I wrote yesterday on the subject of a new California law, commonly referred to as AB-5, being challenged by the NPPA in Federal Court as being unconstitutional and harmful to the livelihood of freelance photographers. Here’s a follow up on that story. It’s always good to be informed.
I’m still researching this matter. My December 19th blog post received a lot of internet traffic, but I’m not the only internet website reporting on this matter. Unfortunately, a lot of the reporting centers on the generalities of the issue and doesn’t really delve into the nuances of the situation. The news is spreading fast and the online discussions are proliferating. Like many of you, I too have questions and concerns.
First, I’m not an attorney and I don’t pretend to be a legal expert on this matter. I own a small photography business in Colorado and consider myself to be a independent contractor, a photo journalist, writer, journalist, artist and small business owner. This is a matter of interest to me, as it has the potential to affect my business and ability to make a living.
The impetus for this new law seems to be related to “gig economies”, and the independent contractors working in that environment. In particular the intent of the law is to address the mis-classification of workers as employees or independent contractors by employers.
There appears to be at least two different legal challenges to the new law, one by the California Trucking Association and one by the American Society of Journalists and Authors as well as the National Press Photographers Association. I haven’t researched the aspects of this matter regarding the California Trucking Association and I don’t have anything to say in that regard.
Here’s the Press Release by the NPPA, which summarizes their concerns.
The new California law in question here is California Assembly Bill 5, or AB-5. Click the link for the Wikipedia article describing the new law which is set to go into effect on January 1st, 2020.
In essence, the new California law is an addition to existing California Labor law. Here is the Wikipedia article describing this matter.
Here’s the actual text of the new California law, AB-5.
Regarding photographers, the primary issue of contention seems to be centered on the claim that some freelancers are affected by the law and others are not. The bill imposes limits of 35 submissions per year by content submitters, thus limiting income from some clients by up to 60-75%.
What I don’t see in the law is any actual legal requirement that photographers must surrender copyright of the photos they take. It sounds like the issue of copyright refers primarily to the actual legal classification of what an “employee” is, and this where things get complicated. If one is classified as an “employee”, based on this bill, they would be subject to the requirement that the content they provide becomes the property of the employer and not the provider. There are numerous threshold tests and definitions in the law as written. It appears to me that the basic intent of the law is to prevent employers from improperly classifying certain content providers as contract workers rather than actual employees for multiple reasons including unemployment insurance and the withholding of payroll taxes.
The primary points of contention in the lawsuit are the legal limitations of submissions by still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists who lose their classification as independent contractors. The lawsuit by NPPA claims that this law violates the First and Fourteenth Amendments to the United States Constitution, and they seek to invalidate the specific provisions in the law by injunctions relating to these issues as spelled out by the lawsuit.
From a personal and business standpoint, I’m not too worried about all of this. As best I can ascertain, these nuanced issues don’t really involve me and my business; however, I can see situations where some writers and photographers may be impacted. It affects only a small segment of the photography business and content providers, and only in the State of California. I would also note, that other states such as Arizona have enacted similar laws to varying degrees and the intention seems to be to improve labor laws in those states.
Stay informed, make sound decisions and don’t jump to conclusions. That’s my advice.