ENTERTAINMENT LAW CIRCULAR
February 2021
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Pierce Law Group LLP
Speaking Engagements In February
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BHBA Webinar Open to All
International Film Finance: A Global Prospective
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Pierce Law Group LLP's Managing Partner, David Albert Pierce, will be moderating a webinar titled "International Film Finance: A Global Prospective for 2021" on Saturday, February 20th from 9 am Pacific - 11 am Pacific. The program will be available online worldwide and will feature attorney panelists from the United States, Italy, Ireland, Canada, the Dominican Republic, and China.
The 2 hour panel will discuss how film financing deals are currently structured in each of their respective countries. This will include the differences in tax incentives, the major players in each region, how technology is evolving, and how global companies - like Netflix -are affected by territorial deals. The panel will also discuss how COVID-19 is affecting productions, distribution, and cinema in their respective countries.
Panelists include:
Managing Partner, Pierce Law Group LLP
Partner, Latham & Watkins LLP from USA
Director, Oficina Melo Guerrero, S.A from Dominican Republic
Principal, Edwards Creative Law from Canada
Dong Wang, Esq.
Managing Partner, Chamzon Law Firm from China
Partner, Gianni & Origoni from Italy
Rufus-Isaacs, Acland & Grantham LLP from Ireland
Webinar commences:
9 am Pacific, Noon Eastern, 1 pm AST (Dominican Republic), 5 pm GMT, 1 am Beijing
THIS PROGRAM IS APPROPRIATE FOR ATTORNEYS, FINANCIERS, FILMMAKERS, AGENTS AND BUSINESS ADVISORS. The Price is only $25.
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BHBA MCLE Webinar
Entertainment Year in Review
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The Beverly Hills Bar Association's Entertainment Law Section is holding its annual Entertainment Law Year in Review Litigation Panel on February 12th 2021 at Noon and will thereafter be available online for rebroadcast and download from the BHBA website at: BHBA Entertainment Litigation Year In Review
Pierce Law Group's Litigation Department Head John Baldivia is the Program Chair of this event for the third year in a row and this is the third year in a row that Pierce Law Group LLP has been bestowed the honor of preparing all written materials for the program summarizing the major cases affecting Entertainment Law in 2020.
Panelists include:
Bryan Freedman of Freedman & Taitelman, William Briggs of Venable LLP and Andrew Brettler of Lavely & Singer
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SLAMDANCE FILM FESTIVAL GOES VIRTUAL AND PIERCE LAW GROUP LEGAL CLINICS WILL BE ONLINE TOO! |
While we won't be in Park City, Pierce Law Group LLP will once again be (virtually) at the Festival and will be conducting Two Legal Clinics for Slamdance via its website on Monday, February 15 and Wednesday, February 17 from 11 am until Noon. Admission online is free. Meet your favorite Pierce Law Group attorneys over the web and have your burning questions about legal issues regarding independent filmmaking answered! For more info contact: dpassist1@piercellp.com
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New Laws Effective January 1, 2021 in California |
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Once again the new year marks more legislation and regulation affecting employers in all industries throughout California. This is not a complete list of new employment laws and amendments that take effect in 2020 in California, by rather simply a summary of some that are most likely to affect entertainment industry employers. For a complete list of employment laws that affect your company, contact a Pierce Law Group LLP attorney.
AB 685: COVID-19 Imminent Hazard to Employees: Going into effect January 2021, employers must notify employees in writing within 24 hours if they learn of any potential exposure to COVID-19 within the organization. (Codified under California Labor Code section 6409.6 (and sections 6325 and 6432 as amended). Violators could face fines, as well as civil liability under another law going into effect that broadens workers’ compensation recourse for those who contract COVID-19 on the job under sections 3200 through 6002 of the Labor Code. Both laws will remain on the books for at least two years.
