financial analysis. Pretty models or a unique web design are not enough to succeed in the adult Website business, at its current maturation level. Business plan forms can be found on the Internet. Entrepreneurs who have succeeded in the brick and mortar world can be the source of invaluable advice when it comes to the practical realties of operating an online business. Write your business plan and have it evaluated by your accountant, financial planner or attorney.
3. Raise Sufficient Capital. Gone are the days when a booming adult Website business could be created for under a thousand dollars. Given the "stiff" competition out there today, a significant budget is required for items such as:
a. Marketing and promotion
b. Legal evaluation
c. Accounting services
d. Computer equipment
e. Content/model compensation
f. Employee salaries
g. Licenses, taxes and permit fees
Skimping on any of these items can sound a death knell for any startup adult webmaster.
4. Identify a Niche. The beautiful buxom blond porn star niche has been overdone, and may not provide the best return on investment. However, the interest in human sexuality is as varied as human beings themselves. Countless unique niches have yet to be discovered or exploited. Smaller webmasters can compete in a marketplace dominated by larger companies through niche marketing. Warning: Some niches can result in higher legal liability.
5. Form a Corporation. Even as the adult Website industry becomes more sophisticated, too many Webmasters are operating as sole proprietors without the benefits and protections of a corporate entity. Properly created and maintained, a corporation can provide a shield against liability for various debts, and is basically considered cheap insurance. In addition, a corporation allows a business to more easily take on investors and sell assets, should the need arise in the future. Finally, creating a corporation provides one with the air of professionalism that any startup Webmaster needs to assist in establishing his or her business reputation.
6. Network. What this author has found in representing adult webmasters since the industry started in around 1995 is that those who are successful are those who form relationships, trade traffic, and who simply network. Attending trade shows such as Internext is a great place to start. Many regional events also occur throughout the country and North America all year long. Bar meets, parties, online chat sessions and many other forms of networking activities are available to the beginning Webmaster who seeks them out. Networking can pay dividends!
7. Create a Set of Valid Terms & Conditions. As a Website owner, you can require that all users of the site agree to a set of restrictions and conditions in order to access and use the site. A third party billing company's Terms & Conditions are no substitute for your own! A comprehensive set of T&Cs can save you in the event of a legal dispute with one of your customers.
8. Keep Minors Away from Adult Materials. The government loves to use this argument, so take it away from them. Either keep your free areas censored, or implement good faith efforts to keep minors out away from free material. There are various different ways to do this: We provide our clients access to a particular computer script and copyrighted age declarations to keep minors out, but you must try to do something to keep children away from adult content. Keep in mind, virtually every state has a law prohibiting anyone from making adult materials available to minors.
9. Strictly Comply with the Mandates of Section 2257. Title 18, U.S.C. 65533;2257 imposes stringent requirements for (1) creating content, (2) maintaining records; and, (3) displaying content. Don't try to guess which images require 2257 certification. Assume they all do. An attorney's advice is critical at this juncture.
10. Copyright your Material. Maximum benefits are obtained under United States copyright law by filing an application for Copyright Registration with the United States Copyright Office within three (3) months of first publication of the images. Failure to register on time may render it economically impractical to pursue a copyright infringement case against others stealing your images. The Website, itself, can also be copyrighted. Make sure to include 65533; information on each of your Web pages.
11. Only Use Licensed Content. Do not steal images from other Websites or newsgroups. If you did not create it, or buy it, it belongs to someone else. Common notions of what is in the "public domain" are generally wrong.
12. Pay Your Taxes, Keep Your Employees Happy and Over-comply with Government Regulations. Adult businesses are under a microscope. If the government is looking for a way to get you, it might find a way through technical non-compliance with a host of regulations or laws. As an adult webmaster, you cannot get away with what other businesses get away with. You will be held to a higher standard. Often clients come to the attention of law enforcement through complaints by ex-employees, customers or models who feel cheated. Maintain a high degree of personal integrity and business ethics. This may avoid substantial problems in the future.
13. Create a Brand Name. Picking a name that is capable of registration as a trademark or service mark is important to the success of your business. Creating an online identity through a recognizable brand name is half the battle to long term success. Names like "hotblondbabes.com" are generally considered too descriptive for trademark registration. However, arbitrary, made-up names like "Yahoo!" or "Exxon" or "Polaroid," which mean nothing in the English language, have the best chance of being registered as a trademark or service mark. Performing a trademark search prior to selecting your online brand name is also a good idea. Some legal advice on this issue early on can pay dividends into the future.
