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Generic .coms, Lady A and more…

Generic .coms, Lady A and more…

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/123

  • GENERIC.COM TRADEMARKS GRANTED
  • LADY ANTEBELLUM VS. LADY A.
  • MAKE-UP DESIGNS, COPYRIGHTABILITY & PREMPTION
  • ESTATE OF CONAN DOYLE SUES NETFLIX OVER ENOLA HOLMES
  • SHAPE OF WATER LAWSUIT RECONSIDERED
  • SLAPP MIGHT NOT APPLY-JOY REID HAS SETBACK IN FEDERAL COURT
  • INSTAGRAM EMBEDDING RECONSIDERED
  • UNICOLORS FIRST IMPRESSION OF SINGLE UNIT OF PUBLICATION 
  • PSA: MAKE SURE TO DO CLEARANCE/CHECK YOUR RESIDENTIAL LEASES 
  • PSA: COPYRIGHT DAMAGES DECISION IN 9TH CIRCUIT 
  • PSA: NEW GROUP REGISTRATION FOR SHORT ONLINE WORKS
  • NO SUMMARY NEEDED-PODCAST ACCESSIBILITY

“Literally” Libel… Proof

“Literally” Libel… Proof

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/122

  • “THE ROOM WHERE IT HAPPENED” MOVES TOWARDS PUBLICATION
    • United States of America v John R. Bolton [USDC for the District of Columbia]
  • PSA: SETTLEMENT FOR MUSICIANS 
  • PABLO STAR V. THE WELSH GOVERNMENT
  • IMDB DECISION CONFIRMED BY APPELLATE COURT
  • LIBEL CASES IN THE NEWS
    • HYPERBOLE IS STILL OK, RACHEL MADDOW WINS HER MOTION TO STRIKE
    • WOLF OF WALL STREET LIBEL IN FICTION CLAIM FAILS
    • DYKSTRA IS LIBEL-PROOF
  • FAIR USE OF CHILDREN'S  SONG FOUND FOR IDENTICAL USE IN DIFFERENT CONTEXT
  • QUICK-TAKE: COPYRIGHT STILL APPLIES TO POLITICAL ADS
    • Tom Petty complaint re “Won’t Back Down” 
    • Trump Video taken down by twitter and FB after DMCA request
  • U.S. COPYRIGHT OFFICE SUGGESTS REVIEW OF SECTION 512
  • SA MUSIC LLC V. AMAZON.COM [USDC, W.D. Washington]

Can (and should) producers use COVID-19 waivers from cast and crew to limit their liability?

Can (and should) producers use COVID-19 waivers from cast and crew to limit their liability?

The scenario

An actor client today told me that she’s been asked to sign a document before coming to work on a new project. The waiver expresses all kinds of new protocols for minimizing disease transmission on and around the set, but then it goes on to include a waiver, stating that she understands that there’s still a risk, and is assuming that risk by taking the job, so she promises not to sue or make claims if she gets the disease.

she checked in with SAG/AFTRA. They told her that they’re directing members NOT to sign these waivers.

But what about non-union personnel and projects? Is this a legitimate kind of thing?

General Rule: workplace safety required.

Employers have a duty to maintain a safe workplace. That means complying with local orders, state regulations, and guidance from government agencies like CDC, OSHA, and local authorities

What is a waiver?

The term waiver is pretty loosely defined. In this context, it essentially refers to a release agreement… A contract that includes a series of provisions designed to reduce the employer’s liability. These include not just a clause waiving the claims, but the aforementioned assumption of the risk, and covenant not to sue.

If these waivers are enforceable, they would eliminate most, if not all, liability for the risks they articulate.

Can a worker even waive his or her claims?

Generally, because of the disproportionate bargaining power between employers and employees, waiver agreements have been viewed with skepticism and disfavor. But the current situation is unlike any that business has faced in over a century. So there's no telling how courts will react.

States, however, through their worker compensation laws, require medical expenses, lost wages, and rehabilitation costs be provided to employees injured in the course and scope of their employment. Employees generally cannot waive their worker’s compensation claims for work-related injuries.

Sometimes, it may be hard for employees to prove they caught COVID-19 at work, some states, including California, have created a rebuttable presumption that when workers contract COVID-19 it's a workplace injury covered by the workers’ compensation system.

Waivers can’t protect employers from OSHA complaints or enforcement actions for dangerous work environments, either.

AB5 makes nearly all entertainment workers employees.

California's Assembly Bill 5, which took effect January 1, 2020 changed the rules of how and when workers can be classified as independent contractors. As a result, nearly all entertainment industry workers must now be treated as employees.

So, any workplace-contracted cases of Covid-19 would likely be covered under Worker Compensation.

But what about the few non-employees, independent contractors remaining?

Yes, a waiver COULD protect the employer.

