If you thought that resolving the cast’s and crew’s day-to-day crises was your biggest concern while producing a film, think again.
There is more to an airtight production than a flawless shoot. There are numerous entertainment and employee regulations in place that producers need to keep in mind to protect their companies and their projects.
Your safest bet is to obtain legal counsel and to be proactive in avoiding litigation.
Following is a list of many requirements you should be aware of both as a filmmaker and an employer:
Production is rarely a one-person show. There are several parties adding value to a project and this can create complicated copyright issues.
That makes it imperative to obtain the services of an entertainment lawyer seasoned in copyright law.
The more parties that are involved, the higher the risk of an idea getting stolen during the early stages of the project. To prevent this you may want to:
- Establish sole ownership of the product in writing and get it signed by all parties involved.
- Have a copyright agreement ready before a collaborator asks for compensation for their contributions.
Protecting your intellectual property and preventing copyright infringement is always important, but—this becomes crucial when you submit your work to festivals or distribute them to networks.
Obtaining copyright allows you more freedom to distribute and market your product.
Intellectual property laws can be quite confusing. Following are some of the steps you can take to avoid copyright infringement:
- You can register your work with the U.S. Copyright Office and get proof of creation in addition to the right of publicity.
- If you use music in your production, you should look into obtaining a synchronization license.
- You can negotiate the motion picture rights with the author or their next of kin for adaptations of a literary work. Here’s a video for more details.
- If you purchased an already written screenplay for a film, you could have the writer renounce the right of droit moral. By doing this, you can make any changes you want to the screenplay without the threat of a lawsuit.
- Basing your work on real-life events of the past is complicated even though the First Amendment allows it. You should always consult a lawyer to avoid defamation and violation of privacy lawsuits.
2. State labor laws
The FLSA (Fair Labor Standards Act of 1938) lays out employment laws that must be followed by all employers, including those within the entertainment industry. It applies to employees not otherwise covered by a collective bargaining agreement.
The FLSA and other important regulations are outlined below.
Discrimination and harassment laws
The Civil Rights Act of 1964 is a civil rights and labor law that prohibits discrimination based on color, race, color, national origin, religion, sex, sexual orientation, and gender identity.
It expands to include fringe benefits, leaves of absence, retirement plans, and allotment of company facilities.
These laws also protect people over the age of forty and people with disabilities capable of performing their duties.
Sexual harassment is categorized as a form of discrimination and is illegal under federal law. It may also violate individual state laws.
Employers are obliged to take appropriate action so that no worker is subject to sexual harassment in the workplace. They must have a policy in place and explain the process of reporting and subsequent investigation.
Employees can file a complaint against an employer for discrimination, which will be investigated by the U.S. Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the New York State Division of Human Rights.
Executive, administrative or professional
The classes above are not typical definitions for production employees unless we are discussing a production company’s main office staff. Employees in these classifications, where job duties and rates of pay may identify them as “exempt,” will not be subject to the federal or state overtime provisions. Here is a link to the DOL guidelines for defining “exempt” employees.
If you or your employees do not qualify as “exempt,” the following is a guide for payroll requirements.
Minimum wage laws
The FLSA stipulates the minimum wage to be $7.25 per hour.
In addition to the Federal minimum wage, many states establish their own higher minimum wage rates as do some county and city governments. California minimum wage is currently set at $13/hr for employers with fewer than 25 employees. In L.A. County, for companies with more than 26 employees, it is higher, at $15/hr.
“Learners” are an exception defined as “Employees during their first 160 hours of employment in occupations in which they have no previous similar or related experience,” and “may be paid not less than 85 percent of the minimum wage rounded to the nearest nickel.”
Frequency of payment
California State Labor Code Article 1, Section 204, states that Labor performed between the 1st and 15th days, inclusive, of any calendar month shall be paid for between the 16th and the 26th day of the month during which the labor was performed, and labor performed between the 16th and the last day, inclusive, of any calendar month, shall be paid for between the 1st and 10th day of the following month.
Executive, administrative and professional employees are one of the exceptions and may be paid once a month, on or before the 26th day of the month during which the labor was performed if the entire month’s salaries, including the unearned portion between the date of payment and the last day of the month, are paid at that time.
Rules and exceptions are all available on this page from the California Department of Industrial Relations.
It is important to note that the employer must establish a regular payday and is required to post a notice that shows the day, time, and location of payment – when applicable.
California Wage Order 12-2001 outlines overtime pay requirements for non-union employees in the entertainment industry in the state of California.
Production employees must be paid time-and-one-half of their regular rate of pay after eight hours worked on each day 1-5.
