Standing on the Shoulders of Giants…

“If I have seen further, it is by standing on the shoulders of giants”. Sir Isaac Newton

I usually find it obnoxious to start a post or any writing by quoting someone famous. It undermines the author’s credibility and in a way insults the original speaker since most quotes are taken out of context. And perhaps I am indeed doing that here but I cannot find words more appropriate to the way I feel about being an attorney in the adult industry.

I have the career that I do because the giants before me decided to stand up and fight for what they believed in. Most notably the First Amendment of the Constitution of the United States. You might say that they were also fighting for not being thrown in jail and losing their own freedom but more importantly they fought for what I believe in. If you can say that the US troops fought on the beaches of Normandy for our freedoms and not their own self-preservation then I can say that men like Milton Luros, Reuben Sturman, Larry Flynt, Paul Little and John Stagliano fought for your and my First Amendment rights.

I believe as an industry we tend to forget the sacrifices many had made in regards to their personal freedoms and financial security to produce porn. I also think that the fans fail to see the sacrifices made in order to provide them their daily enjoyment that they use with such disregard. With the advent of free Internet porn, our product as become nothing more than just Kleenex. To be used once and thrown away with no regard to what sacrifices were made before it appears on your computer or television screen.

Even now there are forces that try to censor what the American public watches and reads and how that effects the very lives of those in the industry. Most people believe that porn is, for all intents and purposes, so mainstream that obscenity prosecutions just don’t happen any more. That obscenity prosecutions are from days long ago when Justice Potter wrote his most famous of all words “I shall not today attempt further to define the kinds of material I understand to be embraced…but I know it when I see it…”

Many I think would be surprised to know that within the last 10 years there have been several major porn obscenity cases instituted by the FBI/DOJ including cases against Max Hardcore/Paul Little, John Stagliano and little known author Karen Fletcher. Ms. Fletcher was prosecuted for a having a blog of short erotic stories with a total of 29 paying members. She was prosecuted for words, no pictures, just words on a screen.

There have been other small obscenity indictments that don’t get national press as well. Recently in Florida, pornstar Kimberly Kupps was arrested and prosecuted for filming pornography in her home and distributing such content via the Internet (in the year of our lord 2011).

Currently there are units in LAPD that are actively investigating and busting porn producers in Los Angeles. I had the pleasure of representing Porn Dan after he got busted for shooting without a permit in Chatsworth in a warehouse. We were fortunate that we were able to get the charges against him dismiss entirely. Others aren’t and wont be so lucky.

Porn is still a bad word in most places. I often say porn is like prisons. Everyone wants them (it) but no one wants to live next door to one or to where its being made. Americans like their porn at a distance. They don’t like the ease of the accessibility most now have to it on the Internet but they aren’t ready to ban it. They love to come to AVN and Exxxotica and mingle with pornstars but god-forbid if one wanted a job in a normal office environment. So I suppose we should be thankful we have at least come this far in regards to acceptability. We still have a long way to go.

However, until the clear and present danger of a criminal prosecution has been lifted from the industry, we will always be the “wild wild west” full of outlaws. The work kind of requires it. Who would be willing to face criminal sanctions for producing porn unless they had at least an outlaw mentality. And how many men and women would star in such films and risk imprisonment unless they also had a similar attitude. Are any of you reading this willing to give up your day jobs for a chance to produce porn and go to jail ? I think not.

People often ask me when is the industry going to clean itself up and start acting right. I guess I should be asking when are those in mainstream society going to stop trying to put us in jail ? Personally I think once criminal prosecutions are shelved by all law enforcement we as an industry can start to mature and become more mainstream. Until then I suspect we will remain a quasi-legal industry with an outlaw mentality.

Remember the next time you download your favorite porn parody from a torrent site or watch your favorite pornstar on a tube site, the stolen porn you are getting for free could cost that person their freedom. Perhaps paying for it might just help them not only make some new porn but stay out of jail if the police come knocking on their door.

July 30, 2012 0

On Being a Lawyer in Porn…

I have to say that I am a very lucky individual. After fifteen years of practice I still wake up everyday looking forward to what I do. Most lawyers hate what they do by the time they are in their fifth or sixth year of practice as I actually did. Prior to getting into porn, I was an insurance defense attorney with seven years of experience in employment law and workers compensation. Insurance defense was not very interesting but it paid the bills.

Even though after just five years in I was able to start my own firm I still did not enjoy my practice. It was not challenging or interesting. I did have the good fortune of representing some of the largest employers in California including LAPD, LAFD, Los Angeles Unified School District, Boeing, Lockheed and Teledyne to name a few. But I also had the opportunity to represent companies such as Warner Brothers, Universal Pictures, Entertainment Partners and Cast & Crew, which gave me my first taste of the entertainment business.

Representing these entertainment giants is what led me down the not so primrose path to porn. I was approached by the Free Speech Coalition to give a presentation to their membership about on set injuries and how the interplay with employment and workers compensation law. Most of the then current adult industry attorneys were basically First Amendment specialists and did not have the background in employment law that I did. I happily agreed and have never looked back.

Needless to say after the seminar I was intrigued by the industry though I was never a big fan of porn. I think my earliest remembrances of porn was being in college and watching John Stagliano’s series about big boobs. But other than that I couldn’t name a single pornstar. It wasn’t until I came to California for law school that I had any real exposure to porn. While just a 1L in law school I was able to spend time with the man that founded the industry in Los Angeles, Milton Luros. That, however, is a story for another post but Google his name and see how important he is to this industry.

Even though I wasn’t a fan I did love what the industry stood for. I was always a supporter of free expression and love working in that environment. I actually worked as a DJ in a strip in New Jersey before law school and had also taught many of the bartenders that worked in various strip clubs. So I spent a fair amount of time hanging out with strippers and bartenders. I even lived with a stripper for three years before heading off to law school. Obviously, I had no problems with the free expression of sexuality as a way to earn a living.

So being a porn lawyer is almost a natural fit for me. I believe in the little guy and while we may be thought of as being a billion dollar a year industry I can assure you it’s mostly made up of little guys just trying to make a living. The days of millionaire pornographers are over. Now porn is basically made by a group of people with a passion for it. If things continue as they are we will be delisted as an industry and become a mere hobby – if piracy is let unchecked.

For those of you that are law students or lawyers thinking this is a great business to be in, you might want to think long and hard about that decision. While porn is definitely more mainstream then it use to be, there is still a stigma attached to it that will follow you, one that will definitely effect how the world sees you and what clients will hire you.

Either way, sometimes happiest is just more important than anything else.