14. Watch Your Links. Precedent has been established imposing vicarious liability on Webmasters for content contained on sites to which they link. Are you comfortable with the content found on all sites linked to your pages? This is especially important if you are in any sort of financial relationship, or obtain any sort of benefit for reciprocal linking.
15. Take a Stand against Child Pornography. The enemies of the adult industry always attempt to mix concepts of protected adult materials with illegal child pornography. We, as an industry, must at every turn attempt to reestablish that all important line of demarcation. Take an outspoken stand against any involvement by children with adult materials, either as participants or as audience. Link to organizations such as ASACP.org (Adult Sites Against Child Pornography).
16. Become Politically Active. Join the industry's trade organization such as the Free Speech Coalition, found at FreeSpeechCoalition.com, and the Internet Freedom Association, Inc. found at OnlineFreedom.com. These organizations are looking out for the future of the industry, and are fighting for your rights on various fronts. The Internet Freedom Association is in the formative stages, and can use help in building a strong webmaster trade association looking out for the unique interests of the adult Internet industry. The Free Speech Coalition has litigated a number of important cases for the adult industry, and has been running for Free Speech rights for decade. The positions that these organizations take will affect the future of your industry. Get involved. Become a member, become a director, contribute and be active in your industry. It's not a bad way to meet people in the industry either.
17. Become an Expert on Obscenity Laws. Every adult webmaster should be able to recite the Miller test for obscenity from memory. Obviously you will need to obtain some advice from a competent First Amendment attorney to understand the intricacies of this law, and how it has been interpreted throughout the years by the courts. However, every
Adult webmaster should know the basics, along with some of the potential defenses. Obscenity prosecutions are coming, and the first wave has already begun. Two cases were filed by the Department of Justice in the last 6 months, based on Website content, and one individual has already been sentenced on a federal felony for mailing obscene materials available on her Website. Conventional wisdom dictates that this is just the very beginning of what will likely happen given Attorney General John Ashcroft's stated intent to initiate obscenity prosecutions on a wide-scale against Internet content. You should learn the tricks of the trade when it comes to identifying potentially obscene material, and reducing your risks for being targeted by the government. Adult Webmasters should learn to develop a "smell test" to determine what might be considered obscene, based on prevailing community standards.
18. Secure Evidence of Your Community's Standards. Does your local community allow the sale of hard core adult materials? Is there an adult bookstore or video store in your neighborhood? If you are charged six months from now for content you are selling today, how will you be able to prove what the community standards were when you were selling the material? Some courts allow introduction of "comparable" materials in the defense of an obscenity prosecution. It may benefit you to have somebody, who would make a good witness in court, go to the adult bookstores in your area and purchase the hardest adult material he or she can find, and put it in a sealed bag stapled with the receipt. That bag may come in handy some day.
19. Mind Your Promotional Activities. Many adult webmasters are extremely careful when it comes to the content, but throw caution to the wind when it comes to marketing activities. Are your affiliates spamming the newsgroups, or sending out unsolicited emails? At least sixteen states have laws regulating the dissemination of unsolicited email (SPAM). Make sure your marketing activities do not cause more trouble than they're worth.
20. Translate your site. Don't ignore the substantial foreign markets that are ready and willing to pay money for your content, if they could only read your text! Various online and human translation services are available to translate the text of your site into virtually any language. Identify those markets which will provide adult Webmasters with the best conversion rates, and translate your sites into those languages.
21. Ask for, and Listen to, Advice from Experienced Professionals. The adult Internet industry is one of the friendliest industries in existence. Experienced industry players are happy to take newbies under their wing as a mentor. Often newbies are either afraid to ask for advice, or believe that they don't need it. Much can be learned from industry veterans who are often more than willing to share their experience learned from many mistakes.
Taking some of these tips to heart will drastically reduce your learning curve and allow you to benefit from what would otherwise be years of experience. Go forth, and prosper!
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, FirstAmendment.com or AOL Screen Name: "Webattorney."
Lawrence G. Walters
Weston, Garrou & DeWitt