12.3: Conditions of and Responses to Precarity

Performers’ deft cobbling together of various income streams and tactical manipulation of their personal “brands” give the lie to the idea of porn workers as passive victims.¹¹ This is not to say that porn workers do not confront modes of work organization that constrain their autonomy and working conditions and threaten their well-being. It is, instead, to center on the creative ways in which they resist such conditions of precarity. Similarly, porn workers do not simply react to top-down management; just as often, changes in management style represent capital’s desperate responses to workers’ manipulating the system in ways management never anticipated. One performer explained, for example, that it is possible to identify clauses of an exclusive performer contract that correspond directly to work-arounds developed by previous contract stars. Listing individual clauses, she named each one after the performer who discovered a new way to assert power in the workplace. If this is a sobering reminder of management’s tireless drive to constrain worker resistance, we might also remember that workers are often one step ahead.

We now take a step back to sketch the conditions of precarity confronted by porn workers. We will then return to an exploration of the ways they can be understood as creatively precarious. Like other industries in advanced capitalism,¹² the adult film industry more and more relies on a flexible, itinerant, and deskilled workforce. While the pool of porn performers was a small and close-knit one in the 1970s and early 1980s, today’s seemingly endless supply of eager new performers limits current workers’ ability to negotiate the terms of their labor with agents, producers, and directors. Internet piracy and employers’ increased interest in casting amateurs further depress wages and job opportunities. The growing popularity of amateur aesthetics also decreases the demand for professional camera operators, directors, editors, and scriptwriters.

The porn industry operates free of most external labor regulations governing pay, employment discrimination, occupational health, and benefits. This is in part due to the industry’s liminal legal status. Industry-specific regulations typically focus on age record-keeping requirements ¹³ and obscenity prosecutions,¹⁴ rather than working conditions. Regulations governing occupational health, wages, and employment discrimination are clumsily borrowed from noncomparable industries, such as nursing in the case of blood-borne pathogens. Recent attempts at passing industry-specific workplace health legislation have proven unsuccessful. The Safer Sex in the Adult Film Industry Act passed in Los Angeles County in November 2012 has remained largely unenforced. In the face of overwhelming dissent from performers, anemic legislative support, and concerns about funding and enforcement, AB 1576, the proposed statewide legislation mandating a whole range of rigorous health and safety requirements, including condom use and employer-provided STI testing, failed in August 2014. Workers and management oppose external policy on the grounds that it would undermine what they maintain is the industry’s robust and effective self-regulation, which includes twice-monthly STI testing for performers and industry-wide filming moratoriums in the event of a positive HIV result. Indeed, workers suggest that that the industry’s testing system has suffered in the wake of the 2011 downfall of the Adult Industry Medical Foundation (AIM), which served as an autonomous and centralized testing and treatment clinic. Significantly, outside organizations campaigning for greater state involvement in the porn industry’s health protocols were instrumental in AIM’s closure.

Adult industry workers’ precarious legal status is solidified by their designation as independent contractors. To a large extent, independent contractor law is organized explicitly to excuse employers from their responsibilities to workers. Employers can, fully within the bounds of the law, pass on to workers a broad range of production costs, including STI testing, wardrobe, makeup, and transportation. Workers have little legal protection from discrimination in hiring or pay disparity. Rates for black women performers are a fraction of those of their white counterparts, for instance,¹⁵ plus-sized performers too are underpaid, and male performers can be blacklisted based on rumors of their having had same-sex sexual encounters. Independent contractor status means that workers cannot legally unionize and that they have fewer legal protections in the event of retaliation against even informal organizing efforts.

Independent contractor status also affects porn workers in ways that extend beyond the letter of the law. Employers and workers alike make a host of often inaccurate assumptions about legal entitlements based on what they assume being an independent contractor entails. Though producers are legally required to secure production insurance, few do, and this gives workers little recourse in the event of on-set injury or infection. Even in uninsured workplaces, workers are entitled to make workers’ compensation claims against their employers but rarely do. Standard industry rhetoric maintains that the nature of porn work makes identifying the precise cause of (and hence the party responsible for) a work injury difficult, but employers escape financial responsibility even for those injuries that are plainly traceable to a particular set. In one extreme instance, veteran performer Prince Yahshua sustained significant injury to his penis during a scene. The injury required $120,000 in surgery and follow-up care that left Yahshua out of work during his months-long rehabilitation. He covered these costs out of pocket save for a $20,000 check the production company sent of its own accord. When asked why he chose not to file a workman’s compensation claim, Yahshua pointed to his independent contractor status. He added, “It worked itself out,” noting that he has since continued to work consistently in the industry.¹⁶ Other workers who reported having been injured on set suggested that paying medical costs out of pocket was a small expense in comparison to the wages they would surely lose had they filed a claim.

In spite of the various ways independent contractor status can increase profit for employers and vulnerability for workers, most workers do not identify establishing employee status as a priority, and many have found ways to make the independent contractor status work for them. Performers find tax and legal benefits associated with incorporating their own names and brands—a number of performers are their own LLCs—which is not possible for employees.

On a more abstract level, performers report that they prefer the idea of working for themselves, perceiving that this affords them greater autonomy as they negotiate schedules, wages, and work tasks. Independent contractor status may give workers more freedom to seek out alternative income streams, another way performers can be understood to be creatively precarious.