July 30, 2012 0

The Condoms Have Arrived (Sort Of)

As you may remember from my article last summer for XBIZ World, I declared that the condoms were coming. That declaration was in reference to the position that Cal/OSHA had taken at the June 7, 2011, meeting in Los Angeles where a strong contingency of representatives of the industry turned out to battle their attempts to (further) mandate barrier protection use in the production of adult entertainment. It should be noted that technically, barrier protections are and have been mandated by California Code of Regulations, Title 8, Section 5193 for quite some time. However, the enforcement of such regulation has been spotty at best.

Based on the rather slow enactment of additional barrier protection regulation by Cal/OSHA, Michael Weinstein and the AIDS Healthcare Foundation decided to take their safe sex battle to a different receptive governing body, the Los Angeles City Council and Mayor Antonio Villaraigosa.

What Does The Act Require

On Jan. 23, Villaraigosa signed into law, the City of Los Angeles Safer Sex in the Adult Film Industry Act, hereby now requiring any production of adult content, within the limits of the City of Los Angeles, to use condoms for anal and vaginal sex while filming content involving penetration and ensuring that all ejaculate remains outside of a performer’s body. The act also requires all producers to be compliant with CCR Title 8, Section 5193, noted above.

Where Does The Act Apply (or doesn’t)

If you are not aware of the city limits of Los Angeles it may be easier to understand what cities the Act does not apply to. Remember this is a City of Los Angeles law and not a County of Los Angeles law. The Board of Supervisors of the County of Los Angeles has not (yet) adopted this law and therefore there are still numerous unincorporated cities in Los Angeles County where the act does not apply. Also, the act is not law within the 88 other incorporated cities in the County of Los Angeles.

For example Agoura Hills, Alhambra, Arcadia, Artesia, Avalon, Azusa, Baldwin Park, Bell, Bell Gardens, Bellflower, Beverly Hills, Bradbury, Burbank, Calabasas, Carson, Cerritos, Claremont, Commerce, Compton, Covina, Cudahy, Culver City, Diamond Bar, Downey, Duarte, El Monte, El Segundo, Gardena, Glendale, Glendora, Hawaiian Gardens, Hawthorne, Hermosa Beach, Hidden Hills, Huntington Park, Industry, Inglewood, Irwindale, La Cañada Flintridge, La Habra Heights, La Mirada, La Puente, La Verne, Lakewood, Lancaster, Lawndale, Lomita, Long Beach, Lynwood, Malibu, Manhattan Beach, Maywood, Monrovia, Montebello, Monterey Park, Norwalk, Palmdale, Palos Verdes Estates, Paramount, Pasadena, Pico Rivera, Pomona, Rancho Palos Verdes, Redondo Beach, Rolling Hills, Rolling Hills Estates, Rosemead, San Dimas, San Fernando, San Gabriel, San Marino, Santa Clarita, Santa Fe Springs, Santa Monica, Sierra Madre, Signal Hill, South El Monte, South Gate, South Pasadena, Temple City, Torrance, Vernon, Walnut, West Covina, West Hollywood, Westlake Village and Whittier do not have a similar law mandating condoms as a condition to receive a film permit. However, two cities in Ventura County, Moorpark and Simi Valley, are contemplating passing similar municipal laws.

Also, the act does not apply to the 144 unincorporated areas of Los Angeles County. The act is not law in Ventura County or any other county in California, at the time this article was written.

The act is law only in the City of Los Angeles. However, it is the law and must be adhered to if a production is going to occur at a location that is within the City of Los Angeles. If a production is outside the limits of the City of Los Angeles, then the use of barrier protection is not a required condition to securing a permit.

Who Is Required to Secure a Permit for Production ?

If you are going to produce a commercial shoot in any of the following areas; the County of Los Angeles, the City of Los Angeles, Diamond Bar, City of Industry, Lancaster, Palmdale or Southgate you must apply for a receive a permit through a non-profit organization called FilmLA Inc. (FilmLA.com). Other cities may have their own permit process so it is imperative that you check with each city’s permit department and remain compliant with those laws. However, for purposes of this article we will focus on productions within the City of Los Angeles.

Without or without condom, it should be noted that shooting a commercial production within the City of Los Angeles without a permit is considered a misdemeanor.

Since the fall of 2009, Section 41.20 of the Los Angeles Municipal Code (LAMC) makes it a misdemeanor offense for production companies to film without a permit. Since the then, the LAPD’s Contract Services Section Film Unit has made arrests and filed charges against film producers for Section 41.20 violations. Under Section 41.20, an unpermitted producer’s equipment can also be confiscated until the time of the court hearing to insure that the producer appears at the court. Obviously, if the producer is renting equipment by the day this could end up being more costly that the fine itself for failing to secure a permit. Needless to say, failing to secure a permit can not only end in heavy costs and fines but also jail time since a misdemeanor offense is punishable by incarceration for up to one year in jail.

What Is a Commercial Shoot ?

Under the City of Los Angeles Planning and Zoning Code section 12.22(A)(13), which requires all producers to secure film permits, it is safe to assume that every adult production would be considered a commercial shoot and thus would require film permit, even it occurred in the producer’s own home. The one area that is still somewhat gray is whether a webcam production would require a permit. And taking the act one step further, would a webcam show involving penetration between a husband and wife for commercial purposes require a permit and, if it occurs within the City of Los Angeles, a condom to prevent the exchange of bodily fluids between two married and consenting adults? This is one area of the law that has yet to be defined.

Do Content Trades Now Require Condoms?

The short answer is yes. As you may remember from some of my earlier articles about the condom law I had indicated that any attempt by Cal/OSHA to impose condoms would not apply to content trades. Cal/OSHA is a regulatory body that only has power over employment practices. A true content trade between performers would not involve employment issues and therefore Cal/OSHA had no legal authority to enforce condoms be used in that regard. However, now that condoms are no longer tied to the issue of employment, but rather as a condition of receiving a film permit, even a content trade would be considered a commercial shoot. Condoms would therefore have to be used on any hardcore production within the City of Los Angeles. As I noted above, the Act is so far reaching even a married couple in the privacy of their own home performing on web cam together may need a permit and a condom to stay compliant of the law.

Enforcement of the Act

Over the past several weeks I have received numerous phone calls from agents, producers, directors and even performers as to how the act will be enforced. At the time of writing this article that question remains unresolved and unanswered. Since the act has been signed into law by Mayor Villaraigosa there has been discussion about forming a committee to decide how to enforce the act. Within the provisions of the act there is a language that allows the City of Los Angeles, through its contracted agency, FilmLA Inc., to charge additional fees to pay for “inspectors to ensure compliance with conditions on film permits.”