COVID-19: CAL-OSHA Temporary Standards: Effective from November 30, 2020, to May 21, 2021 (with the possibility of extension), under sections 6300 through 9104 of the state Labor Code, all employers in California must have a written COVID-19 prevention plan in place that includes provisions for communicating information about COVID-19 to employees, investigating and responding to COVID-19 cases in the workplace, physical distancing, face coverings, removing exposed workers, return procedures for recovered workers, testing requirements, and notification of public health authorities when outbreaks occur in the workplace. Pierce Law Group LLP regularly helps companies in all industries develop compliance COVID-19 policies.
AB5 Amendment: Changes to Independent Contractor/Employee Classification Criteria: The addition of section 2750.3 to the Labor Code provides a series of exclusions from jobs that are subject to the "ABC test" for classifying workers as independent contractors among them that are now exempt from AB5 are live venue performers such as stand-up comedians, as well as, freelance writers, photographers, videographers, journalists, recording artists, songwriters among certain others identified by the statute. These jobs will be subject to the traditional "right to control" test established in S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations and not the more onerous rules of the "ABC test." DAVID ALBERT PIERCE lobbied law makers on behalf of the Hollywood Chamber of Commerce to obtain the Live Venue Performer exemptions!
Prop 22 Independent Contractor Designation for App Based Drivers: Under the newly-instituted Prop 22 in California, independent contractors who work for app-based services like Uber and DoorDash are now eligible for certain worker benefits. App-based service providers must now pay independent contractors an hourly wage for time spent driving equal to 120% of either the local or state minimum wage. Drivers are also entitled to a stipend for purchasing health insurance when drive-time averages more than 15 hours a week. That entitlement increases if driving hours average more than 25 hours a week.
CA Minimum Wage Increase: The statewide minimum wage has increased to $14 an hour for large organizations and $13 for organizations employing fewer than 25 people, under Labor Code section 1182.12. Of course certain cities have higher requirements. The minimum wage in Los Angeles City, Santa Monica, Malibu, and unincorporated areas of L.A. County remains at $15 an hour for businesses with 26 or more employees, $14.25 an hour for businesses with 25 or fewer employees.
SB1383 - Expansion of California Family Rights Act: Businesses with as few as 5 employees are now compelled to offer up to 12 weeks of unpaid, job-protected leave a year for employees addressing certain family and medical needs. Paid family leave now covers issues arising out of loved ones involved in active service in the United States Armed Forces.
AB 2992 - Leave Time: AB 2992 similarly expands section 230 of the California Labor Code, allowing employees who are victims of a crime or abuse to take time off to seek medical attention or mental health services.
AB 2017 - "Kin Care": This revision of Labor Code 233 allows an employee to have the right to take sick leave as "kin care" time, caring for a family member. Employers have to let employees take as many as half of their sick days to use in this manner.
Compliance Deadline: Harassment Training: As of January 1, 2021, businesses with at least five employees must institute staff-wide harassment training. Supervisors must complete a two-hour interactive training course while non-supervisory employees must complete a one-hour course. This must be completed within six months of hire or promotion to a supervisory position; and non-promoted employees must repeat the training every two years, per California Government Code sections 12940 through 12953 covering fair employment. Pierce Law Group LLP can provide such training.
AB1947 - Expanded Labor Code Protections: AB 1947, effective January 1, 2021, extends the deadline for an employee who believes he/she was unjustly terminated or otherwise discriminated against in violation of California labor law, to file a complaint with the state Division of Labor Standards and Enforcement (DLSE). Employees in these situations now have one year, as opposed to six months, to file. AB 1947 now authorizes a court to award attorney's fees in addition to damages to a plaintiff who is successful on a whistleblower claim under section 1102.5 of the state Labor Code. The DLSE has also ruled that California corporations must certify in their Secretary of State filings that all officers and directors (or members/managers in the case of LLCs) do not have any outstanding judgments against them in violation of a wage order or the state Labor Code, effective January 2021.
The Federal Small Business Administration has released interim final rules on reopening the PPP loan program, second draws, and streamlining forgiveness. Reopening is slated for the week of January 11 for new borrowers and certain existing PPP borrowers. The January 11 first draw will be limited to community financial institutions; a second draw on January 13. PPP will open to all participating lenders shortly after that. The overall application deadline is March 31, 2021.