Adult film performers are skilled at diversifying income streams, a strategy that has become increasingly important as both performance rates and casting opportunities in film diminish. In addition to the satellite industries we previously outlined, performers maximize their incomes by creatively monetizing quotidian moments of their lives: they sell their used underwear, make money while sitting in Los Angeles traffic by charging fans for a cell phone chat, and command fees for opening their birthday parties to the public. Performers also make marketing opportunities out of the mundane, sharing Twitter photos of their morning showers, fitting DVD signings into family vacations, and engaging fans as they watch favorite sports teams. Though these opportunities could be read as discomfiting evidence of the market’s encroachment into even the most intimate spaces of workers’ lives, they could also be said to represent workers’ creative strategies for negotiating precarity. Part of what we find so instructive about porn work is that both things are undoubtedly true.

The Amazon “wish list” is a nearly ubiquitous feature on performer web sites and social media. Performers invite fans to buy them lingerie, sex toys, and cosplay gear, but also novels, records, and daily essentials such as vitamins and shampoo. Performers self-consciously use wish lists as a means to supplement unpredictable earnings and, sometimes, to compensate for payment they feel production companies wrongly withhold. Gay porn performer Conner Habib offered this explanation to his Twitter followers: “Why is it okay for porn stars to have wish lists? [Because] we don’t get royalties even though studios get our images forever.”¹⁷ Other performers have suggested that they find it hard to be too concerned with piracy when sales only enrich production companies. Were residuals and royalties standard practice, performers might make more of an effort to encourage fans to “pay for [their] porn,” as the industry slogan goes. As it stands, it may be more efficient for performers to leave antipiracy advocacy to employers and focus their marketing efforts on the alternative income streams for which their porn performances serve as advertisement. Performers are acutely aware of the areas in which they have power, and they manipulate them brilliantly.

Facing the threat of retaliation and legal barriers to formal organizing, porn workers devise creative methods of not only individual but also collective resistance. We caution against a view of labor organizing that recognizes only those forms of action legible in law and mainstream union movements. Apart from various unsuccessful attempts to join the Screen Actors Guild, porn-worker organizations have not, for the most part, sought to replicate a labor union model.¹⁸ Instead, they focus on mutual assistance, information sharing, and education. Club 90 in the early 1980s served as an education and support group and inspired an off-Broadway play in which Club 90 members performed.¹⁹ Led by Nina Ha®tley ²⁰ in the late 1980s, the Pink Ladies’ Social Club served as a support group but also a space in which performers shared material information about rates, working conditions, and which bosses were best to work for. Under Har®tley, a trained nurse and veteran performer, the organization provided health information, educating performers about which sex acts posed the greatest risk of sexually transmitted disease transmission, safer sex methods, and the signs of sexually transmitted infection. Ha®tley has continued to play a key role in industry organizing, and held a leadership role in the Adult Performer Advocacy Committee.

With a series of on-set HIV transmissions in 1997 and 1998, performers again came together to emphasize health in their organizing efforts. Founded by former performer Sharon Mitchell, the Adult Industry Medical Foundation (AIM) served as a centralized testing and treatment clinic and provided a space for performer education, offering the video primers Porn 101 and 102 to new performers curious about how to negotiate rates, STI risks, consent, and financial matters such as the importance of paying your taxes in a state where it is legal to have sex on camera. The Erotic Entertainers Guild (1997) and Adult Performers Union (2003) focused on establishing a wage floor and continued to push for performer-centered healthcare protocols. These organizations have been short-lived, due in part to industry management’s consistent harassment of the workers involved. Ha®tley explained, for example, that even Pink Ladies’ Social Club, hardly a militant organization, drew management retaliation: “We were instantly branded as lesbian unionizers and barely worked for six months.”²¹

Fear of management retaliation may partially explain more recent groups’ special efforts to distance themselves from labor unions and any suggestion of labor-management conflict. The Adult Performers Association (2011) made explicit that “everyone in the industry will benefit from our research and efforts [emphasis added],”²² but its leaders, Nica Noelle and January Seraph, were nonetheless subject to harassment and threats.23 The Adult Performer Advocacy Committee (APAC, established in 2013 and still operating) has similarly positioned itself as a voice for performers, but one not in conflict with industry management. Reviving AIM’s educational tradition, APAC produced an updated version of Porn 101, introducing new performers or those just thinking about going into porn to topics ranging from sexual health to contract negotiation. APAC has met with greater institutional support, with the porn industry’s trade organization (the Free Speech Coalition) initially offering meeting space and legal counsel and its trade magazines disseminating APAC’s press releases. This level of support may owe to APAC’s leadership, which includes top performers in the industry, many of whom also hold management roles.

Citing parallel features, including competition among workers, the transience of the workforce, the reality that workers hold multiple positions simultaneously, and management’s concentrated power, industrial relations scholar Gregor Gall suggests that craft organizing of the sort Dorothy Sue Cobble describes in waitresses’ unions might allow for organizing in the porn industry.²⁴ An additional challenge of organizing porn work is the frequency with which those involved shift between management and worker roles. In addition to pursuing various satellite industries (and making new subindustries of their own), porn workers resist precarity by shifting between the roles of manager and worker. After a short time in the industry, most performers will have at least dabbled in management, producing content for their own web sites or clips stores, working as directors for established production companies, or starting production companies of their own. This fluidity challenges the strict class divisions that have been central to state, activist, and academic approaches to labor organizing. That performer groups can consist of worker-managers does not nullify their organizing work, but it no doubt affects the organization’s perspective and priorities. Seeking a purer organization untainted by management interests misses the point, though, because the potential to shift between worker and manager roles is indispensable to workers seeking control over labor processes.