Pierce Law Group LLP Q&A
We are pleased to announce that on Sept 4th, Governor Newsom signed into law a clean-up bill for AB-5 (known as AB 2257) that was introduced by Assemblywoman Lorena Gonzalez (the original sponsor of AB-5 which was previously codified as Labor Code Sec. 2750.3). AB 2257 (which is now codified as Labor CodeSec 2775 – 2787) repeals and replaces AB-5 with new language that among other things recognizes a number of new exemptions to the Dynamex Test. This new clean-up bill takes effect immediately and applies retroactively.
While still recognizing the Dynamex Test in most situations, the clean-up bill now simply returns the long standing Borrello test as the means for determining whether the new specially carved out occupations should be deemed “employees” or “independent contractors” under California law. Among the list of newly recognized exemptions is an exemption for performers that appear at live venues in California.
In February, Managing Partner David Albert Pierce and our comedian client Stephen Kramer Glickman met with key legislators, including Lorena Gonzalez, the original sponsor of AB-5 about the compelling need for this exemption. In May, David Albert Pierce was granted the ability to be heard before the counsel for the Labor Commissioner as that office was preparing its opinion on this matter.
Pierce quipped, “Now perhaps Uber & Lyft drivers should start telling jokes.”
Read more about the big win on our website here and the original letter we sent to legislation that kicked off our lobbying efforts here!
David Albert Pierce leads discussion on the State of Production Amidst COVID-19 Pandemic at USC Entertainment Law Symposium
On October 17, 2020, the USC Gould School of Law – in conjunction with the Beverly Hills Bar Association – held the 61st Annual Institute on Entertainment Law and Business Symposium. This year the event was held virtually via Zoom. This prestigious event was a huge success. It was a sold out event and had a wide array of speakers including Keynote Speaker Ann Sarnoff, Chair & CEO of WarnerMedia Studios!
Pierce Law Group LLP Managing Partner, David Albert Pierce, served as a Moderator and Speaker for a panel entitled “Counseling Clients in the Wake of the COVID-19 Pandemic.” The other speakers on the panel included attorney Bianca Goodloe discussing film financing issues and the effects of COVID-19, attorney Larry Verbit discussing COVID-19 protocols and policies for returning to production, insurance broker Nora Ferris discussing insurance issues in the entertainment industry, and Chip Luman of AtlasID discussing the “How To’s” of lab testing and collections for film and TV productions.
In addition to Pierce’s panel, USC Professor Jeffrey Cole gave his annual predictions about the future of the entertainment industry; Rhonda Hjort, Adam Levin, MyKhanh Shelton, and Mary S. Ledding spoke about bias in the workplace; and renowned entertainment lawyer Bruce Raymer interviewed Ann Sarnoff as the Keynote event of the Symposium.
The Symposium hopes to return to its live format next year (pending the status of the pandemic).
Pierce Law Group
Upcoming Speaking Engagements
David Albert Pierce will be moderating a BHBA Entertainment Law Section webinar on International Film Financing Issues with lawyers from the UK, Italy, and China on this fall/winter. The program will be virtual via Zoom and is presently set for Thursday, November 12, 2020 at 4 pm.
David Albert Pierce commenced his 21st year teaching his 10-week UCLA Extension Course titled “Starting Your Own Entertainment Production Company.”
Over the years many of David’s students have gone on to incredible successes, most notably Jason Blum of Blumhouse Productions, as well as, actress/producer Bryce Dallas Howard.
This year’s class is held every Monday night via Zoom and includes students from all over the world.
Pierce Law Group’s Associate Attorney Joshua Lastine has once again commenced his class titled, “Entertainment Business Law 101” at the Los Angeles Film School.
Joshua addresses the basics of the legal system, while concentrating his focus on how the legal world interacts with the entertainment industry.
Halloween at Your HAUS
24-HR Celebration & Fundraiser
Pierce Law Group LLP client Fear Haus is having a 24-hour live streaming Halloween celebration and fundraiser that will be streamed on Twitch, Facebook & YouTube. Fear Haus is a horror media and lifestyle brand based out of Atlanta, Georgia. They find and curate independent horror films around the world and create original series, events, and films. See more info about them here!
For this event, known as “Halloween at Your Haus,” Fear Haus has partnered up with charities that include World Central Kitchen, Artist Relief, and CERF+. World Central Kitchen was founded by celebrity chef José Andrés and uses the power of food to heal communities and strengthen economies in times of crisis. Artist Relief distributes $5,000 grants to artists facing dire financial emergencies due to COVID-19, in addition to other efforts that will assist in identifying and addressing the needs of artists. CERF+ – also known as The Artist’s Safety Net – is the leading nonprofit organization focused on safeguarding artists’ livelihoods nationwide.