Without going into a full analysis of First Amendment law, the act may be subject to a future legal challenge based on the its lack of content neutrality. Meaning that the city should not be able to impose a tax, which is what these additional fees may in fact be, based solely on the adult nature of the productions. This is still an area of law that is in flux though.

For argument’s sake, let’s assume that the law is not challenged. The obvious question is how will the city ensure compliance? While it is not known at this point how compliance will occur, my assumption will be that it will follow the same path that the Los Angeles Police Department used to ensure permit compliance in the past.

In past years I had been called to set several times by several different clients where a “bust” by LAPD was occurring. Previously, the San Fernando Valley vice unit of LAPD was responsible for policing and enforcing the permit law in regards to adult productions. Then, towards the end of 2007 Mayor Villaraigosa started a special unit that would target unpermitted productions, mainstream and adult. This unit comprised of uniformed and plain clothes officers.

Often the LAPD permit enforcement unit would work closely with FilmLA Inc., and perform spot checks on known shoot locations. FilmLA Inc., would provide shoot location information to the unit and a patrol car would be sent to drive by the location to check to see if there was any abnormal activity at the location, meaning, if someone was shooting at that location on that day without a permit. If they suspected that someone was shooting they would knock and ask questions and in some instances, when no one answered and they would jump a fence and/or gate to investigate.

While it is impossible to say with certainty whether this will be the way to enforce the act, I would suspect that it may be. Others have talked about requiring a nurse to be on all permitted sets as well to ensure compliance. There have been rumors that the City of Los Angeles will subpoena information from the agents and producers to learn the usual (unpermitted) adult production shoot locations. I doubt that this will happen but it is certainly a possibility. This type information has been subpoenaed in the past by Cal/OSHA from talent agents in the industry.

Penalties for Failure to Use a Condom

The actual law does not contain any information as to the possible penalties for shooting adult content within the City of Los Angeles with a permit and without barrier protection. I am sure that the committee previously noted will be setting the penalties associated with the act. As for shooting without a permit, those penalties have been previously noted. At this time, I do not know if there will be an enhanced violation for shooting adult content without a permit and without a condom.

It is the opinion of this author that it is just simply too early to begin to panic over this law. It does not appear that the city has yet formed the committee to devise the manner of enforcement or the penalties associated with it. There has been discussions of a March 5 date that the law will be implemented.

Hopefully, by then there will be more information released by the City of Los Angeles. I have talked with numerous people in the industry about their desire to move to Las Vegas, Miami or Phoenix to produce. It’s not necessary to leave Los Angeles to produce. Just based on the geographical limitations of the law, it is rather easy to produce around it.

As more information becomes available I will update this article. This author hopes that by the time this article is in print, the City of Los Angeles will have promulgated rules on to how to comply with this new law and the penalties involved for violating it. In my next article I will discuss those issues as well as tips on how to avoid being found in violation of the act.

July 30, 2012 0

The Condoms are Coming

http://www.xbiz.com/articles/137838/fattorosi

With words similar to those, Paul Revere ushered in a revolution that transformed the face of a nation. Similarly, on June 7, Cal/OSHA changed the shape of this industry’s future which might ultimately lead to a revolution in adult entertainment. I was able to attend the meeting and even tweeted the discussions from the meeting live via my Twitter account. As it has been reported, the turnout was strong with numerous industry people in attendance representing all aspects of the industry.

What was quite clear from the meeting was the absolute distrust the industry has for those on the Cal/OSHA Board that have drafted the proposed regulations. There were statements made during the meeting that Cal/OSHA was attempting to regulate the industry out of existence for moralistic and religious reasons or perhaps that the AIDS Healthcare Foundation, the Pink Cross Foundation and Cal/OSHA were in some way working together to drive the industry out of California.

I can certainly understand how many in the industry may feel this to be true, from my experience dealing with Cal/OSHA and state safety regulations, that is simply not the case. Cal/OSHA is attempting to bring this industry in line with numerous other industries that are regulated in regards to employee safety. Cal/OSHA actually feels that the proposed regulations are less intrusive and harsh than the current regulations. While the new regulations proposed by Cal/OSHA are yet to become law and may not for another year, it was clear from their meeting that condoms and other barrier protection methods are now required and are currently the law in porn.

Under the proposed regulations, barrier protection and condoms may not have to be utilized for oral sex scenes when certain requirements are met by the producers and talent. However, other than that one issue, barrier protection and exposure issues will change how adult entertainment is produced and consumed.

Unfortunately due to the heated nature of the meeting, not all issues could be covered and there are still numerous discussions that are necessary as to the most basic issues such as how to dispose of the used barriers, how to handle clothing used on set, record keeping requirements and employee training issues. This article will focus on the proposed regulations and want it means to producers and talent.

INDEPENDENT CONTRACTORS OR EMPLOYEES ?

One of the first issues to be raised during the meeting was that the proposed regulations only apply to employees and not independent contractors. Numerous performers and producers spoke up and attempted to declare themselves independent contractors and thus not bound by the regulations. Cal/OSHA did not directly address the IC vs. EE issue and merely referred the audience to the California Labor Code and existing case law.

Rest assured that for purposes of the proposed regulations, performers are indeed employees, even if only for a day, of the hiring studio. However, under the tax code, many of those same performers may actually be independent contractors. There are two different legal tests to determine employee status under the California Labor Code and the U.S. Tax Code. According to the Department of Industrial Relations of the state of California, the California Supreme Court has adopted the “economic realities test” as noted in S. G. Borello & Sons, Inc. vs. Dept. of Industrial Relations (1989) 48 Cal.3d 341. The economic realities test sets forth several factors for determining whether someone is an independent contractor or employee:

Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
Whether or not the work is a part of the regular business of the principal or alleged employer;
Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
Whether the service rendered requires a special skill;
The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
The length of time for which the services are to be performed;
The degree of permanence of the working relationship;
The method of payment, whether by time or by the job; and,
Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Even where there is an absence of control over work details, an employer-employee relationship will be found if (1) the principal retains pervasive control over the operation as a whole, (2) the worker’s duties are an integral part of the operation, and (3) the nature of the work makes detailed control unnecessary. (Yellow Cab Cooperative vs. Workers Compensation Appeals Board (1991) 226 Cal.App.3d 1288).

There is little doubt that a performer would be determined to be an employee under the above noted tests. Several studios have already been fined by Cal/OSHA and to this author’s knowledge none have been overturned on appeal. Most recently, Hustler Video was fined over $14,000 by Cal/OSHA for the lack of barrier protection on set, lack of a blood borne pathogen plan as well as other infractions. According to an article on XBIZ.com on April, 5, 2011, Hustler plans on appealing its fine. However, there has been no recent news as to that particular case.