- On workdays 1-5 in the week, employees are paid double-time after 12 hours.
- On workday 6 in the workweek, employees are paid time-and-one-half for the first 12 hours worked and double time thereafter.
- On workday 7 in the workweek, employees are paid time-and-one-half for the first 8 hours worked and double time thereafter.
- There are separate overtime rules for “extras” and minors that can be found in Wage Order 12-2001.
Employees outside of California follow FLSA overtime rules except in a handful of states like Colorado that have better conditions. New York does not have its own overtime rules but instead follows the FLSA.
FLSA law provides for time-and-one-half after 40 hours in the 7-day workweek and does not provide for daily overtime.
There is a limit to the number of hours a production company can ask an employee to work. No non-union employee can be required to work for more than 16 elapsed hours, including breaks, in a workday.
Termination and severance pay
Unless there is an agreement of severance pay between the employer and employee, the producer is not liable to pay any severance. Neither New York nor California call for any such compensation.
Every state has its own laws regarding payment of a non-union employee’s final check, both if the employee is fired, and if the employee quits. Please check the state DOL website for information specific to your situation. In California, for example, the final check is required immediately upon firing or mailed within 72 hours if the employee abruptly quits.
Keep in mind that as an employer, you must be careful in how you describe the employment of a former employee to their new or prospective employer. Employees can sue former employers who prevent them from obtaining future employment.
Most employment in the entertainment industry and in general is considered at-will, in other words, employment without a written guarantee of employment between employee and employer. Employment can be terminated without reason or notice. However, there are legal exceptions, for example, anti-discrimination laws.
The authorized rest period time shall be based on the total hours worked daily at the rate of 10 minutes net rest time per 4 hours worked. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
California Wage Order 12-2001 stipulates meal breaks at least every 6 hours. If production runs beyond the 6-hour mark without providing a break, the employee is entitled to an additional 1 hr of pay at their regular hourly rate.
In New York, producers must allow a half-hour meal break between 11 am and 2 pm. For shifts starting before 11 am and working past 7 pm, employees must also be given a 20-minute meal break between 5 pm and 7 pm.
Federal law does not mandate any paid meal or rest breaks.
Minimum number of hours before the next shift
The California Wage Order 12-2001 requires that employees be given a minimum 10-hour break between the end of the call and the next day’s call.
Regarding days off, the Wage Order states: “The provisions of Labor Code §§ 551 and 552 regarding one (1) day’s rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7).”
New York, however, follows federal law and does not require one idle day per week.
Work-for-hire agreements/Independent Contractors
A well-drafted work-for-hire agreement can save the producer future confusion and federal and state legal liability.
The absence of such a contract can potentially result in a work-for-hire individual, also known as an independent contractor, being classified instead as an employee, obligating the producer to cover employee and employer payroll taxes, overtime pay, etc.
This site will help you determine whether or not this person you are hiring can legally be defined as an independent contractor, or whether he will need to be paid and covered as an employee.
Child entertainment laws
Child labor laws are in place to protect child actors from physical mistreatment.
As a producer, you must do region-specific research about child actor labor laws to avoid legal fallout. You can start by visiting the U.S. Department of Labor’s Child Entertainment Laws sections to check state provisions.
The Coogan Law is a film industry regulation put in place to protect a child actor’s earnings. It is officially called the California Child Actor’s Bill and was passed in 1939.
Unlike other employment laws that stipulate the traditional labor rules of working hours and payment, Coogan’s law is there to fill another critical gap.
This law establishes that a producer must place 15% of the child actor’s earnings in a separate bank account, called the Coogan account, in the form of a shielded trust that only the actor can access after their eighteenth birthday.
Hazardous or dangerous work conditions
On a production set, one comes across several potential dangers to personal safety. There are construction materials, scaffolding, power tools, even the simple threat of tripping over wires.
All employees have a right to a safe workplace, and the producer that doesn’t provide one can find themselves at the wrong end of a lawsuit, and owing hefty fines. Therefore, it is important that you manage risk and provide a safe environment for your employees.
If the worst-case does happen, employees have places to go to file complaints regarding harsh or dangerous workplace conditions:
- Occupational Safety and Health Administration
- California Department of Industrial Relations Division of Occupational Safety and Health
- New York Department of Labor Division of Safety and Health
These organizations investigate dangerous or hazardous conditions that do not comply with film industry regulations.
It’s safe to say that there are as many legal matters as creative to consider when it comes to making a film. Luckily, you don’t have to go at it alone.
For adequate risk mitigation and labor relations management for your film, reach out to our experts at Revolution. We’ll help you navigate the landscape so your production runs smoothly.