ARTIST RIGHTS

A Primer On Knowing Your Rights As An Animation Industry Worker

As stories of toxic and abusive work environments frequently make the rounds in the
animation industry, it’s more important than ever for animation workers to know
their rights as employees in the workplace.

The U.S. Congress and the many state legislatures have all passed several laws
touching on the relationship between an employer and an employee. While the
following doesn’t try to be a comprehensive study of what an employee’s rights
might be, it hopefully gives a general overview of what American federal law
recognizes as an employee’s rights while working in the U.S.

Employee or Independent Contractor?

The first thing to know is that because most of these laws protect only employees,
you need to determine if you are classified by your employer as an employee or as
an independent contractor. If you are an independent contractor, then only the
contract you negotiated with the studio protects you. Federal and state employment
law generally does not cover independent contractors.

Importantly, just because a studio may classify an artist as an independent

contractor, that does not automatically settle the issue. Whatever the employer
might say, in court, it is ultimately up to a judge or jury to decide.

Depending on what law is at issue, judges use a couple of different methods to

determine whether a worker is actually an employee. Both methods examine how much
control the employer has over the worker, such as deciding what equipment to use
and how the worker is paid (independent contractors typically get a flat fee, for
example). One test also tries to take a more holistic look at the worker-employer
relationship by examining how permanent the relationship is between the worker and
the employer, and how much the worker invested in facilities and equipment. If the
worker did not need to invest in equipment, it is more likely the worker is an
employee rather than an independent contractor. After all, an independent
contractor is independent, and has greater need of his or her own equipment.

Remember, too, that what a federal judge might rule under federal law might differ
from what a state judge might rule under a state employment law. In May 2018, the
California state Supreme Court adopted a new test to determine whether an
“independent contractor” is actually an employee. That test looks at how free the
worker is from the control of the employer while working, whether the worker and
the employer both do the same kind of work, and whether the worker is independently
established and doing the same kind work for others. Although it’s too soon to be
sure what effect this new test will have, early reactions predict significant
consequences for the so-called gig economy, where independent contractors do part-
time or short-term jobs for companies but have not been classified as employees.
Artists, familiar with the way the animation and vfx industry hires and fires based
on immediate production needs, might be affected as well.

Although only the employee is protected by federal employment law, all is not lost
for the independent contractor. For example, the employee does not generally keep
the copyright to work created for an employer – whereas the independent contractor
typically does (unless, of course, the contract between them provides otherwise).

Unions
Unions developed in large part in reaction to the Industrial Revolution, as society
transformed from an agricultural foundation to an industrial one. Industry of
course resisted unions, and in certain cases, striking workers were even prosecuted
as criminals conspiring to raises wages.
In 1935, Congress passed the National Labor Relations Act, also known as the Wagner
Act, firmly establishing protections for the right to collective bargaining –
meaning, labor unions can negotiate with a company’s management on behalf of its
members for better wages and working conditions.

The law also created the National Labor Relations Board, which enforces the law,
and prohibits employers from interfering with unions, from retaliating against
employees who join unions, and from refusing to negotiate with a legally-
constituted union authorized by its members to negotiate with the employer.

By the mid-20th century, one-third of the American workforce were members of a

union. Today, however, only one-tenth of the workforce are union members, and only
a small percentage of the animation industry is unionized. None of the visual
effects or gaming industries are unionized.

Nonetheless, efforts are underway in both North America and Great Britain to change
this dearth of union representation. In the U.S., IATSE, one of the major unions in
the entertainment industry, representing editors, designers, and makeup artists,
among others, has posted online arguments for unionization in the visual effects
industry and promises “to assist working people in the visual effects industry [to]
speak together to make their working lives better.” Such union communications
suggest there are workers within visual effects studios attempting to organize
their shop as a union. Because of the sensitivity of the issue, however, employee
organizers often seek to maintain anonymity.

In the U.K., too, ongoing unionization efforts led by visual effects artists at
VFXForum.org argue the benefits of the BECTU media and entertainment union, which
already represents over 40,000 workers in the British broadcasting, film, theater,
and television industries. Notably, the effects artists point to the benefits of
American animation artists represented by IATSE’s Animation Guild as inducement for
union representation for British visual effects artists.

Meanwhile, in Vancouver, Canada, a band of animation artists have formed the Art
Babbitt Appreciation Society to make the case for unions and prevent situations
similar to what happened to workers on the animated feature Sausage Party.