The only potential exception this author can see to the regulations is when performers coproduce a scene and trade content with each other. As long as there is no monetary compensation offered as payment for services, then more than likely, Cal/OSHA would not determine that a content trade situation to be employment.

Getting past the IC vs. EE argument, what does this mean for the industry and how will the proposed regulations effect content production in California on a daily basis?

Condoms for blow-jobs? First, the proposed regulations require condoms and/or barrier protection (dental dams) for all sex scenes where there is a possibility of an exposure by a performer to the bodily fluids of another performer. The only exception to this has been carved out for mainstream studios in so much that saliva has not been classified as a bodily fluid. The reason for this exception is probably apparent to everyone except Cal/OSHA.

The only exception to the condom/barrier rule is for oral sex scenes and only when both performers have a clean DNA PCR HIV test as well as clean gonorrhea and chlamydia test results within 14 days of the scene and have both been completely vaccinated for Hepatitis B and HPV.

It should be noted that the proposed regulations call for urine testing as well as throat and anal swabbing for gonorrhea and chlamydia for both male and female performers. It should also be noted that it takes a series of three injections over the course of six months for someone to be fully vaccinated for hepatitis B. Therefore, all performers should immediately seek hepatitis B vaccinations so as to insure they can continue to work once the proposed regulations actually take effect.

If a performer is not properly vaccinated or does not have a clean test, then condoms/barrier protection must be used at all times.

No more facials? The next question is — what about the money shot? According to the proposed regulations ejaculate cannot be placed into any orifice and or on any non-intact skin. In layman’s terms, cream pies, facials and/or swallowing will no longer be allowed. Ejaculate can only make contact with intact unbroken skin found on a performer’s breasts/chest, back, legs and feet. Obviously, any producer is still free to use non-harmful fake ejaculate to simulate real cum or squirting.

If for some reason, real human ejaculate or bodily fluids other than saliva does find its way onto broken skin and or an orifice — that would be considered an “exposure” and immediate medical attention must be provided and documented by the employer. Further, the employer must provide post exposure testing and all results recorded in accordance with Title 8 of the California Code of Regulations Division 1, Chapter 7.

Now that AIM is gone what’s next? So who’s going to be paying for all this testing, vaccinations, record keeping and medical treatment because of wayward money shots? According to the proposed regulations, all medical testing fees, treatment and record keeping requirements must be paid for by the producers and studios. Which producer, well that answer wasn’t so clear according to Cal/OSHA.

Basically, Cal/OSHA’s position is that the employers (studios and producers) can ban together to create cooperatives to negotiate with medical care providers and testing centers to bargain for the best price and therefore it will even out over the long run. Cal/OSHA assumes that all producers and studios will be “piggybacking” off each other’s tests. Further, these new additional costs cannot be passed on to the performers or talent agents. It is solely the responsibility of the employer to pay for these costs. On the bright side for the studios and producers, they will now be able to dictate exactly where talent will receive their testing from.

The condom police? So how is Cal/OSHA going to enforce these new regulations once they go into effect? Are they going to be sending Cal/OSHA’s cops in lab coats and environmentally friendly smart cars in droves to Porn Valley to peak in on everyone? The answer might be yes.

According to Cal/OSHA, enforcement will occur in two ways. The first and most obvious is because of an employee (performer) calling into Cal/OSHA’s offices and reporting a violation of the regulations. This alert will mandate an investigation by their offices. They literally have no choice and must open an investigation and look into the performer’s complaint. Thus, that is the easiest and quickest way to get Cal/OSHA knocking on your door. Be aware that a complaint by a performer can be made anonymously as well.

The second is what the Cal/OSHA Board referred to as a sweep. It is possible that they will send out a contingent of inspectors on a regular basis to do spot checks on studios and producers. At least the ones they can locate. In my previous experience I have seen Cal/OSHA perform “sweeps” on rare occasion and do not think that will be a likely occurrence. However, it may occur once the proposed regulations take effect just as a gentle reminder that compliance is mandatory.

You may be asking how can Cal/OSHA determine the difference between a disgruntled performer from a competitor or even a group such as AIDS Healthcare Foundation making an anonymous report. I don’t know how they can but Amy Martin from Cal/OSHA did indicate that they have been dealing with this very issue with other industries and have developed the ability to determine the difference. It should be noted that only a complaint from an actual performer mandates an investigation. All other complaints do not require an investigation and Cal/OSHA has the discretion to take no action on a report of a violation.

Vegas baby, Vegas! Finally, one last point that has been overlooked by other writers, is there a threat of federal regulation. Cal/OSHA made it very clear that before their proposed regulations can go into effect they must first be approved by the federal OSHA. Which means that, once approved by federal OSHA, these same regulations can be adopted by any other state. In essence, the discussions and the debate, the industry is currently having are extremely important since we may not get another chance to debate these issues.

It is this author’s opinion that once approved and adopted in California, these regulations will eventually be adopted and approved by other states. I would not be surprised to see a push for states such as Nevada, Florida and Arizona to pass similar legislation.

Viva la revolucion! The proposed regulations are over 17 pages long and are quite involved. I have only been able to touch briefly on some of the more important aspects of the proposed regulations. I strongly suggest that everyone read and digest the regulations and try to understand what they will mean to the future of not only California adult entertainment but in general the industry in the U.S.

Will these regulations cause the industry to pack it’s collective bags and find greener pastures elsewhere? Will it cause it to revert back to the pre-Freeman underground days of lore or will it simply cause the studios to treat the performers better and adopt the practices outlined? At this point, no one knows. Whichever it may be, certainly there is a revolution afoot.

July 30, 2012 0

Porn, Privacy, HIPAA – Redux

http://www.xbiz.com/articles/124370/fattorosi

In February, the AIDS Healthcare Foundation took their fight against AIM and the adult industry to the authorities of the federal Office for Civil Rights, a federal agency under the U.S. Department of Health and Human Services that enforces HIPAA, the California Office of Health Information Integrity enforcement Unit and Los Angeles County’s Health Facilities Inspection Division.

Rhett Pardon, of XBIZ, quoting AHF’s letter stated, “The authorization is essentially a waiver of privacy rights that is against public policy,” the letter said, citing Civil Code § 56.37. “Disclosures of testing results pursuant to such an invalid authorization would therefore appear to breach the actors’ privacy rights.”