Halloween at Your HAUS 24-hr broadcast will include a lineup of horror short films from 70+ countries, celebrity appearances, costume contests. Find out how to support creators and get spooky on 10.31.2020 here!
Watch on Facebook
Watch on Twitch
Watch on YouTube
Virtual Costume Contest Featuring DOGGFACE208!
Enter Costume Contest
Industry Wisdom:
A look at some recent intellectual property cases affecting the entertainment industry
Copyright Ruling Supports Artist’s Creative Freedom to Incorporate Works of Others When Still In Development & Not Intended For Commercial Release
Tracy Chapman v. Onika Tanja Maraj p/k/a Nicki Minaj (U.S.D.C. Central California)
On Thursday, September 17, Judge Phillips of the United States District Court for the Central District of California rules that Nicki Minaj did not engage in copyright infringement in her unreleased song “Sorry,” in which she samples Tracy Chapman’s song “Baby Can I Hold You.”
Chapman claimed that Minaj never got her permission. However, Minaj stated that while she incorporated the sample in an experimental song she had not released it for commercial exhibition. The inadvertent release of the song by others could not be attributed to Minaj.
Judge Phillips agreed and ruled in favor of Minaj citing the fair-use doctrine. The court held: “Artists usually experiment with works before seeking licenses from rights holders and rights holders typically ask to see a proposed work before approving a license… a ruling uprooting these common practices would limit creativity and stifle innovation within the music industry.”
Disney Looks to Hold Onto ‘Avengers’ Profits in Dispute Over “Stolen” Technology
In this long-running lawsuit, Rearden, a Silicon Valley company, asserts that Paramount, Disney, Fox, and other large studios used their facial recognition technology which is befitting of copyright protection in that it is an original work of authorship fixed in a tangible medium of expression when stored on computer hard drives. Thus, Rearden looks to hold the studios vicariously responsible for infringement. Meaning that since Hollywood had the right to supervise its vendors, Disney is partially responsible for what’s on their vendors’ computers.
This is an ongoing case in which Disney has filed a motion for dismissal stating that damages are too remote and uncertain in that Reardon can’t establish a nexus between the use of software and why consumers are buying movie tickets – thereby stating that profits from movies like the Avengers should not be owed to Rearden. Rearden is expected to file a brief in opposition soon.
Unicolors v. H&M Hennes & Mauritz
Unicolors, Inc. creates garment designs. Before printing the designs onto fabric and marketing to manufacturers, the company registers their artwork with the copyright office. After registering one pattern with the copyright office, the company discovered that the domestic clothing retailer H&M had begun selling clothing featuring their artwork. Unicolors sued H&M for copyright infringement. The court initially found in favor of Unicolors, however on remand, H&M sought to overturn the judgment on the basis that Unicolor’s copyright application was inaccurate.
The Court of Appeals reversed and remanded the District Court decision in favor of H&M. While the artwork H&M used was copyrighted by Unicolors, Unicolors knew there were inaccuracies in the copyright application. When there are known inaccuracies in a copyright application, a district court is required to submit a request to the Register of Copyrights to advise the court whether the inaccurate information would have caused it to refuse registration. This did not initially happen, thus leading to the court’s reversal.
Sinclair v Davis
Plaintiff was a photographer who sued Mashable for using her photograph which she had posted to Instagram. The District Court dismissed Plaintiff’s claim for failure to state a claim. The Court reasoned that by posting her photo to her public social media profile, Plaintiff consented to Instagram’s Terms of Use and Privacy Policy, empowering Instagram to grant sublicenses to other users. Instagram’s terms of service specifically grant Instagram “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable.” The Privacy Policy provides that all content posted to “public” accounts, such as plaintiff’s account, were searchable by the public at large and subject to use by others through Instagram’s application program interface (“API”).
Tresona Multimedia v. Burbank High Vocal Music
Teachers and students at Burbank High School – the high school that inspired the acclaimed television show Glee – used a small portion of the song ‘Magic,’ along with portions of other songs, to create sheet music for a new and different high school choir showpiece performance. The licensing firm that owns the rights to the songs sued teachers, the student club, and the public school for the unauthorized usage of the songs.
On appeal the Court affirmed that the usage was transformative by nature of the use and the work’s nonprofit educational purposes in enhancing the educational experience of high school students,” Going even further, the appeals court said Burbank should be reimbursed the attorney fees it spent defending the case. The court said it was punishing “an overzealous monopolist” for trying to “stamp out the very creativity that the Copyright Act seeks to ignite.”
Daniels v Walt Disney Co.
Plaintiff sued Disney alleging that the characters he created in his film depicted by different color correlating to different moods in humans was infringed with the movie “Inside Out.”