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COVID-19 CA Update: Californians can opt-in to receive Apple or Google notifications if they've been exposed to someone with COVID-19. CA Notify, the new statewide exposure notification system, is completely anonymous and will never track your location. To help protect your community against COVID-19, please go to canotify.ca.gov and add to your phone today.
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Quick Note!
As of 2021, all corporations based in Delaware must file their Annual Franchise Tax Reports electronically. If this applies to you, you can file your report and pay taxes and fees at www.corp.delaware.gov. If you have any questions about this please contact Anthony Hanna or David Albert Pierce
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SBA Updates and New Digital Platform |
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PPP Re-Opened to Small Lenders on 1/15 & All Lenders on 1/19 |
The U.S. Small Business Administration (SBA) re-opened in January, Round 2 of the Paycheck Protection Program (PPP) with the U.S. Treasury Department. |
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SBA Announces New Digital Platform
Small Business Administration has launched a new interactive digital platform aimed at women-owned businesses. SBA's Ascent will provide a resource to help women business owners and entrepreneurs tackle issues that have arisen due to COVID-19. For more information click the link below.
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Industry Wisdom:
A look at some recent lawsuits and news affecting the entertainment industry
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Bill and Ted's Not-So-Bogus Legal Adventure |
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Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC
Starz Entertainment filed a lawsuit against MGM last May, in which they alleged that MGM gave Starz exclusive rights to 421 movies and television episodes in 2013. These titles included Bill & Ted's Excellent Adventure, Bull Durham, Rain Man, Thelma & Louise, Mad Max, the James Bond movies, The Terminator, and more. This lawsuit stemmed from a Starz employee noticing that Bill & Ted's Excellent Adventure appeared on Amazon Prime's platform in 2019.
MGM filed a motion to dismiss, saying that Starz had waited too long to bring this claim. MGM claims to have been granting licenses to the Starz-exclusive pictures since 2015, effectively barring Starz's claim However, on January 5, 20221, U.S. District Court Judge Dolly Gee denied MGM's motion to dismiss, stating that Starz should not have to monitor MGM's actions and that Starz's "duty of diligence as a copyright holder does not include a duty to continuously monitor a licensor to ensure compliance with its obligations, absent any reason to otherwise suspect a breach. The law does not inject such paranoia into the licensor-licensee relationship."
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Oh, the places fair use won't go!
Dr. Suess Enterprises, L.P. v. Comicmix, LLC et al.
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Dr. Seuss Enterprises, which administers the estate of famed children's book author and illustrator Theodor "Dr. Seuss" Seuss Geisel, was successful on appeal to the 9th Circuit in December 2020. The dispute with ComixMix, a blog that reviews graphic novels, centered on a Star Trek-rendition of Seuss's Oh, the Places You'll Go! produced by the site. In 2019, a U.S. district judge found ComicMix's use to be sufficiently transformative; but the 9th Circuit panel reversed this claim, finding that not one of the four fair-use factors weighed in the blog's favor. Circuit Judge M. Margaret McKeown began her opinion with a nod to Seuss himself: "I'm sorry to say so/ But, sadly it's true/ That Bang-ups/ And hang-ups/ Can happen to you." The panel proceeded to hold that the simple addition of "new expression" to existing work is not a "get-out-of-jail-free card" that shields any and every appropriative work. It's not all doom-and-gloom for ComicMix, however; the blog got off scot-free on Seuss's trademark claim, with the 9th Circuit panel finding that the federal Lanham Act did not apply to ComicMix's use of similar typeface to the original Oh, the Places You'll Go!, as such use was not "explicitly misleading," but intended to achieve a certain artistic purpose.