The U.S. Department of Health and Human Services will now investigate whether AIM has violated California Civil Code § 56.37 as well as federal law. Jeffery Douglas, attorney for AIM, has stated that AIM’s HIPAA release has been vetted by experts in the privacy law and HIPAA and that AIM stands behind its release.

So what happens now and what does this mean to the industry and more specifically to performers and producers of adult content? If the investigation concludes that AIM’s release is too broad, their release may have to be rewritten, limiting who, how and for how long testing results may be disclosed. This may change how the industry handles the issue of testing between producers and performers. Access to testing results by producers may have to be blocked with only performers showing each other test results prior to shooting.

Performers themselves could share testing results with the producers though. There is no restriction on an individual’s rights to share their medical history or test results with whomever they wish.

Obviously, this issue will continue to evolve and everyone must stay informed as to how HIPAA may change how the industry does business. Cal/OSHA will be holding hearings later this month (June 29, 2010) as to the use of condoms on adult sets.

The original article “Porn, Privacy and HIPAA” was published in the summer of 2009 in XBIZ directly after the last HIV outbreak in the industry, however the issues covered in it remain relevant. The following are excerpts from that article.

Within HIPAA are confidentiality provisions of the Patient Safety Rule that prevent, in certain circumstances, the public disclosure of private healthcare information of a patient by a medical provider, health plan and health care clearing houses.

However, HIPAA does not apply to employers. The Privacy Rule does not prevent your employer from asking you information about your health if your employer needs the information to administer sick leave, workers’ compensation, wellness programs, or health insurance. However, if your employer asks your health care provider directly for information about you, your provider cannot disclose the information in response without your authorization.

It should be noted that if your private medical information is disclosed by a medical provider, that medical provider or their employee may face civil as well as criminal liability. A Los Angeles woman was indicted under the federal HIPAA privacy law for accessing the private medical records of celebrity patients at UCLA Medical Center and selling information obtained from those files to a national media outlet. The celebrities whose records were breached reportedly included actress Farrah Fawcett, singer Britney Spears and California first lady Maria Shriver.

The Privacy Rule allows medical providers, such as AIM, to disclose protected health information, without authorization, to a public health agency that are legally authorized to receive such reports for the purpose of preventing or controlling disease, injury, or disability. In this case, the Los Angeles County Public Health Department would be such an agency. Generally, medical providers are required to limit the protected health information disclosed for public health purposes to the minimum amount necessary to accomplish the public health purpose. Unfortunately, HIPAA prevents the public disclosure of those that are infected or who may have been exposed.

However, individual performers that might be afraid that they were exposed could still inquire into the identity of those exposed to determine if they if fact were. Private disclosure in the interest of public health may be allowable. Under the Privacy Rule, a medical provider may disclose protected health information to a person who is at risk of contracting or spreading a disease or condition if other law authorizes the covered entity to notify such individuals as necessary to carry out public health interventions or investigations. For example, a covered health care provider may disclose protected health information as needed to notify a person that (s)he has been exposed to a communicable disease if the covered entity is legally authorized to do so to prevent or control the spread of the disease.

However, performers must be careful about sharing what information they may learn. An infected performer that is “outted” by another individual can file a lawsuit under the common law theory of public disclosure of private facts. If a false report is made as to a performer’s HIV positive status, that performer may have a claim for false light. This is were the plaintiff is placed into a false light in the eyes of the public that may damage their career and cause emotional distress. Obviously, if someone mis-reports that a performer is HIV positive or even exposed to HIV that can cause great distress as well as the lost of a career. Damages for both public disclosure and false light could be extensive.

Overall, in an adult industry that lays its self open to all that consume its product, there is still a need for privacy within the industry.

July 30, 2012 0

Porn, Privacy and the HIPAA

http://www.xbiz.com/articles/113008/fattorosi

How can an industry that bears all to its consumers ever consider privacy to be a hot topic? The story of the possible infection spread rapidly throughout the community and even into mainstream press. I was personally contacted by Los Angeles’s Tribune affiliate KTLA for a quote after the reporters there picked up the story from the Los Angeles Times.

As I write this article, what did not make it into the press were the actual identities of the performers infected or exposed in this most recent outbreak.

Dr. Sharon Mitchell, director of the AIM Healthcare Foundation, declined to make the identities of those performers known, citing confidentiality issues.

What Mitchell was referring to was a rather unknown law within the industry, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Within HIPAA are confidentiality provisions of the Patient Safety Rule that prevent, in certain circumstances, the public disclosure of private healthcare information of a patient by a medical provider, health plan and health care clearing houses.

However, if your employer asks your health care provider directly for information about you, your provider cannot disclose the information in response without your authorization.

It should be noted that if your private medical information is disclosed by a medical provider, that medical provider or its employee may face civil as well as criminal liability.

Los Angeles woman was indicted under the federal HIPAA privacy law for accessing the private medical records of celebrity patients at UCLA Medical Center and selling information obtained from those files to a national media outlet. The celebrities whose records were breached reportedly included actress Farrah Fawcett, singer Britney Spears and California first lady Maria Shriver.

Many posters on adult message board GFY.com, as well as performers I talked to immediately after AIM reported the outbreak, indicated that they were not pleased that more information was not released. Several performers indicated that they felt as though it was their right to know since they could also become infected.

Unfortunately, until an outbreak such as this becomes a matter of public health, the information must remain confidential. The Privacy Rule allows medical providers, such as AIM, to disclose protected health information, without authorization, to a public health agency that is legally authorized to receive such reports for the purpose of preventing or controlling disease, injury or disability.

In this case, the Los Angeles County Public Health Department would be such an agency. Generally, medical providers are required to limit the protected health information disclosed for public health purposes to the minimum amount necessary to accomplish the public health purpose.

Unfortunately, HIPAA prevents the public disclosure of those that are infected or who may have been exposed.

However, individual performers that might be afraid that they were exposed could still inquire into the identity of those exposed to determine if they in fact were. Private disclosure in the interest of public health may be allowable.

Under the Privacy Rule, a medical provider may disclose protected health information to a person who is at risk of contracting or spreading a disease or condition if other law authorizes the covered entity to notify such individuals as necessary to carry out public health interventions or investigations.

For example, a covered health care provider may disclose protected health information as needed to notify a person that (s)he has been exposed to a communicable disease if the covered entity is legally authorized to do so to prevent or control the spread of the disease.

Other posters on GFY.com indicated that once a performer gained the knowledge of the identities of the infected and exposed individuals they should make it known to the rest of those in the industry.

Some even argued that this was allowable since HIPAA does not apply to individuals that do not have access to the medical records of those infected and or exposed. However, one must be aware that even though HIPAA may not prevent such a disclosure, there are common law torts that can result in a civil lawsuit if certain private facts are disclosed.