The Court held that there was no copyright infringement because plaintiff did not meet the standard for copyright-ability. The Court explained that copyright protection also extends to characters that constitute the story being told in the work, but a character is not copyrightable under the test where the character is the only definitive feature of the work.
Melissa Jefferson v. Justin Raisen et al
In 2019 Melissa Jefferson, widely known as Lizzo, sued Justin Raisen, Jeremia Raisen and Yves Rothman asking the Court for a judicial declaration stating the three did not have the right to co-own or share profits of her hit single “Truth Hurts.” The Defendants responded to Lizzo’s suit with a counter suit alleging that Lizzo did not give them credit where due as “Truth Hurts” was based upon the song “Healthy” with Lizzo and Defendants co-wrote.
The Court ruled in favor of Lizzo stating, “a joint author of one copyrightable work does not automatically gain ownership of a derivative work in which the joint author had no hand in creating.” Supporting this contention, the Court pointed to the fact that “Healthy” was an independent work and was not a demo for “Truth Hurts.” The Judge ultimately gave Defendants permission to change their complaint with new and different facts by September 4, 2020.
Ban on TikTok Halted
A federal judge has halted the Trump Administration’s TikTok ban, granting a temporary reprieve to the incredibly popular video-sharing app.
See the full article on npr.org.
THE COVID-19 PRODUCTION PACKAGE
LEARN MORE
Restarting production during COVID-19 means extra obligations and new liabilities for producers and production companies. Avoid getting stuck with thousands of dollars in unexpected costs while shooting during COVID-19. Our firm has the resources and expertise to streamline your production.
Contact our Client Director for more information by clicking here.
SLAMDANCE WINNERS
Congratulations to Slamdance Screenwriter Competition Finalists!
The 2020 Slamdance Screenplay Awards were held virtually on October 8th where past winners and Slamdance alumni screenwriters talked about their experiences and celebrated the 2020 competition winners in Feature, Short, Horror/Thriller, and TV Pilot categories!
The finalists & winners are listed below:
Feature:
As You Wish by Suhashini Krishnan
Funeral Season by Jake Hirsch
Sweet Sixteen by Joyce Sherri
Horror/Thriller:
Dying on the Pass by Jackson Birnbaum
Goodbye Lyrics by Daniel Russell
Our Gods Within by Alex Luprete
Watch the 2020 Slamdance Screenplay Awards HERE
TV Pilot:
Below the Fold by Kevin Wolfe
Lifeline by Meredith Casey
Mourning After by Rikki Bleiweiss
Short:
How To Meal Prep During A Famine by Lindsey Ruggles
The Peregine by Justin Giddings
Youth Rejuv by Katherine Voigt
Pierce Law Group LLP has served as a longtime sponsor of the Slamdance Film Festival and the Slamdance Screenwriting Competition for close to two decades!
News You Can Use
Lobbying Congress On Behalf of Independent Film Financiers
The American Coalition for Independent Content Production (ACICP) is a newly established group of production companies, distributors, sales agents, and completion bond guarantors that created a new task force to push for government funding and support in regard to COVID-19’s effect on the industry. The pandemic’s devastating economic impact has hit the production industry hard and ACICP, as well as big entertainment companies, have lobbied Congress to provide pandemic insurance.
Big completion bond companies have also aligned with producers to try and make this a reality. ACICP is encouraging the government to provide both long-term and short-term solutions including liability protection that will provide companies with legal certainty required if they are going to resume production successfully. Read more about the article here!
Without insurance you will not get a completion bond. Without a bond, you will not get financing from most sophisticated lenders. Therefore, self-financed studios and small indie films may still move forward while mid-size budget independent films appear dead in the water.
As of September 21, 2020, SAG-AFTRA as well as the other entertainment unions entered an agreement with AMPTP Member Companies and specified entities to negotiate on terms to move forward and allow production to begin again. For SAG-AFTRA’s purposes, these guidelines include how actors will be tested, the conditions of the set, and terms for financial negotiations. See full guidelines here!
SAG-AFTRA Ratify New TV Animation Contract
SAG-AFTRA members approved a new contract with Alliance of Motion Picture and Television Producers governing work on television animated projects. The new agreement includes notable additions to previous agreements with the alliance including:
–Wage increases of 2.5% in the first year, 3% in the second year and 3% in the third year.
–A 26% improvement in residuals for high-budget animated programs made for subscription streaming services like Amazon Prime and Hulu.
–A further reduction of the budget threshold that triggers high-budget coverage for half-hour animated programs made for subscription streaming services, from $550,000 to $500,000.
–Scale wages apply to non-high-budget subscription video-on-demand programs of 11 minutes and longer with a budget of at least $25,000 per minute.
