SACRAMENTO — Last Friday, Democratic California Governor Gavin Newsom signed Assembly Bill 2257 (AB2257) into law, providing a series of exemptions and clarifications to the so-called “Uber/Lyft law" (AB5) which affected labor relationships in the state starting January 1, 2020.
AB2257, known as “a clean-up bill,” seeks to address a multitude of issues brought to the attention of state government — and especially of AB5’s main sponsor Democratic Assemblyperson Lorena Gonzalez of San Diego — by a number of state industries, stakeholders and workers affected by the re-classification of many former freelancers as employees.
Significantly affected by AB2257 were the state’s crucial creative industries and workers, including the entertainment industry in general, and much of the adult entertainment industry in particular.
(Incidentally, to further complicate things, AB2257 shares the number with the completely unrelated 2257 legislation mandating record keeping for sexually explicit media.)
XBIZ spoke with a number of parties in government, trade organizations, unions and other stakeholders familiar with the bill to provide a clearer picture of how the controversial requirements of AB5 may or may not apply to adult industry labor relations after Newsom’s signing of AB2257 into law on September 4.
Creative Industries Exemptions
An entire section of AB2257 (Section 2780) seeks to address the classification of many California creative industry workers, which the language of AB5 had seemed to reclassify from freelancer to employee status.
The bulk of Section 2780 deals with the music industry, and its language — allowing for performances and recording sessions to continue, COVID-willing, as they did pre-AB5 — was celebrated by industry groups like the RIAA (Recording Industry Association of America), musicians’ unions and musicians alike.
The RIAA even released a statement heralding the clean-up bill, and listing its supporters as “American Federation of Musicians (AFM), American Association of Independent Music (A2IM), Music Artists Coalition (MAC), Independent Music Professionals United (IMPU), International Allegiance of Theatrical Stage Employees (IATSE), the Recording Academy, Recording Industry Association of America (RIAA), Screen Actors Guild (SAG-AFTRA), Songwriters of North America (SONA) and Teamsters.”
The inclusion of Screen Actors Guild (SAG-AFTRA) seems peculiar, because AB2257 does not mention the vast majority of workers in film and television. In the context of the music industry exemptions, however, there is a mention of musicians working on film and television sets, which explains the presence of SAG-AFTRA in the RIAA press release.
But why isn’t the status of film and television performers, directors, cinematographers and crew explicitly clarified by AB2257?
Since the law does not mention the adult video industry in particular, during the several months when AB2257 was being worked on by Gonzalez’s office, producers and performers had been looking forward to more general language about mainstream film productions that could be applied to adult productions.
Turns out the omission of film and television workers was deliberate: since their SAG-AFTRA union contracts and collective bargaining practices have historically, for almost a century, defined the relationship of studios and production companies with them as “employer/employee,” the reclassifications of AB5 were not seen to affect them. Therefore, AB2257 does not cover them, either.
The 'Employer/Employee' Relationship
XBIZ spoke with Jeffrey Bennett, Chief Deputy General Counsel & Executive Director of mainstream actors’ union SAG-AFTRA (NY), who was very familiar with AB2257 and the drafting process.
Bennett explained that AB2257 “was not intended to impact the motion picture industry, because it is heavily unionized and the workers in the entertainment industry are union employees.”
“Motion picture and television actors, directors, cinematographers, writers, crew, most of the people involved in a motion picture or television show are union,” Bennett continued. “It is understood that these workers are employees. That's the relationship and always has been the relationship. There wasn’t a need to carve that out of AB5 because nothing really changed there.”
Although there are adult performers’ labor groups — most prominently the Adult Performers Actors Guild (APAG), led by Alana Evans — they do not yet have the collective bargaining and strike power, almost universal membership, and overall clout of SAG-AFTRA.
There are historical reasons for this: the Screen Actors Guild (SAG) was founded in 1933, during the New Deal era, and the groundwork of their power to fight for mainstream performers was established through a series of bitter battles and strikes pitching them against the powerful studio system in the mid-20th Century.
In contrast, adult labor groups are much more recent — the legal adult industry in California itself only dates to 1989 with the California v. Freeman case establishing the difference between a pornographic performance and prostitution.
Thus, adult studio productions have operated in a grey area in terms of the “employer/employee” relationship that is the cornerstone of the mainstream performer’s relationship to those who pay them to act.
The Dream of Union Contracts
SAG-AFTRA’s attorney Jeffrey Bennett thinks that AB5 and AB2257 might end up clarifying those practices for studio shoots.
"AB5, although not directly affecting traditional film and TV, does put a spotlight on the broader entertainment industry,” Bennett told XBIZ. “And it does say, 'Hey, let’s look at all the jobs in California and let’s make absolutely sure that they are properly classified.'"
Maitland Ward is one of the few performers with extensive experience in both the mainstream and the adult industry.
“I’ve been a member of SAG-AFTRA since I was 15 or 16,” Ward — whose mainstream career included soap opera work and a star-making stint in Disney production “Boy Meets World” as a teen actress — told XBIZ. “When I first started in adult, it surprised me that performers, particularly those entering the business, had no protections for things like health care or overtime.”
