The Naked Truth on Nudity in Film

As a kid I spent 12 years in Catholic schools, and the idea of a naked woman, not to mention sex, was about as taboo as it came. The adults around me would prefer to talk about just about anything as long as it wasn’t XXX. One of my most formative film memories is as a 9-year old, forcing myself to stay awake until two in the morning at a friend’s sleepover so we could watch a softcore porn—and man, my world changed when I watched this piece of fluff called Felicity. I looked it up recently on IMDB, it was made in 1979 and the summary states: “Young Felicity lives in a monastic school. The only way to live out her sexual fantasies is together with her girlfriend Jenny. But then she receives an invitation to her sister in Hong Kong and can't wait to finally do the real thing.” That’s pretty much how I remember it, and for better or worse, Felicity was a touchstone.

Let's face it—sex sells! The independent film market is extremely competitive and a simulated sex scene or two could be just what your film needs to bring today's reluctant filmgoers into theaters. The amount of socially allowable sexual content in film today puts the softcore pornography of yesteryear to shame. And with video on demand becoming more prevalent, independent films are often in direct competition with pay-per-view skin-flicks. That's plenty of reason to include some good ol' full-frontal into the coming-of-age-as-an-aspiring-artist-in-the-Mission film you're undoubtedly working on right now.

But a filmmaker has to clear a few hurdles in order to partake of today's more permissive standards for nudity and sexual content in films.

In the early days of nudity in non-pornographic films, actors and actresses were not always told what they would be revealing on set or on the screen. For example, Sharon Stone claims she didn't know she would be the star of the most infamous moment in film nudity history when she crossed her legs in Basic Instinct. Consequently, today's actors and actresses want to know exactly they will be revealing and/or what sexual acts they will be simulating before they get to the set and before their grandmothers keel over in horror.

Thus each actor who will appear nude in your film must consent in writing prior to the filming of the scene. This generally takes the form of a “nudity rider” that is appended to the actor's regular cast member agreement, but consent may be given in a letter or another written instrument. The Screen Actors Guild only requires that the written consent include a general description of the nudity and physical contact required by the actor, but today's actors generally want a detailed description of what they will be asked to do.

Nudity riders can get more complicated in certain circumstances. Many actors will want to make sure that all nude footage not used in the final theatrical release is destroyed. They may also want the right to review dailies of nude or simulated sex scenes and even a right to reject certain cuts or withdraw consent for entire scenes.

Actors must also give their written consent to the use of a body double for nude scenes and simulated sex performances. In the event that an actor who previously consented to appear nude withdraws that consent, a filmmaker has the right to substitute a body double for the actor. But an actor cannot withdraw consent once the scene has been filmed.

The Screen Actors Guild has a few additional regulations regarding nudity in film. Filmmakers must notify actors or their representatives of any nudity or simulated sex acts expected of actors before initial interviews or auditions. Moreover, actors may not be required to be fully nude during auditions.

Access to the set during filming of nude scenes is limited to personnel with legitimate business purposes connected to the production. Fortunately, this restriction doesn't apply to me. I highly recommend having your legal counsel present on-set to supervise nude scenes to ensure everything is OK.

No still photography of nudity or simulated sex acts can be authorized by filmmakers without the consent of the actors involved in them.

One thing independent filmmakers do not have to worry about is Section 2257, which requires producers of media which contains depictions of “actual sexually explicit conduct” to keep records of performers' names, aliases, dates of birth, etc. Section 2257 is designed to crack down on underage pornography and doesn't apply to the tastefully simulated sex scenes of independent films. Wait—we are talking about simulated sex scenes here, right?

So, it is very important when shooting things of an adult nature that agreements are clear and that you are compliant with the law. This is important if you are planning on making that tasteful piece of erotica that eventually will be consumed by the next generation of repressed Catholic schoolboy.

And please, PLEASE, film festival programmers, lets get Felicity on the big screen!

Thanks to my intern Ryder Johanson for helping me with this article. I’ll have to order him a Blu-ray of Felicity as a thank you.