Legal Question in Technology Law in California

Re: Protection with an adult website

1. No. If the images are copyrighted (as the vast majority are) then you cannot copy them. The fact that you don't charge the users is irrelevant. You need to either be very careful to use only pictures that are in the public domain or obtain the permission of the copyright holder. Keep in mind that the copyright holder often is not the photographer or the subject.

2. There is no clear answer to this question. The Supreme Court has said that obscenity is measured by local standards, which means something that is obscene in Nashville might not be obscene here in California. There is reason to believe the Court might abandon this rule the next time it deals with an obscenity case, though it is hard to say what new rule it might announce.

Additionally, the context in which you use the images will play a large part in deciding whether the site is protected by the First Amendment. For example, a site filled with only pornographic images is far less likely to be deemed protected speech than a site which also includes a scholarly discussion of the pictures.

Your proposed disclaimer will provide some protection but you should not rely too heavily on it. Setting up a system which keeps out only those minors who are willing to admit that they actually are children might not be deemed sufficient in some places. After all, if a kid is browsing for porn he is unlikely to care about being truthful about his age.

You should also keep in mind that your web site will be available worldwide. Even if it does not qualify as obscene under U.S. law, you could conceivably be sued or indicted in some other country.

I can't say how likely it is that you will end up in legal trouble, but if you are serious about making a go of this business idea you should get a lawyer involved before problems arise and not afterwards.