By Hanna Reinke.
COVID-19 has upended seemingly every aspect of life as we previously knew it. With all fifty states issuing independent emergency declarations and the federal government invoking emergency measures of its own, a large portion of life outside of the home was sidelined or significantly altered for months on end. With the added time that many have been spending in their homes, there’s been a noticeable, and unsurprising, uptick in individuals who subscribe to various streaming services (e.g., Netflix, Hulu, YouTube TV). However, in light of the litany of COVID-19 social distancing measures imposed nationwide, content creation in the entertainment industry has taken a hit. As movies and regular television show releases became more sparse, consumers were left wondering what was truly happening to their beloved entertainment industry, and whether things would return to normal any time soon. While the pandemic has drudged on, directors, actors, producers, and many others have slowly returned to their roles in the film and television-making process. But COVID-19 has presented new legal issues that may have lasting effects on what those roles might look like moving forward.
Scene One: Pre-Production Considerations
Attorneys who have consulted creatives throughout the production process for years now face new problems when advising such individuals about whether to move forward with a project during COVID-19. For example, now more than ever, attorneys must think several steps ahead, making producers aware of the countless scenarios that might occur if any one person in the production gets infected. As a result, a major question that attorneys must ask is whether someone is willing and able to fund a plan B in the likely event that something goes awry.
This question is further complicated by the fact that “there still isn’t any insurance to cover COVID claims.” There are rumors that legislation is currently pending to solve this ambiguity, but for the time being, liability must be assessed on a production-by-production basis. Additionally, “production insurance and event cancellation policies are often triggered by orders from civil authorities,” and there are caps on how much money can be doled out. With the rapid onset of COVID-19, and the massive losses by the entertainment industry that inevitably followed, insurance companies have been overrun by what could be $1 billion in claims. Unfortunately, this has left many claims unanswered. While large production companies may not find these hurdles overly burdensome, independent filmmakers lack such luxury and have repeatedly been forced to shut down projects slated for 2020.
Scene Two: Crafting a COVID-Compliant Contract
In light of these emerging insurance concerns, creatives are paying much more attention to the portions of their contracts that will protect them if an unexpected situation does arise. Such language, often referred to as force majeure clauses, have not always been so important for the entertainment industry. However, what was a boilerplate inclusion only a year ago is now the crux upon which an actor may or may not be paid if he or she becomes infected, or if production is suddenly suspended due to state lockdowns.
Generally, force majeure clauses allow “a party to suspend and also terminate a contract without liability if an unforeseen event beyond the party’s control makes performance of the party’s obligations impossible or impractical.” Given that these clauses are predicated on impossibility, including them in entertainment industry contracts may only provide relief if COVID-19’s effects are determined to rise to such a standard as to make production practically impossible. Additionally, because force majeure language can often be quite broad, it will be important for contract drafters to be both explicit and precise when describing how COVID-19 may affect a creative’s ability to work. Without such specificity, courts may not be willing to provide the desired recourse. Moreover, beyond the pandemic, attorneys will need to pay keen attention to how they utilize force majeure clauses in order to ensure the best protection for their clients.
Scene Three: Shooting the Production
When creatives do take the plunge and move forward with production during the pandemic, there are extensive guidelines in place to make sure that various social distancing measures are adhered to. The Screen Actors Guild and the American Federation of Television and Radio Artists (SAG-AFTRA), an organization which represents “160,000 performers and media professionals across 25 locals in the United States,” has released its own document which extensively outlines the necessary procedures to follow when carrying out any sort of production. The provisions range from routine COVID-19 testing, to the creation of work groups to minimize contact, to mandatory training.
Many working in the entertainment industry have also been required to hire a COVID-19 compliance supervisor, a position that has become increasingly important amid the pandemic in order to ensure adherence to rapidly-evolving COVID-19 measures. One of the conditions of the “return to Hollywood” was that each production would have a compliance supervisor whose primary responsibilities include “sanitization, testing, safety equipment and distancing.” This person has more authority than one might initially think, as they are even able to “stop a production if there are concerns about safety” and “discipline — or even fire — safety protocol violators.” Therefore, these officers operate in a crucial space that allows creatives to move forward with projects while adhering to often nebulous COVID-19 regulations.
Hollywood has been an enigma for many years, and it is often regarded as a clandestine circle of minds that can only be understood from the inside. Even so, it has not been immune to the COVID-19 pandemic, and production processes may look very different once the dust settles and things return to some degree of normalcy. The days of packed movie sets teeming with actors, producers, and crew members could be behind us as creatives opt for more intimate and segmented production schedules. What that will look like exactly is yet to be seen, but it is certain that collaboration between creative and legal minds will be necessary in order to rebuild the entertainment industry to its pre-COVID glory.