After going to a meet and greet this weekend, I needed to write this latest post. When I showed up, there were several models who were under the age of 18. This class of model is classified as an under aged model, and there are special considerations when you are an under aged model. With models like Thylane Loubry Blondeau, a ten year old, who has been published in many fashion magazines and advertisements, you may get the wrong idea of what you can and can’t do as an under aged model in the United States. Older people may recall Dakota Fanning causing the same type of stir, and pushing the bounds of acceptable work. Then there are others like Web Web in Florida that was the largest child modeling agency in the US. They often had child models posing in skimpy bathing suits and lingerie in very provocative (and sometimes revealing) poses. They were shut down in 2006 when the owners were pursued in child porn charges. During subsequent interviews with the parents, they were unaware of the images taken of their children during the photo sessions. A similar type of activity occurred with A Little Agency child model agency.
The first and foremost consideration is making sure that a photographer will work with you. Why wouldn’t one work with you? The reason is that there are a lot of protections put in place for people who are under the age of 18 by the federal government. These are put in place to protect the under aged model. Most photographers will refer to these as the “Child Pornography” laws (18 USC 1466A, 18 USC 2252, 18 USC 2256, Child Pornography Prevention Act of 1996, Adam Walsh Act, and PROTECT ACT of 2003). They dictate that you have a parent or designated guardian present during a photo shoot (in most states). They also have a provision in them that restricts the outfits and posing you can do: both must be age appropriate to the community standard. That standard is hard to establish, but just about anything in lingerie or similar undergarments and provocative posing wouldn’t be allowed no matter where you live. We will cover this a little more further on in the article. Know that many photographers won’t want to deal with the hassles involved with dealing with under age models. Some will. Make sure you have a photographer willing to deal with you being an under aged model. Be up front and don’t lie about your age to work with someone. There is nothing worse than all the images being sealed away and not able to be used by anyone because you, the model, wasn’t up front about your age and this was found out after the fact. Know that there are other restrictions with under age models, including the number of hours per week you can work, and other normal work related child labor laws.
The next consideration is determining if there is a market for your images. Child models have been used as art models throughout the centuries, and I am sure this will consider for some time. As for fashion, this depends on the area you live and what kinds of designers are around your area. Here in Indianapolis, this is limited to mall shows and maybe an occasional store. There are also photo contests and beauty contests (pageants). As with other modeling venues, there will also be scammers out there trying to take advantage of you. Real agencies won’t require any up front payments, special training, or specific photographers to use. Another indicator of a scam is promises of paid work as a model, or focus on billable products or services to you.
The last thing to consider is what you will be doing as a model, and matching that to the market that is available. This is simply figuring out what you want to do and not do, then work to get that part of the market to accept you as a model. Pay for the different areas start at nothing and can be as high as $2000 per day (very, very few models make $2000 per day). Typical mall and retail stores won’t usually pay anything – if you are lucky, you may get a discount on purchases of clothing. If you sign with an agency, they will typically take from 15% to 25% of the earnings you make as a model.
As I mentioned earlier, child porn is a big issue that you will have to deal with to some degree – from being aware of what it is to actual attempts at child porn. As a photographer, I don’t go anywhere near anything that would be considered child porn. But, this isn’t always good enough. There are many good photographers who have taken images that would be considered child porn by the legal standard, even though the model wasn’t nude and the intent wasn’t to create anything considered child porn. In 1996, there was a six point test to determine if anything was illegal in the US vs Dost case. From then on, it is referred to as the “Dost Test”. These were identified as indicators of child pornography during the case. Not all must be present nor is this inclusive of everything considered in child pornography. The six points follow:
a) Whether the focal point of the visual depiction is on the child’s genitalia or pubic area.
b) Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity.
c) Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child.
d) Whether the child is fully or partially clothed, or nude.
e) Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity.
f) Whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
As you can see from this, the more of the points that are met, the more likely you have child porn. As a suggestion, if you find yourself doing any of these (or your son or daughter), it is best to stop the shoot before it goes too far. You don’t want to be involved in the mess and recourse that would result. Keep these points in mind and use it as a guideline during the shoot. Know that any under age model found to be pornographic is a violation of the law (real or simulated or implied), and that the created images themselves do not have to be obscene (look for information on the Miller Test for this determination). In 1982, in New York vs Ferber, the Supreme Court determined that child porn, even if not obscene, it still isn’t protected under the First Amendment or freedom of speech.
As always, if there are any comments, corrections, suggestions to this post, please send them my way.
XOIND Studios Blog 
W James Hunter
November 20, 2011
This is an issue I continue to attempt to educate photographers in my local area and sphere fof influence. Should be a no brainer… Thanks for a well written article…
hollygordonphoto
November 22, 2011
This is the definition of child pornography that I found in TLE 18 > PART I > CHAPTER 110 > § 2252A:
(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;
Are there other legal definitions out there that add to this definition? Please cite where you found the information that states, “They dictate that you have a parent or designated guardian present during a photo shoot (in most states). They also have a provision in them that restricts the outfits and posing you can do: both must be age appropriate to the community standard.”
XOIND Studios
November 22, 2011
Thank you for your comment, Holly.
There isn’t just one law. There were several federal laws mentioned in the blog. There are also state and local laws. Add to this, actual court decisions that interpret the laws and define them.
You will find that in most federal courts, the DOST Test is used as a six factor guideline to determine if something fits into child porn, specifically for 18 USC 2256(2)A (“lascivious exhibition of the genitals or pubic area” – which wasn’t mentioned in your comment but does apply). I have listed the six factors in the blog post. It was developed during the case United States vs Dost in 1996 about nude and semi-nude images of children 10 to 14 years old. I don’t remember the specifics of that case but believe it was when Mr. Dost mailed in film to a photo processing company, and the company turned the film over to law enforcement. I cited a couple of other federal laws that also are related to this in the blog. There are many cases tried in courts that further define the laws such as Knox vs United States where you can see the DOST Test applied to non-nude video taping and something that you wouldn’t think is covered under the law you cited but is being tried under it. There is also the Miller Test here in the US (obscenity testing). In Wales (and probably all of England, too), there is the SAP Test. Each of the 50 United States also have different laws – you can’t plead ignorance to any of them. For your specific location, you will want to consult with an attorney qualified to practice law who also knows the cases that define those laws. They should be familiar with federal laws, state laws, and local ordinances where you are located or where you are shooting your photography. They will give you your best answer. My point in mentioning these is that it isn’t just the laws that have been created, but also their application in the courts and what the courts say they mean (such as the link above – it defines some of what the law you provided means). It isn’t just what is written in the laws, but also how they have been applied in actual court cases.
The requirement for having a parent or guardian present during a photo shoot applies to local states or may have been a locality. I don’t remember which specific state this was for where I started requiring this as I shoot in many states. I do this as a least common denominator (safer to do and not need, than not do and need to have been done and facing prosecution). This is why you need to talk with a lawyer at any location you are shooting and find out. And yes, laws do vary from state to state. For instance, in Alabama, the age of majority is 19 years old. This means if you work with someone who is 18 years old in Alabama, they are a minor or under aged model. Always check with an attorney who knows.
EDIT: All the sites that have underage models pretty much indicate that a parent or guardian present at the shoots if you use those sites.