Men Tricked into Participating in Bizarre Tickling Videos Have No Legal Recourse

This is the first hint that Jane O' Brien isn't your run-of-the-mill softcore fetish provider. Others come quickly thereafter: After Farrier begins investigating the company, O'Brien sends three of its henchmen to New Zealand to intimidate him. Eventually, it's revealed (spoiler!) that the shadowy organization is run by a former convict named David D'Amato who seems to get a contact high from destroying the lives of the men who participate in his tickling videos. D'Amato—who sometimes goes by the alias TerriTickle, according to one of multiple lawsuits—was previously convicted of computer fraud for spamming students at several US universities, notably James Madison University and Suffolk University, in an attempt to find students to participate in paid competitive tickling on camera.

Tickling is about as pleasant as having water thrown in your face, so it's relatively plausible someone would see an ad for paid "competitive endurance tickling" and think, Wow, now THAT's what I call a tough challenge! TJ, a participant who appears in the film, was stoked when he found out he could be paid serious dough to get tickled.

"I was young at the time, and I thought, OK, $2000 or whatever? This is gonna be cool," TJ says in the documentary. One of his family members was being treated for cancer, and he was desperate for cash. He was pretty sure he wasn't about to appear in a porno; the producer said he wanted to see if tickling could be used as a military tactic.

Things escalated quickly after he arrived at the LA studio. First, he was promptly strapped to a bed. Then, four buff, Adidas-clad men did the tickling: One sat on his chest and tickled his armpits, another worked his inner thighs, and two more swept his feet with hairbrushes.

When TJ realized, too late, that his video was intended as erotica, he "kind of freaked." He hoped video of his encounter would never get out. When it did, he requested it be taken down from YouTube. (Besides the gasping and giggling, there was some embarrassing philosophical rumination on the nature of tickling itself.) That's when "all hell broke loose."

D'Amato's motivations aren't ever fully fleshed out; the filmmakers never gain the necessary access, aside from a brief run-in on the street and a recorded conversation with a relative. But the film makes it clear that D'Amato enjoys the power of controlling potentially humiliating material. When TJ attempts to remove his tickling video from YouTube, D'Amato responds with a curt email that read, "I don't think you grasp the magnitude of what you've provoked." He then posts video of TJ being tickled and begging for mercy on user-submitted porn sites like GayTube, as well as Vimeo and Google+. He even creates a website with TJ's home address, links to his social media accounts, and his phone number. By the end of the film, the laughter heard on the video and others sounds more like the soundtrack to a horror film.

While many reviewers have noted the irony that innocent tickling could serve as a front for such sinister acts, the legality of D'Amatto's actions remains unexplored. Watching the film, it's hard not to wonder why revenge porn laws couldn't protect these men. After all, they're being shamed by the release of sexually explicit material, which is exactly the exploitative scenario these laws are meant to guard against.

In an interview with Broadly, David Farrier, who also served as the film's director, explained that many of the men he spoke to received no help from the police. "Generally, those who were not happy with the ways their videos were being used had no idea where to turn," Farrier told Broadly. "Some of them went to the police, and were told nothing could really be done."

In other cases, the tickling videos were leaked without the performer's consent: Farrier details an instance in which a performer believed his video would only be seen in-house. The nonconsensual release of a fetish film would seem to be a clear violation of revenge porn laws—until you realize that the law only protects subjects from the release of nude and obviously sexual media (i.e., blowjobs or anal). In other words, even if you're performing what is totally, definitely erotic foreplay, in most states you can't pursue justice under these laws unless you're fully nude.

Still, there are other legal avenues the wrongfully tickled could pursue. According to Dr. Mary Anne Franks, a law professor who helped write many of the revenge porn laws currently on the books, ticklers screwed over by D'Amato could make a publicity rights claims, arguing that their image has been misappropriated. She gave an example that involved a lactation fetishist.

"There was a case a few years ago where a woman agreed to be filmed breastfeeding her child, and she was told the clip would be used for a breastfeeding instructional video," Franks told Broadly. "It showed up on a website that fetishized breastfeeding moms. Thankfully, in California, they do have a pretty good appropriations statute that says you can't trick people into doing something that you didn't fully inform them about."

I asked her about the recourse available to straight men who unwittingly participate in gay porn; at least a few of the ticklers in the film said they initially believed Jane O' Brien's claim that what they were filming was a "passionately straight endurance activity." Franks likens it to cases in which adult actresses are told they'll be participating in simple sessions like vaginal intercourse with one guy, "and they get there and it's ten guys, or anal sex, or something else they didn't want to do."

"They pretty much don't have any meaningful outlets," Franks said. "If we're talking about revenge porn laws, they don't apply, because there's a specific requirement that the images were private."

That said, Franks believes the fact that the competition wasn't sold to participants as fetish-oriented could open up the opportunity for them to pursue fraud claims. She also thinks the motivations of D'Amato could sway a court. "There seem to be many individuals who think it's really important that no one ever forgets that this person did this one thing," she said, "and from what you're telling me about this guy, this is a person with a pretty serious problem."