More On The California Freelance Photographer Law

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.

Running A Photography Business Just Got Harder

The NPPA  (National Press Photographers Association) is reporting that the American Society of Journalists and Authors Inc have recently filed a lawsuit against the State of California over a new California law that they claim violates the rights of Freelance Photographers and Journalists, which results in serious harm and threats to the livelihood of those who work as freelancers.

Here is the link to the actual filed lawsuit.

A typical freelancer works as an independent contractor for a client. Copyrights to the images/video they create are the property of the photographer/videographer unless the agreed upon contract specifies that the client receives possession of the copyright. Think wedding photographer for example. If I photograph a wedding, I agree to supply certain products to the client but I own the rights to those images and how they are used outside of the agreed upon terms wedding contract. If the client wants to own the copyright, they must negotiate a price for that ownership. If we don’t agree on transfer of ownership and rights, I own the work.
This law would automatically give complete ownership of the original images to the client and strip the photographer of any future possible income from those photos, such as additional sales or products to people coming to them down the road for copies. The end result is it will drive up the cost of my wedding photography substantially as I’ll have to negotiate an agreement to work at a much higher fee to compensate for my loss of future income. Nobody wins and photographers will ultimately be put out of business because they are trying to protect their sources of income.
Typically, if a photographer works for a company, anything they produce while working for that company is automatically the property of that company.
Freelancers don’t work for anyone but themselves and what they do is contractual work, on a case by case basis. Normally, a photographer agrees to provide services and products to a client and the original creative content remains the property of the creator, unless the creator agrees to relinquish their copyrights. This would be what is called licensing. This law removes licensing from the equation. Technically, anything a wedding photographer creates in pursuit of working for a client now becomes property of the client. This may not be limited to the actual photographs or video, but could in theory also include any intellectual property created to produce that content, such as special processing methods or software or set pieces or backdrops, anything created by the photographer in pursuit of fulfilling the clients needs. A photographer would have to transfer the rights to all the applied knowledge and techniques used for a client, thus preventing the photographer from using those creations for future jobs. The client now owns all the creative material created from the work done by the photographer. So, lets say I create a specific photo editing technique that I wish to use again, say an Adobe script or I write a program that does something specific for that project but may be usable in other ways or for other projects. I can no longer use that without the permission of the original client because my intellectual property rights no longer exist.
Another aspect of this; for example, would be a wedding photographer who archives their wedding photos from all their clients. Some day down the road a family member may approach the photographer to get replacement copies or additional copies of the material, the photographer no longer has the rights to that material and can’t legally sell it. The photographer no longer has the incentive nor right to save those images for future use. That future use must be provided by the original client as they are now the owner of the material. So Bill and Mary, my wedding client, have to be the source for all future requests, and what is the likelihood that a typical wedding client is going to maintain a viable archive of their wedding or event? The photographer no longer has a reason to maintain the archive because they can’t derive income from it down the road. It no longer belongs to them. Bill and Mary get divorced, but Mary’s aunt can’t get photos of her now dead husband from the wedding because Bill and Mary got divorced and have no clue as to what happened to the original wedding photos.
Everybody loses.
The new California law takes the right to negotiate a contract for ownership of the intellectual property away from the photographer/videographer and automatically grants the client ownership of the intellectual material. This law could also have a serious impact on the music and other aspects of the publishing industry. I’ll need to read up more on this.
The California law, if not challenged, will do serious and permanent harm to independent professional photographers and videographers by taking the fruits of their work from them and giving them away without an agreement to do so.

I’m not certain of the origins of this new law, but California has a large freelance film, photographic and  journalistic industry and stripping creative content providers of the ownership of their creative property amounts to theft of services by the state, for the purpose of what? I’m not sure what the purpose is other than to damage an already fragile economic environment for many of us.

What this means to me is that I won’t work for anyone in California.