Ward was so used to SAG-AFTRA protections that she had assumed that there would be similar arrangements on adult studio sets.
“The union contracts [in mainstream] govern the laws of what we can do. We wouldn’t be able to be on set for so many hours without being compensated for overtime [and] you have to have health care."
“I myself never had a bad experience on set,” Ward said, “but there’s nothing in place to prevent a producer from saying, ‘I don’t wanna pay you if you don’t wanna work under these conditions.’ This is important for new performers. [For example] how often you should be feeding them, knowing that the union contract can make sure they get paid even if they don’t agree to work for many extra hours, or being pressured to do things they don’t want to.”
These safeguards in the mainstream employer/employee relationship regulated by SAG-AFTRA contracts, Ward said, are crucial to protect the performers, especially the ones who are just starting out.
“Warner Bros. is not gonna screw over Tom Hanks,” Ward told XBIZ. “But when it’s fly-by-night operations, or very indie companies and people who are just starting, it’s good to know that they have employer/employee protections making sure you can’t abuse people.”
The 'Individual Performance Artist' Exemption
But if studio shoots fall into that grey area as far as AB5 and AB2257 are concerned — meaning, labor advocates think they technically should be employer/employee arrangements like in Hollywood productions, but often in practice are not — what about other types of filmed performance in adult, like content trades and camming?
Content trades are easy: if no money changes hands, as is the case with most content trades between performers, they do not fall under AB5 and AB2257. This was confirmed to XBIZ by sources close to the drafting of the bills.
Camming is a more complex matter, and this is where AB2257 does comes into play.
The bill does add an exception to AB5 known as “the individual performance artist” exception (Section 2780 (c)):
Section 2775 [i.e., the AB5 test to determine employee status] and the holding in Dynamex do not apply to the following, and instead, the determination of employee or independent contractor status shall be governed by Borello:
(1) An individual performance artist performing material that is their original work and creative in character and the result of which depends primarily on the individual’s invention, imagination, or talent, given all of the following conditions are satisfied:
(A) The individual is free from the control and direction of the hiring entity in connection with the performance of the work, both as a matter of contract and in fact. This includes, and is not limited to, the right for the performer to exercise artistic control over all elements of the performance.
(B) The individual retains the rights to their intellectual property that was created in connection with the performance.
(C) Consistent with the nature of the work, the individual sets their terms of work and has the ability to set or negotiate their rates.
(D) The individual is free to accept or reject each individual performance engagement without being penalized in any form by the hiring entity.
(2) “Individual performance artist” shall include, but is not limited to, an individual performing comedy, improvisation, stage magic, illusion, mime, spoken word, storytelling, or puppetry.
(3) This subdivision does not apply to an individual participating in a theatrical production, or a musician or musical group as defined in subdivision (b).
(4) In all events, notwithstanding paragraph (1), the terms and conditions of any current or future collective bargaining agreements or contractual agreements between the applicable labor unions and respective employer shall govern the determination of employment status.
XBIZ spoke with several sources familiar with the drafting of AB2257 and they confirmed that the “individual performance artist” exception was written in a deliberately broad manner to include many possible types of performers who are not under the direction of someone else and perform their own material.
The key to the “individual performance artist” exemption is the definition, which “shall include, but is not limited to, an individual performing comedy, improvisation, stage magic, illusion, mime, spoken word, storytelling or puppetry.”
The “shall include, but is not limited to” was deliberately placed there, XBIZ has confirmed, to leave interpretational leeway to encompass a broad range of performances, which would include the performances of most cam models.
APAG's Advocacy
Tasked with “cleaning up” the widely criticized, vague language of AB5, the office of Assemblyperson Gonzalez talked to a vast number of groups in the creative industries, and then tried to create language that would apply broadly.
One of the entertainment industry groups which met up with Gonzalez in late 2019 or early 2020 was APAG, led by Alana Evans.
Evans spoke with Gonzalez and her team and presented to them the cases of cam models who had been dropped by some camming platforms who were concerned about AB5 liability.
Evans identified two camming platforms in particular who altered their relationship with California-based models based on their interpretation of AB5.
In terms of cam performers, APAG advocated in its capacity as an adult performers’ union, much like SAG-AFTRA, and directly lobbied their California representative for inclusion in the bill’s language.
Ultimately, Assemblyperson Gonzalez’s office, and no specific stakeholder, was entirely responsible for crafting the language, but they did consult with several groups to allow for a broad pathway to deserved exceptions. They included groups of lawyers for comedy clubs, magicians groups, and APAG.
Adult industry trade group Free Speech Coalition concurs with the interpretation that the “indidvual performance artist” exemption applies to cam models.
“The way that the performance artist exemption is written in AB2257,” FSC Director Michelle LeBlanc told XBIZ, “it appears that it applies to cam models and other adult performers who are not under the direction of someone else and who are ‘performing material that is their original work and creative in character and the result of which depends primarily on the individual’s invention, imagination, or talent’.”
“As always, we recommend that performers and content buyers consult with their attorneys before making business decisions based on interpretations of this law,” LeBlanc added.