These workers recognize that they cannot depend solely on the government to protect
their rights and believe that together they are stronger than they are
individually. Employers, naturally, argue that the increased costs in meeting union
demands imperil employment. But at a time when American unemployment is at historic
lows, such arguments perhaps hit with less force than before.

Termination and unemployment

Underpinning employer-employee relations is what’s known as the at-will rule:
either the employee or the employer may terminate employment at any time and for
any reason, unless they have agreed otherwise, so long as doing so doesn’t break
any other law (such as discrimination laws).

So what laws might an employer break? While states have their own laws, the U.S.
Congress has also passed significant laws governing employer and employee
relations.

The Civil Rights Act of 1964 prohibits discrimination and retaliation based on
race, color, religion, sex, and national origin – but applies only to employers of
15 or more people. Termination, then, by such an employer and for reasons based on
such discrimination is against the law.

The Age Discrimination Act of 1967 added age to the list of protected categories,
and the 1990 Americans with Disabilities Act did likewise for those qualified
persons with mental and physical disabilities.

Along with prohibitions against certain kinds of discrimination, employers may not
terminate an employee “in violation of public policy.” These prohibitions are
typically state laws, rather than federal, and generally protect employees in four
situations: (1) refusing to commit an illegal act; (2) exercising a statutory right
(such as claiming worker’s compensation); (3) completing a public obligation such
as jury duty; and (4) blowing the whistle on employer wrongdoing.

If you are terminated, and you don’t have any of the above claims against your
employer, then you likely will want to apply for unemployment insurance benefits.

The Social Security Act of 1935, in addition to creating Social Security,

established unemployment insurance. The law imposes a tax on employers, taking a
percentage of each covered employee’s wages, and the federal government then sends
that money back to state-run unemployment insurance programs. This allows the
federal government to require states to meet certain standards to receive the funds
– standards such as a prohibition from denying benefits because of a pregnancy, and
from paying benefits to undocumented, unauthorized workers.

Not all unemployed workers are eligible for unemployment insurance benefits.
Different states may have different requirements. Generally, recently-unemployed
workers are ineligible for benefits if, among other things, they leave their
employment by choice, if they were terminated due to their own willful misconduct,
if they are only part-time workers, or if they no longer are searching for new
work.

The reasoning behind providing unemployment benefits was to help workers search for
new employment that utilized their skills and experience, rather than forcing a
laid-off worker to take the first available job for financial reasons.

In 1988, recognizing the advance of technological changes in industry, Congress

passed the Worker Adjustment and Retraining Notification Act, or WARN, which
requires employers of 100 or more full-time employees to provide prior notice of
mass layoffs of at least 60 days. This gives the employees a chance to prepare and
to perhaps retrain for a new position.

For the recently unemployed, in addition to government assistance, the contract

between the employer and the employee may also address termination and unemployment
rights. Jason MacLeod, business representative at the Animation Guild, told Cartoon
Brew that all the contracts their union negotiates provide for some form of
severance or dismissal pay. Guild members also maintain a Training Fund to help
defray costs for skills training, and the Guild offers its members further
assistance in skills training by connecting members to state funding and partnering
with educational organizations.

Minimum wage and overtime

In 1938, Congress passed the Fair Labor Standards Act (FSLA), which prohibited
child labor, established a minimum wage, and requires that employers pay overtime
after 40 hours a week. The minimum wage has been amended many times over the years,
too, and the real devil is in the details – namely, the exceptions to the rules:
child labor is allowed for actors, for example, and employers do not have to pay
overtime to administrative, executive, or professional employees, nor to employees
who load or pack seafood, among other examples.

The current federal minimum wage is $7.25 per hour – but many states and counties
have their own standards. California’s minimum age, for example, is $12 per hour
for 2019, and will increase by $1 per hour each year until it reaches $15 per hour
in 2022. New York’s minimum wage is currently $11.40 per hour, increasing by 70
cents per year until 2021, and then by the rate of inflation until it reaches $15
per hour.

Not all employees are covered by overtime rules. In fact, the FSLA effectively
exempts animators and other creative artists by excluding professionals whose work
“require[es] invention, imagination, originality or talent in a recognized field of
artistic or creative endeavor.” Likewise, California exempts professional motion
picture employees from overtime and minimum wage requirements.