An infected performer that is outed by another individual can file a lawsuit under the common law theory of public disclosure of private facts. If a false report is made as to a performer’s HIV positive status, that performer may have a claim for false light.

This is where the plaintiff is placed into a false light in the eyes of the public that may damage his/her career and cause emotional distress. Obviously, if someone misreports that a performer is HIV positive or even exposed to HIV that can cause great distress as well as the loss of a career. Damages for both public disclosure and false light could be extensive.

Overall, in an adult industry that leaves itself open to all that consume its product, there is still a need for privacy within the industry. However, it is apparent that the manner in which this last situation was handled was not to the satisfaction of other performers, directors, agents and producers in the San Fernando Valley.

They felt as though they deserved to know which performers were actively infected and which were on the quarantine list so as to protect themselves. Immediately after the outbreak I talked with numerous performers. Some of which indicated that they would be either leaving the industry, no longer doing boy/girl scenes, or rethinking what sexual acts they will do from this point forward. Lack of information can breed resentment and doubt.

There is little doubt in this writer’s mind that sometime in the future, this issue will once again reappear.

How the industry handles it and what comes to light in the middle of a media storm will affect the industry’s ability to remain autonomous. There has been a push once again to regulate the industry through legislation and public policy. Failure to heed these warnings can result in the regulation of the industry by groups on a national level that do not have the industry’s best interest in mind.

July 30, 2012 0

Wages and Hours: Paying Overtime Correctly

http://www.xbiz.com/articles/109457/fattorosi

With the downturn in the economy, companies are often finding themselves laying off workers in order to save money and meet expenses. As I discussed in a previous article it is often necessary to let a portion of a company’s workforce go in order to cut overhead. With a reduction in force often overtime is necessary. In order to stay within federal as well as state employment guidelines, proper accounting has to be kept to ensure that overtime rates are properly paid. Failure to do so can result in litigation as well as penalties and interest on the unpaid back wages.

In California, nonexempt employees over the age of 18 and any minor employees not prohibited from working in the subject employment shall not be employed for more than eight hours in a workday or for more than forty hours in any workweek unless they are paid the appropriate overtime wages. For nonexempt employees any time beyond eight hours but less than twelve hours in any typical workday, that employee shall be paid at a rate one and one-half times their normal rate of pay. For any work performed in excess of twelve hours in a day that employee shall be paid at a rate equal to double the regular rate of pay. These rules are also typically true for all states within the United States.

There numerous exceptions to the overtime rule though. The main exception is for executive employees. Executive employees are defined as;

Whose duties and responsibilities involve the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; and
Who customarily and regularly directs the work of two or more other employees therein; and
Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
Who customarily and regularly exercises discretion and independent judgment; and
Who is primarily engaged in duties, which meet the test of the exemption;
An executive employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.

As an executive employee, that particular employee is not entitled to overtime wages. However, in order to meet the criteria of a managerial employee, one must be more than merely a supervisor of two or more employees. The managerial exempt employee must be in charge of the unit, not simply participate in the management of the unit.

There are other exceptions that may apply to your business, however, many are state specific and it is highly recommended that you speak with an attorney familiar with the employment laws of your particular state to stay informed of other exemptions to overtime laws.

One of the most misunderstood areas of payment of overtime laws by employers is whether overtime must be paid to salaried employees. The short answer is yes, depending on whether that employee is exempt or not. Obviously, executive employees that meet the above mentioned requirements are exempt from overtime laws whether they are paid hourly, commissions or salary or some combination thereof. Professional employees are usually exempt as well, i.e., in house attorneys and accountants. All employees, whether hourly or salary, must be paid overtime wages if they are not exempt and work over eight hours a day or forty hours per week.

This is usually where I see the most litigation as an attorney. Most companies realize that hourly employees that work in the warehouse should be paid overtime. Where most companies do not even realize that overtime needs to be paid is in regards to the salaried employees in the company’s offices. Usually what occurs is that a salaried employee is terminated and seeks legal counsel in regards to the termination. As part of the intake process the terminated employee learns that he/she should have been paid overtime but was not. This usually results in a complaint being filed with the labor board administrative court or with a civil court of law.

If a salaried employee needs to be paid overtime the most difficult question for most employers is how to calculate those overtime hours. If you are paid a salary, the regular rate is determined as follows:

Multiply the monthly remuneration by 12 (months) to get the annual salary.
Divide the annual salary by 52 (weeks) to get the weekly salary.
Divide the weekly salary by the number of legal maximum regular hours (40) to get the regular hourly rate.

In California, if the employee was not paid overtime correctly, according to Labor Code section 203, “the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefore is commenced; but the wages shall not continue for more than 30 days.” Thus, not only would the employer be liable for the back wages, but also an additional month of salary after the employee is no longer employed as a penalty against the employer. Obviously, this can be quite costly for the employer.

What if an employee decides that he or she should not be paid overtime wages? Perhaps, the employer is a small family run company and one of the employees decides that as a matter of sacrifice to keep their job and to help the employer during tough economic times, they will waive their rights to overtime wages. In California, even if they do so in writing, that does not mean that later that same employee, when terminated, cannot come back and make an overtime claim against the employer. An employee cannot waive their rights to overtime or even minimum wage.

It is imperative that employers understand wage and overtime laws so that they may protect themselves from post termination or lay off claims. Ignorance of the law or a lack of intent is not a defense to wage claims nor is it a defense that the employee volunteered and agreed to waive their rights to overtime. Improperly paying your employees is a ticking time bomb waiting to explode in regards to your employment issues. There have been numerous class action lawsuits filed against large institutional employers for failing to classify employee correctly. In tough economic times the instances of employment litigation usually increases as employees are laid off or terminated. Again, it is recommended that before an employee is terminated or laid off that all employers seek the advice and counsel of an experienced attorney in employment law.

July 30, 2012 0

The Hiring Process

http://www.xbiz.com/articles/108476/fattorosi

In my last article, we discussed the potential legal problems with terminating or laying-off employees. However, one of the best ways to prevent legal pitfalls is to screen and hire your employees well. Often termination issues can be resolved in the screening process.

Too often, employers do not avail themselves of the recommendations made by former employers. One of the best tools to determine whether a candidate would be a good fit for your organization is to ask that candidate’s former employer.

However, you do have to be careful in the types of questions that are asked. You can certainly ask if the former employer would recommend your candidate for the position they have applied for. You may also ask the former employer to describe the candidate’s skills in regards to the employment relationship. You may also confirm length of employment.