–A 1% increase in the contribution rate to the SAG-AFTRA Health Plan and optional wage diversions in the second and third years that allow the union to shift 0.5% from the wage increase to the contribution rate for the SAG-AFTRA Health Plan or the SAG-Producers Pension Plan/AFTRA Retirement Fund.
Hand Sanitizer 2
Los Angeles Guidelines on Reopening Protocols for Music, Film, and Television Production
The County of Los Angeles Department of Health has adopted a staged approach to allow Music, Television, and Film industries to re-open safely which creates a checklist covering the following
Workplace policies & practices to protect employee health
Measures to ensure physical distancing
Measures to ensure infection control
Communication with employees and the public
Measures to ensure equitable access to critical services
Read the full guidelines here.
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Federal Family First Coronavirus Response Act
The FFCRA paid leaves allows employees to obtain emergency paid sick leave or expanded family and medical leave for reasons due to COVID-19 by their employer. This covers employers with fewer than 500 employees – you read that correctly, “paid COVID-19 leave for companies with FEWER than 500!” here!
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White Paper’s Recommendations
Lots of testing, protective gear, social distancing and coronavirus safety distancing and coronavirus safety officers are at the heart of recommendations from Disney, Netflix, CBS and other top studios, Hollywood’s leading guilds and producers to get the industry restarted from the pandemic that shut down production in March.
The White Paper’s guidelines (full report here) include procedures recommended for infection control, physical distancing, protecting cast & crew, training and education, casting & auditions, filming locations, minors, and animal performers.
Impact of COVID-19 on Filming in Los Angeles
Even as filming is beginning a slow return in Los Angeles, a new report released on October 14, 2020 reveals the enduring effect of the COVID-19 pandemic on the region’s film, television and commercial production industry. Updated data from Film LA indicate that filming in area communities declined by 54.5 percent year-over-year to muster just 4,199 Shoot Days (SD)* from July through September, 2020. With Reality TV (up 10.3 percent to 1,159 SD) and Commercials (down 41.2 percent to 782 SD) together accounting for 46 percent of all filming on- location, the local film industry’s road to recovery hinges on a planned October restart for scripted Television and Feature projects of scale. See here for more details!
HAPPY ANNIVERSARY
Congratulations Cassandra R. Johnson on her one year anniversary at Pierce Law Group LLP.
Cassandra leads the Production Counsel and Talent Practice Group at Pierce Law Group with a focus on Labor & Employment Law, Intellectual Property, Securities Law and Contract negotiations.
Cassandra is a graduate of Cornell University and University of Pennsylvania Law School.
Don’t Miss This Great Documentary
THE COMEDY STORE
Documentary Series Streaming on SHOWTIME
This 5-part documentary series brings to life the legends, heartbreak and history created at The Comedy Store, which over the past 47 years has launched the careers of a breathtaking array of stars. The director is Comedy Store alum, former stand-up comic Mike Binder who spotlights one of pop culture’s great laboratories with never-before-seen footage and incisive, emotional interviews with some of the biggest names in comedy.
Pierce Law Group LLP has served as general counsel for the world famous Comedy Store since 2003. We also represent many of the comedians that grace its stages. We are proud to have contributed to the making of this documentary and encourage you to watch it on SHOWTIME!
THE COMEDY STORE
Comedian’s Assistance Fund
The Comedy Store is also committed to helping out artists and comedians during this pandemic.
Help us help them during these unprecedented times. Following the passing of Mitzi Shore, Our firm assisted The Comedy Store in establishing a Comedian’s Assistance Fund in conjunction with the Motion Picture Television Fund (MPTF). That fund has never been more needed during the COVID-19 pandemic.
Donations can be made to the fund with proceeds benefiting comedians who have been hindered from performing on stages during the time of COVID. To donate click below:
DONATE HERE
Reminder: change those clocks!!
The official time for people to turn the clocks back an hour is at 2 a.m. on Sunday, Nov. 1, meaning the time will go back to 1 a.m.
You might get an “extra” hour of sleep that day, but it will also begin to get darker earlier in the day. The amount of daylight will shorten each day until the winter solstice on Dec. 21st. And note: Arizona is a state that does not participate in the ritual of Daylight Savings. Likewise Hawaii, Puerto Rico, and the Virgin Islands do not change their clocks. Confused? Just consult your smartphone for accurate world clock times.
Disney+ Launches GroupWatch!
Host a Socially Distanced Virtual Watch Party
Disney+ came out with their own version of Netflix Party and Amazon Prime Video Watch which gained popularity during the coronavirus quarantines. However, Disney+ has distinguished themselves by allowing the feature to work across any device with no added extension or app necessary.
MDAF Membership limited to attorneys who’ve won million dollar verdicts & settlements
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DISCLAIMER
The information you obtain in this newsletter is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters, and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
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