7th Edition: Trends in Marketing Communications Law
The dominant storyline for Hollywood in 2020 has been how to respond to the COVID-19 pandemic. Travel restrictions and bans on non-essential work paused nearly all film and television production for several months throughout the spring and summer. The industry is pursuing a wide range of strategies in an attempt to return to work safely, but the failure to control COVID-19 in the United States continues to hamper many efforts.
Safety Guidelines: In June, a coalition of major studios, streaming services and unions including Screen Actors Guild — American Federation of Television and Radio Artists (SAG-AFTRA), Directors Guild of America (DGA) and International Alliance of Theatrical Stage Employees (IATSE) released COVID-19 workplace health and safety guidelines designed to slow the spread of COVID-19, including specific requirements unique to the entertainment industry. The guidelines include employing a “COVID-19 compliance officer” for each production, constant hand hygiene, personal protective equipment use and limiting the number of people on set to the greatest extent possible.
Shortly thereafter, the major industry unions published their own set of guidelines titled, “The Safe Way Forward,” containing even more specific recommendations for working on set safely. These guidelines described, a “zone” system which would physically separate workers on set depending on their role, and the various safety measures and testing cadence applicable to each zone.
It is still unresolved as to which party is responsible for the costs of complying with the guidelines and whether studios can require workers to sign liability waivers or acknowledgments of risk before arriving on set. In particular, liability waivers continue to be roundly rejected by the unions.
Costs of Testing: A major cornerstone of each back-to-work plan is rapid and repeated testing of workers, especially actors that cannot wear masks on camera and workers in direct contact with the actors, such as make-up artists. However, in mid-July California announced priority tiered testing in an effort to ensure that limited tests are deployed where most needed — and the entertainment industry received lowest priority. Further, the cost of repeated testing (the guidelines call for testing as often as once per week during filming) creates a burden on independent and smaller productions without the deep pockets of a blockbuster studio production. Testing availability and cost is, and likely will continue to be, a major sticking point in resuming production in a number of cases.
International Production: Many overseas productions have looked to restart in jurisdictions that have responded more successfully to COVID-19. For instance, Jurassic World: Dominion was one of the first productions to resume operations outside of London and the success of New Zealand in combatting the virus has allowed production to resume on the Avatar sequels and Amazon’s Lord of the Rings series.
Shows and films looking to restart production have been coordinating with locations and facilities in Hungary, the Czech Republic and other European countries in an effort to find safer working environments. However, this approach has required production companies to address several international labor and employment law issues (including varying local requirements for COVID-19 safety) that were not anticipated when the production was authorized to take place in the U.S. Moreover, continued restrictions on international travel may limit the ability of U.S.-based crews to travel to these locations to resume production.
- Networks and studios are trying to balance worker health and safety while simultaneously restarting production and continuing business. As the situation rapidly evolves, production companies must be flexible and creative in their approach.
- Guidelines disseminated by both the studios and unions focus on widespread testing and social distancing on set to mitigate risk, but the big question of how to pay for increased costs has not been fully answered.
- Productions will need to coordinate closely with insurers to understand which costs are insurable and which are not in the event productions are disrupted once again by a resurgence of cases.