What you do not want to ask are questions about the candidate’s personal life, family, sexual orientation, health, issues with worker’s compensation claims or benefits, issues with any possible prior litigation against the former employer, as well as any information pertaining to the candidate’s religious, political or social views.

If you deny a candidate employment and that candidate does instigate a discrimination lawsuit, the less information you have in regards to the their personal life, health issues, as well as their views and prior history unrelated to their ability to perform the essential functions of the position offered the better for your defense of the matter. Now this is not to say, that you cannot look at your candidate and make a determination that they would not be a “good fit” within your organization. Obviously, personality can sometimes be more important that skills, depending on the job, for example, a sales position or even a receptionist’s position.

I do recommend that you do some basic background research as to your candidate though. If your candidate is in their twenties or thirties in age, it is more than likely that they may have a Myspace page. That page may be very telling as to that candidate’s personality. You can find out what music they listen to, what their favorite books are, what their favorite television shows are. You can also see who they are friends with in your organization and may even be able to read some of their blog posts.

Certainly, Myspace will not give you all the information as to someone personality. It can be a mirror into their lives. Obviously, this seems to contradict my previous comments on what you should know about your potential candidate. The difference is that you should not be asking a previous employer for potentially private information about a candidate, however, if that candidate has openly disclosed this information for the world to see on their Myspace page that is a completely different situation.

Obviously, an employer cannot discriminate in regards to the hiring of a potential candidate based upon a protected class such as race, national origin, religion, shade of skin color, age, sex, sexual orientation, pregnancy status, medical disability and or sometimes even English language skills according to case law interpreting Title VII (Civil Rights Act of 1964).

Questions pertaining to any of these protected classes would be highly improper during the interview process. As an employer interviewing a candidate you want to avoid question about religious holidays, what country they or their ancestors are from, how old the candidate is and whether they have any medical disabilities. And as difficult as it maybe, if your candidate does volunteer information about such topics, that information cannot be used to deny a position to them.

You would also be well advised to stay away from any questions dealing with drug use or drug dependency. Preemployment drug testing is still an emerging issue in the law. Even cities such as San Francisco have passed ordinances barring drug testing of certain employees or for certain reasons.

Therefore, it is highly recommended that before you decide to insert a pre-employment drug screening into you hiring process that you consult with a local attorney that is well versed in employment law. Asking someone to reveal their medical history as a condition to seeking employment is legally risky for the employer. Remember that your candidate may have to reveal their use of a doctor’s proscribed medication that could show up in their test results, thus revealing an underlying serious medical condition.

It certainly appears that an employer’s hands are cuffed when it comes to screening potential candidates. Realistically, that is certainly true when it comes into investigating more than their abilities to perform the job duties of the position they are applying for.

However, it is certainly recommended that you carefully review their resume for inconsistencies. Perhaps there is a gap in their resume where they did not appear to work for several years. Obviously you can inquire as to that issue. They may not have listed references. As stated earlier, you should talk to every reference listed. If for some reason your candidate did not list their last employer as a reference you can inquire as to why they were not listed as a reference.

It is also highly recommended that you require some sort of writing sample from your candidates in your employment advertisement. A writing sample can speak volumes about a potential candidate. You may also give the candidate several tests during the interview, i.e., typing tests, mathematical tests, spelling and grammar tests, as long as those tests will have a direct correlation to the job duties they will be performing. Further, those tests will have to be administered to each person interviewed.

July 30, 2012 0

Dealing With Your “Former”

http://www.xbiz.com/articles/106291/fattorosi

One of the most hotly litigated areas of law in hard economic times is employment law, and more specifically, the termination of employees. Often, based on the pure realities of the situation, companies must downsize in order to remain competitive. However, in order not to fall into a situation that could result in potential litigation with a terminated employee, basic employment laws and regulations must be adhered to.

Before one can discuss the termination of an employee, it is first important to define what an employee is. In California, Labor Code Section 3357 controls the issue of whether someone is an employee. However, this is a rebuttable presumption, and the actual determination of whether a worker is an employee or independent contractor depends on a number of factors.

In short the “economic realities” test adopted by the California Supreme Court in the case of S. G. Borello & Sons Inc. vs. Department of Industrial Relations (1989) 48 Cal.3d 341 has set forth the factors used to determined whether an one is an employee or an independent contractor. In regard to the economic realities test, the most significant factor to be considered is whether the person to whom service is rendered has control or the right to control the worker both as to the work done and the manner and means in which it is performed. If not, then the person may be considered an independent contractor.

Assuming that the person terminated is an employee, it is important to keep in mind that California is an “at will” employment state. This basically means that anyone can be fired at any time for any lawful purpose, if there is no employment contract. However, no one can be terminated based upon a protected class — race, color, religion, national origin or sex as well as age and disability. Disability also includes pregnancy.

If an employee is to be terminated for cause — meaning that the termination is based on performance issues of that employee — and the employee fits into one of the protected class, it is imperative that the employer document the performance issues completely before any such termination. Often, verbal warnings are not sufficient, and it is necessary to document the employee’s performance or insubordination issues well in advance of the termination. Without such written warnings employers can find themselves in a defensive position attempting to explain why the employee’s termination was not a result of discriminatory termination practices.

If the employee is to be terminated without cause and his/her termination is due to the economic business realities of the company’s current financial situation, it is more difficult to document the need to lay off the employee. It is recommended that, if possible, layoffs be conducted in groups and not of single employees. If a layoff occurs in group fashion, it will be easier for the employer to justify the layoff of anyone who might be one of the protected classes.

Now that the employer has terminated or laid off the employee, is the relationship concluded? The simple answer usually is no; even if the employee has been terminated for cause, the employer still might have to defend a wage, hour or overtime claim in front of the Division of Labor Standards and Enforcement. The former employee also might file a claim for unemployment insurance benefits.

How this next step proceeds usually depends on why the employee was terminated, how the employee was terminated and whether during the employment the employer properly classified and compensated the employee.

If the employee was terminated without cause and was laid off, they would be entitled to benefits through unemployment insurance. If the employee was terminated for cause, he or she still might file an unemployment claim; however, if the employer has documented the employee’s poor performance or insubordination, the claims can be challenged and often defeated in an administrative court.

If the employee was not properly paid for overtime, meal breaks or for their overall compensation, that employee can file a wage and/or overtime claim with the Labor Board or directly with a court of competent jurisdiction. If litigation does ensue, it often can be costly for the employer. Therefore, it also is imperative that employers keep accurate records and time slips during the employee’s term of employment. Again, as with any litigation, the most important aspect to remember is to document, document and document some more. Accurate time slips including break times are necessary to defend any claims of improper payment of wages.

