Question: What is child pornography?
Answer: As defined in 47 U.S.C. 2256:
"child pornography" means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct; or
(D) such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.
Many courts apply the so-called Dost test to determine if a given image is considered to be "lascivious" under the statute. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) set forth a six factor test:
(1) whether the genitals or pubic area are the focal point of the image;
(2) whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity);
(3) whether the child is depicted in an unnatural pose or inappropriate attire considering her age;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the image suggests sexual coyness or willingness to engage in sexual activity; and
(6) whether the image is intended or designed to elicit a sexual response in the viewer.
See Dost, 636 F. Supp. at 832.
(Found on Google)
Number 4 would comply as one of the factors.