IF the worker signs

So, should employers request such a waiver?

The practical effect of such waivers may be to discourage workers from returning… OR, may discourage those who do become ill from pursuing claims. And, while that's beneficial for employers, legally speaking, jsuch waivers may not be enforceable.

In the face of SAG-AFTRA’s directive to members and the limits placed on such waivers by Worker Compensation law, insisting on such waivers seems a wasted effort, with considerable downsides. For example:

  • Bad Publicity for your production if word gets out that you're one of “those” employers. Especially if a high-profile worker contracts the disease;
  • Lowered worker morale. Unhappy employees aren't as productive, and worries about safety may interfere with operations;
  • Some valued workers may refuse to sign waivers and thus need to be replaced. (unless you're willing to eliminate the waiver requirement for some, risking outcry from others when they learn of the disparate treatment).

But some productions may find themselves between a rock and a hard place. It's conceivable that insurance will be difficult or excessively costly to obtain if waivers aren't included in workers' start paperwork. Without insurance, there are greater risks than those listed above. But without the workers, there's no production to insure.

Reasonable Protocols that don't include waivers and assumptions of risk

Now, this article is NOT intended to suggest that employers shouldn’t take steps to limit access to workplaces if they’re infected or at higher-than-usual risk. These might include things like:

  • Entry Questionnaires
  • Temperature checks
  • Visual observation/evaluation
  • Insistence on workers' compliance with mask protocols, hand washing, distancing, etc.

Should workers consider signing waivers?

If you’re a worker, check with your union to determine whether they’ve issued any guidance on this. If so, follow it. (here's a link to SAG-AFTRA's notice)

If you’re non-union, or your union hasn’t offered any guidance, consider the risks very carefully. While very broad waivers are usually disfavored, we can’t yet predict how courts will enforce them given the scope of the Covid-19 crisis and its effect on business. Obviously the decision is yours to make.

Personally, I’d decide not to sign a waiver.

Beware of waivers in sheep's clothing

One last word of caution for workers: Be careful about tricky “questionnaires” that include a waiver or assumption of the risk. Always make sure you read and understand any document you’re asked to sign.

You Can’t Copyright the Law

You Can’t Copyright the Law

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/121 SUPREME COURT: GEORGIA v PUBLIC RESOURCE, Inc. Public Resource WINS, NO ONE CAN COPYRIGHT THE LAW BLACKBEARD POSTMORTEM – SENATE APPROACHING NEW… Continue Reading

April Quarantine Edition

April Quarantine Edition

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/120 RIAA SUED OVER SONGS IT DIDN’T HAVE RIGHTS TO (WOOPS! WE DIDN’T OWN THAT) YES NBA2K, YOU CAN USE THAT TATTOO  YES,… Continue Reading

Achieve More, Better, Faster

As you know, I love to help creatives and business folk in all fields… film, tv, theatre, podcasting, online/digital business, or whatever, to forge their paths forward to bigger, better, accomplishments, as quickly as you can imagine. I do this through: One-on-one coaching (sign up for a discovery call to learn how this works​https://firemark.as.me/Discover) Group Coaching (click… Continue Reading

Resources to help during Covid-19 Crisis

(no, I don’t have a secret resource for T.P.) But here are a few useful links.: ​The Freelancer’s Guide to The CARES Act: New Funds and Benefits (from my friend and client Abbey Woodcock) ​What freelancers need to know about the coronavirus​ ​Where entertainment industry workers can go for help (LA Times) ​Financial Help for Hollywood workers (Variety.com)… Continue Reading

Blackbeard’s Revenge!

Blackbeard’s Revenge!

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/119 BREAKING: STATES CANNOT BE SUED FOR COPYRIGHT INFRINGEMENT- YES NORTH CAROLINA, YOU CAN BE A PIRATE. THIS LAND IS YOUR LAND –… Continue Reading

A new look at the old standard: “Force Majeure” clauses

With Covid-19/Coronavirus causing cancellation of events and transactions around the globe, people are naturally looking at whether they must still perform their contractual obligations and whether they are entitled to refunds of deposits and advance payments they’ve made. Most contracts do include a so-called “force majeure” clause as part of what’s usually considered the boilerplate.… Continue Reading

Live from Dallas

Live from Dallas

The Latest episode of my Entertainment Law podcast, Entertainment Law Update, is now available for your enjoyment. Listen here, or subscribe and download in your favorite podcast listening app.  Show notes are located at www.entertainmentlawupdate.com/118 Repeat COPYRIGHT plaintiff (Richard Bell Indianapolis Skyline Photo) SHUT DOWN WITH ISSUE PRECLUSION PERRY AMICUS BRIEF FILED BY 15 MUSICOLOGISTS LAWYER COPYRIGHTS… Continue Reading

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