A quick note about the classification of employees: Overtime at a rate of one and a half times their usual pay rate must be paid if an employee works more than eight hours per day, whether that employee reaches 40 hours per week or not. This is a recent change in the law. It use to be that overtime would not be due and owing to an employee until after that employee reached 40 hours worked in a calendar week. If an employee is a supervisor and has at least two other subordinate employees under their direct control, they can be classified as managers and not be paid overtime. Whether an employee is an hourly or salaried employee is immaterial to whether they need to be paid overtime.

It also is important to note that most states require that a terminated or laid-off employee be provided their last paycheck within a certain amount of hours and or days from the date of the separation. Therefore, it usually is advisable to provide the former employee with all wages due at the time of the actual notice of separation.

Obviously this article is not exhaustive as to the legal requirements involved with the termination and layoff of employees. Nor is it complete as to the classification of employees or payment of overtime wages. It is strongly recommended that any company seek the advice and counsel of both an attorney well-versed in employment law and a specialist in human resources.

Often, many of the problems with the termination of an employee can be solved in the hiring process. Knowing whom to hire and not hire often is the best defense against possible future claims and lawsuits. Choosing the right potential candidate(s) is a minefield that has to be navigated carefully. Just as with termination, discriminating against certain potential candidates can lead to claims of discrimination and potential litigation.

July 30, 2012 0

Balancing Talent Agents, Performers and Producers

http://www.xbiz.com/articles/104087/fattorosi

There has been much debate recently as to the role talent agents play in the adult entertainment industry.

In November 2008, seven California-based licensed and bonded talent agencies came together and formed the Adult Entertainment Agents Trade Association. The mere fact that the “legal” talent agents have joined to form a trade association has caused a stir amongst numerous producers and performers alike. There has been much discussion as to talent rates and fear that the association will result in price fixing. This article will address the legal ramifications of what role an agent has and what this means to producers and performers.

First off, one must define what a talent agent is. Many in the industry try to blur the line between agents and managers. An agent is a person that secures employment for a performer. A manager is just that — he or she manages a performer’s career — but cannot legally secure employment for their client.

In order for an agent to be “legal” that agent must be licensed and bonded by the state of California. Labor Code section 1700 et al., is the pertinent law in regards to the licensing of talent agents. If an agent is not licensed and bonded, he or she is operating illegally and cannot collect fees from the performers they represent. Moreover, any performer that has paid fees to an unlicensed agent can file a claim with the Division of Labor Standards and Enforcement and receive a complete refund on fees paid to that agent.

A licensed and bonded agent can collect up to a 20 percent fee of the work secured by their agent. An agent cannot collect more than 20 percent as the California Labor Code legally caps this.

What about talent rates? Talent should determine their own rates. Rates cannot be set across the industry by the agents. Doing so can appear to be collusion and price fixing. Rate fixing can result in legal action by producers and can violate antitrust as well as unfair competition laws. Free market conditions should also help determine talent rates.

TALENT AGENCY CONTRACTS: WHAT DO THEY MEAN?
Often performers want to change agents and try to further their careers. What can a performer do in case they want to break their contract with their agent? The best answer is to have a lawyer review the contract before signing it so that the performer can understand what the contract means. All licensed and bonded agents in California use the same contract. Also, all agent contracts in California must be approved by the Division of Labor Standards and Enforcement (DLSE). If an agent is not using an approved contract, that contract cannot be enforced and can be voided by the performer.

Also, if an agent alters the DLSE-approved contract in any way and does not have their new version approved by the DLSE, again it usually can be legally challenged by the performer and determined to be unenforceable. If a performer wants to challenge the legal sufficiency of an agent’s contract, that performer would have to file a Petition to Determine Controversy with the Labor Commissioner’s Office. If declared void, not only will that performer be able to get out of their contract, they will also be awarded a refund of any fees paid to the agent for the year prior to the filing of the petition.

CAN A PERFORMER HAVE TWO AGENTS?
There is an exclusivity clause in the standard contract that states that the performer must remain exclusive to that agent for up to one year if that agent is indeed booking the performer work. If an agent books a performer at least once every four months, then that performer has to be exclusive to that agent. If the agent is not securing work for their client, then a performer can get out of their contract and switch agencies. Obviously, one scene every four months is certainly not enough work to earn a living on. What to do then?

There is no case law on point, but there is nothing that indicates that a performer cannot secure her own employment. California is a right to work state and case law in regards to non-compete clauses state that restrictions on employment are usually not enforceable in California courts. Therefore, it would make sense that if a performer wants, they could seek out their own scenes. However, that performer may still owe a fee to the agent that is representing with him or her.

However, what if a producer tries to hire a performer directly without the first contact being initiated by the performer? In that case the performer should honor their contract with their agent and request that producer book the scene through her agent. If a producer tries to “book around an agent” and knowingly does so, that can be actionable by the agent. It is something referred to as tortuous interference with a business relation. That can result in a civil lawsuit being filed by the agent against the producer.

In short, if an agent is not finding a performer enough work, he or she can find it on his or her own. However, it is recommended that the performer pay the agent no matter how they find the work. If a producer contacts a performer in order to book a scene directly, that performer should refer the producer to her agent to book the scene.

Producers are regularly charging performers kill fees in case the performer does not perform as required by the producer. Kill fees are a legally confusing situation. If a performer flakes on a shoot, the producer will suffer damages. A kill fee is a contract term between the producer and the performer, not between the agent and the performer.

Kill fees cannot be used by an agent to punish a performer for not performing the scene. Also, a kill fee cannot be charged to a performer unless they understood before accepting the job offer that a kill fee is part of the contract for taking the job. A performer can instruct their agent not to book them for any producers that require kill fees. Also, a performer should request all information pertaining to kill fees prior to accepting any scene and that information should be in writing.

If an agent attempts to charge a performer a kill fee without having the performer accept the kill fee as a term of that employment, the agent would be violating their duty to the performer and that performer could file a Petition to Determine Controversy to have any charged kill fees refunded as well as possibly challenging the underlying contract with the agent. Thus, agents charge a kill fee at their own peril.

In conclusion, it should be noted that an agent works for the performer and should be conducting business in a way that is in the best interest of his client. Often this is forgotten and at times it seems like the talent is working for the agent. Producers need to realize that the contracts used by talent agents are valid and do carry weight in court since they are approved by the state of California.

Lastly, talent, agents and producers should work together in determining how content will be produced and for what rate. No one’s interests are served if there is an ongoing dispute regarding the creation of content in the industry.

July 30, 2012 0