I commented on this over at Ernest Greene’s blog, but I wanted to clarify some points he made.

Cal-OSHA has jurisdiction only over employees.

This is false. Cal/OSHA has jurisdiction over all workplaces in California, regardless of whether or not the individuals are classified as employees or independent contractors. (In any event, some of the largest production companies in California already classify their performers and crew as employees.)

Regarding his point about HIV+ performers suing under California’s anti-discrimination laws:

1. Independent contractors hired to perform personal services (i.e., you hire that individual, not a company who sends a random person over) have the same anti-discrimination protections as employees.

2. As noted above, many production companies already classify their performers as employees.

So, the apocalyptic scenarios he offers can come to pass right now, without mandatory condom use. I must confess that I do not find his linkage of those scenarios with condom use to be compelling; I really don’t see a relationship at all.

The passage you’ve quoted was not written in response to the current HIV outbreak. It was written three months ago. Nor is it an expression of a new position. I came to my conclusions about what I would and would not ask people do do in front of my camera after the 1998 HIV outbreak that originated with Marc Wallice, and several years before I made my first commercially available film. In fact, the approach we use is a direct product of my desire to make films that are creatively satisfying and commercially sustainable without compromising the decision I made in 1998 to depend on a testing regime to ensure my subjects’ health and welfare. I would not depend on such a regime to ensure my own health, or the health of those I love, and because if this I cannot depend on such a regime to fulfill my vision of the union of sex and cinema.

I am pleased to say that with the support of retailers such as Good Vibration and others, my creative vision and the ethics that inspired it have proven to be capable of producing films have been both creatively and financially successful. Our films have delighted audiences around the world, in theaters and in bedrooms, won numerous awards and other recognition, and have provide an abundant life for me and my family. I have never had a single moment’s regret or ever questioned our commitment to the health and safety of our subjects.

I would like to say plainly that the oft-cited paradox of performer safety vs. profitability is a false one. What my wife and I have accomplished in the last 10 years is proof of that. Entertaining, profitable films can be made without asking people to take sexual risks to make filmed entertainment that we would decry in any other circumstances. Performer risk can be mitigated by directors who are willing to take creative risks, and producers who are willing to take financial risks.

I think it’s worth remembering that 20 years ago sextoys were generally of poor quality and often made of dubious materials. But in the intervening two decades, and in large measure thanks to Good Vibrations and sister retailer promotion of companies like Vixen Creations, Njoy, Fun Factory and others, there is a wide range of products for the enhancement of sexual pleasure that are made to the same standards that we’d expect of any other consumer products.

The challenges facing a filmmaker are even more daunting than those faced by these sextoy pioneers. Given our unique subject matter, our films are made from the lives of other human beings. My wife and I are ever mindful of this, and grateful to Good Vibrations for your ongoing support.

Mr. Comsctock is calling on the self-regulating adult entertainment industry to clean up their act through societal pressures and he’s citing the sex-positive community to lead the charge. Mr. Greene’s point that OSHA is not in a legal position to impose laws to that effect, in fact they’re legally obligated otherwise, doesn’t change the fact that a community that concerns itself with the forward momentum of society’s view of sex work does have an internal obligation to get involved.

Practical issues of latex and scene duration aside, I’m having a hard time finding a flaw in Mr. Comstock’s logic.

And thanks very much to Mr. Greene for illuminating the apparent legal paradox of health regulations in porn.

-BW