Legal Question in Technology Law in California

Re: Porno for Profit

The First Amendment does not protect obscene expression. See http://www.netatty.com/adult-websites.html for more info.

There are companies in the United States that create videotapes similar to what your friend wants to do. I am not aware of anyone suing them for invasion of privacy. However, this may be because the subjects of the videotapes did not discover the secret taping. I think some of these companies would just consider a lawsuit (and the eventual settlement) to be a cost of doing business.

Other companies are very careful to only film in public areas and/or get the subjects' written consent.

Your friend's business venture sounds fraught with the potential for liability. He should hire a competent attorney to advise him explicitly about what he can and cannot do when it comes to filming sexual situations in public places.

Re: Porno for Profit

If the people in the videotape were in a public place when your friend made the tape, then he will probably prevail if they decide to sue. If they knew he was taping them then his position is even better. The basic logic is that there is no invasion of privacy for acts that occur in public.

If the events he taped were in a private place open to the public (like a restaurant or convention center, for example), then he might need a release from the owner; the people he taped can try to assert that they had an expectation of privacy under the circumstances, and who would win such a contest depends on specific facts which you have not provided.

The reason for a release isn't just to give your friend the right to post the pictures, which he may be entitled to do depending on the circumstances. It's also a safeguard against being sued on a weak case -- just because he seems likely to win a suit doesn't mean he will be willing to put up with the expense and aggravation of the process.

Re: Porno for Profit

This is not a first amendment issue. your friend is an idiot.