What's the Difference Between Porn and Prostitution?

Porn stars get paid to have sex. Prostitutes get paid to have sex. But porn is legal, and prostitution is not. And now porn stars are letting fans pay for the chance to have sex with them on camera. What is going on?

On November 1, the website ​​​Adult Verified Video Chat​​ announced that it was auctioning off the chance to appear in a scene with popular porn actress ​​Dillon Harper​. While the ​auction page doesn't blatantly state that the winner will have sex with Harper, it is implied by certain requirements. The winner must undergo industry-standard, third party testing for sexually transmitted infections (STIs) as well as submit two valid forms of government-issued identification in compliance with​​ ​2257 regulations​, part of the US's stringent record-keeping stipulations imposed upon pornographers.

In fact, there are quite a few rules for entry. A spokesperson for Adult Verified Video Chat told VICE that the age requirement for the auction caps at 50 because "that was one of Dillon's requests." The winner also has to provide his or her own transportation to Las Vegas, where the scene will shoot in late January.

It's the second adult film role auction that Adult Verified Video Chat has hosted; the ​first​ gave bidders a chance to star with squirting queen ​Cytherea in August, and a spokesperson for the site said they hope to start hosting multiple auctions per year.

While at first glance the concept of someone bidding thousands of dollars (the Harper auction's opening bid was $2,500—and hasn't changed, at the time of publication) to have sex with a porn star in front of a video crew might seem like prostitution, adult industry experts say it's not.

"If Tom Cruise auctioned off the ability to appear in his next movie, what the winning bidder gets is the opportunity to star in this movie. That's what they are winning," Las Vegas-based adult industry attorney Marc Randazza told VICE.

Randazza explained that the differentiation between pornography and prostitution generally refers back to a 1988 California Supreme Court case, People v Freeman. The Freeman decision basically found that although porn performers are ostensibly paid to have sex, they really aren't; first, they are paid for appearing in a film.

Another basic tenet Freeman established is the direction of payment. Porn stars aren't doing prostitution, according to the California Supreme Court, because they are paid by a third party rather than by the person they are having sex with. OK, so then wouldn't that cover garden-variety pimps and madams? Well, no.

Apparently, professionalism plays a big role in the legal differentiation between paying for sex and paying for the chance to have sex on camera.

Randazza told VICE that people have tried in the past to justify prostitution by throwing in some cameras, but it just doesn't work that way.

"I get a call once a month from somebody who decides that they have found the magic way to harness the power of Freeman to run a brothel," Randazza said, "And it's always a guy wearing a fucking undershirt who should be on Jersey Shore or who looks like the guy who did the 4Chan murder. It's always some creepy dude."

In order for that special blend of Freeman and constitutional freedom of expression to apply, a person has to be able to show that a paid sexual performance was for the purpose of distribution—and not just for jollies.

"It goes down to the intent of the act," said Randazza, "If I say to you, I will pay you $1000 to come over and have sex with me and will throw a video camera in the room to prevent you from being charged with prostitution, then it's clear what that is."

But not only is it perfectly legal to bid for a role in a porn shoot, it might be the new crowdfunding model—used by both ​journalists​ and Hollywood ​filmmakers​—needed to raise porn stars' deflated incomes back up to pre-recession levels. Adult Verified Video Chat spokesman Randy Johnson (a pseudonym) told VICE that the economic downturn forced into the industry a new, and constantly growing, influx of performers willing to do anything to make ends meet.

"These new performers are happy to do the job that is being done by veteran performers at a rate less than standard," Johnson told VICE. "This hurts the rates of veteran performers because production companies can work with new talent at a lower rate, forcing veteran talent to look for fun new creative ways to increase their revenue stream."

The mainstream porn scene might have taken some inspiration from ​freakier porn crowdfunding site OffBeatr, which lets users fund projects like adult My Little Pony-sex comic book Poni Parade.

But even crowdfunding isn't bringing in the kind of big bucks that porn performers saw in the past. Cytherea's winning bid was only $3,500, which doesn't seem like much for knocking boots on camera. But according to Mike Kulich, co-founder of porn startup site ​SkweezMe.com, that's now considered an "outrageously high number."

"The average boy/girl scene rate nowadays is less than $1,000 unless you are a brand-name performer with hundreds of thousands of Twitter followers," Kulich told VICE, "What Adult Verified Video Chat is doing is providing a great service to the women of our industry not only as a marketing tool, but offering them the ability to rake in the monetary equivalent of four professionally shot scenes in one shoot."

Kulich said compensation has also fallen due to piracy and the fact that a majority of porn consumers simply aren't paying for it; instead, they're getting off by watching videos on "tube" sites that aggregate existing content.

Like anyone who works in media, porn actors are increasingly becoming entrepreneurs. As big name studios shutter and cheap talent floods the industry, performers are turning to in-person appearances at conventions like this weekend's ​Exxxotica Expo​ in New Jersey, and to selling content and other material online.

"What we provide is just that a way for talent to connect with their fan base via private one-on-one video chats, purchasing custom videos, or articles of clothing that performers have worn in popular video scenes," Johnson told VICE, "Also, we do one thing 95 percent of production companies never do: we give them the right to post their scene on their own website or use it for future sales."

Follow Mary Emily O'Hara on ​Twitter.