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Nicki Minaj is "Sorry" to the tune of $450,000 |
Nicki Minaj is settling her lawsuit with Tracy Chapman over copyright infringement claims that "Sorry" is a derivative of "Baby Can I Hold You." Earlier in 2020, a U.S. District Court denied Tracy Chapman's motion for summary judgment stating that Nicki Minaj had a fair use right to use the song in the studio to enable musical experimentation. While this gave Minaj hope in fending off the lawsuit, ultimately both sides came to a settlement agreement of $450,000 to avoid a jury trial. |
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State court appeal puts non-competes on trial
Brown v. TGS Management Co., LLC
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An appeal arising from a judgment confirming an arbitration award between TGS Management Co. and plaintiff Richard Hale Brown asserts well-established California law: Employers, in particular talent agencies, cannot include covenants not to compete in employment contracts; though they may contain them in contracts where a principal is being cashed out of his/her business. The appeal has merit, and the private arbitrator's disregard for California for the law is likely to be overturned. |
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Federal spending package births a copyright small-claims court |
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Federal legislators unveiled a massive spending and COVID-19-relief package in December 2020, which included a majorly consequential copyright measure formerly known as the CASE Act. The Act creates a quasi-judicial tribunal of so-called "Copyright Claims Officers" who are tasked with investigating and resolving claims of infringement — in effect, a copyright small-claims court, as it broadens accessibility to copyright enforcement for independent artists outside of the traditional, onerous (and often costly) process in federal court. Critics of the bill say it runs the risk of penalizing ordinary users of the Internet for such relatively innocuous activity as sharing memes. |
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Will Hulu and Netflix no longer fall under the Internet Tax Freedom Act? |
In 2020, lawsuits over whether Netflix and Hulu are "video service providers" under the federal Internet Tax Freedom Act started popping up all over the country. The controversy stems from whether the streaming companies will have to give a portion of their revenue to local municipalities as cable operators have had to do for decades.
A judge in Missouri is the first to rule on this issue, holding that the Internet Tax Freedom Act doesn't apply. Judge Ribaudo stated that the federal statute's purpose was "to prevent taxes that specifically targeted electronic commerce" and that these streaming companies did not fall into that category. There is also a lawsuit with the same issue in a Texas federal court.
If this decision is adopted throughout the country, consumers could expect to see a much higher bill in their future.
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COVID-19 & THE ENTERTAINMENT INDUSTRY
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THE COMEDY STORE
Comedian's Assistance Fund
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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:
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PLG-LLP OFFERS
PRODUCER'S PANDEMIC PROTECTION
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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.
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"Demystified" Online Education Podcast |
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Check out David Albert Pierce on StudioFest's video series Demystified. He discusses what you should be on the look out for in distribution deals with 2018 StudioFest winner Souvenirs writer Matt Sorvillo. David explains four-walling and meaningful consultation. This section of the video starts around the 9:00 minute mark.
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Looking for Home Entertainment? Check Out Podcasts & Other Online Events from Pierce Law Group Clients |
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Director Penelope Spheeris Joins Her Wayne's World Actors For A Reunited Apart Which Is Now Playing Online |
To kick off Season 2 of Reunited Apart, Josh Gad gathers the cast of Wayne's World along with some very special guests including legendary director (and Pierce Law Group LLP client) Penelope Spheeris to rock out together once again.
For more info on the program, click here. To watch, click on the button below!
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Catch Dennis Feitosa's podcast "Def Noodles", a satirical take on internet news commentary.
A mix between "The Soup" and "The Colbert Report", a satirical take on Internet news. Find out why he has 350,000 subscribers and over 50 millions views: click here!
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Don't miss a show where you'll never know who you will see! Stephen Glickman hosts "The Night Time Show", a top rated podcast where comedians interview a wide range of influential people, comedy gurus, and award winning artists. Click here to listen!
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Live from the World Famous Comedy Store, the most dominant faction of pro wrestling fans (Producer Chris Burns, Comedians Tony Hinchcliffe, Johnny Skourtis, Mat Edgar and Josh Martin) weigh in on the state of the industry past and present.
Its a real barnburner of comedy and insight into all our WWE favorites from today and yesterday Wooo! To listen:
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Learn about moviemaking with enjoyable analysis & real-life tips about the business of producing feature films by listening to our client StudioFest's "Demystified" Podcast. Click here!
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Pierce Law Group LLP
Recognized For Excellence
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MDAF Membership limited to attorneys who've won million dollar verdicts & settlements |
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Don't forget to connect with us on social media! |
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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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