Family and medical leave

The Family and Medical Leave Act of 1993 protects certain employees who must leave
work for an extended period due to childbirth, adoption or foster care, or to care
for themselves or a spouse, child or parent with a “serious health condition.”
Where the leave is taken to care for a new child, the leave must be completed
within twelve months of the child’s birth, or of the child’s adoption or placement
for foster care. The employee cannot lose any accrued benefits, such as health
insurance, life insurance, sick leave, or pensions due to taking the leave (and
health insurance must be maintained during the leave, though, if the employee fails
to return to work after the end of the leave, the employee may be required to
reimburse the employer for premiums paid during the entire leave). Upon returning
to work, the employee is entitled to the same or similar position with the employer
as was held prior to the leave.

However, this law only covers employers of 50 or more employees (based on 20 or

more workweeks of the current or preceding calendar year). And only employees who
have worked for the employer for at least 12 months, and for at least 1,250 hours
during the previous 12-month period are eligible.

Harassment and discrimination

Despite what the behavior of certain Hollywood powers-that-be might suggest,
employees have the right to be free from sexual harassment. The 1964 Civil Rights
Act prohibits discrimination on the basis of sex (among other categories), and in
1976, the federal district court for the District of Columbia held, in Williams v.
Saxbe, that sex harassment qualified as sex discrimination. The U.S. Equal
Employment Opportunity Commission is charged with enforcing the law in this area,
and that agency states sex harassment includes “unwelcome sexual advances, requests
for sexual favors, and other verbal or physical harassment of a sexual nature.” The
agency points out, however, that harassment “can include offensive remarks about a
person’s sex,” but “simple teasing, offhand comments, or isolated incidents that
are not very serious” are not prohibited. Nonetheless, if the harassment is so
frequent or severe so as to create a hostile workplace environment, or if the
employee’s position at the company is affected in some way, such as a demotion or
even a firing, then the employee may have a claim.

Importantly, both the harasser and the employee can be either male or female, and
the harasser can be a supervisor, a co-worker, or even a client or customer.

The 1964 Civil Rights Act additionally prohibited discrimination on the basis of
race, color, religion or national origin. In 1967, Congress passed the Age
Discrimination in Employment Act, prohibiting discrimination in hiring, promotion,
wages and termination against those 40 years old or older, and in 1990, Congress
passed the Americans with Disabilities Act, prohibiting employers with 15 or more
employees from similar discrimination against those with disabilities, which the
law defines as those with physical or mental impairments that “substantially
[limit] one or more major life activities.”

Intellectual property
Intellectual property rights to employee creations and inventions, including
copyrights and patents, are generally considered the property of the employer
rather than the employee.

Where the work includes artistic and literary creations, the “work made for hire”
copyright doctrine says that where an employer hires an employee to create a
certain work, the copyright belongs to the employer. So character designer Bob
Givens, despite designing Bugs Bunny, had no copyright to his creation – Warner
Bros., his employer, does.

Similarly, for more scientific inventions, such as, for example, a multiplane
camera or a realistic surface simulation in computer animation, the patent belongs
to the employer – so, for these examples, Disney or Pixar rather than Bill Garity,
or Anthony David DeRose and Michael Kass.

Employees hired to invent a specific invention or solve a specific problem have

what is known as a duty to assign the patent to their inventions to their employer.
A patent is similar to a copyright, in that it confers exclusive rights to the
party holding it, but applies to inventions, rather than artistic or literary
works, and lasts only twenty years (copyright currently lasts for the lifetime of
the creator, plus another seventy years).

Despite these doctrines conferring rights to an employer, in law, there is always

an argument to be made, and so courts will look at whether an inventor is actually
an employee of the company, and whether the invention was created within the scope
of employment – that is, was the employee hired to invent this specific item? Also,
was it invented on the inventor’s own time? Did the inventor use the employer’s
equipment or materials? These factors will help determine what rights an inventor
has to his or her invention.

For these reasons, and to avoid confusion and conflict, employers frequently
include an assignment provision or a release in their contracts with certain
employees, whereby all rights to their inventions and creations are assigned or
released to the company. As Phil Tippett told Cartoon Brew regarding the
development of the famous go-motion technique used in The Empire Strikes Back, “We
all signed releases for whatever we invented…and George [Lucas} footed the bill.”

Even if the employee manages to retain the patent, companies will often have what
is known as a “shop right” – the right to use the invention despite the employee
owning the patent.

Because the “work made for hire” and “duty to assign” doctrines apply to employees,
however, independent contractors retain their rights to their work (except where
their contract with the company says otherwise). Companies will often include an
assignment provision in their contracts whereby all rights to their inventions and
creations are assigned to the company.

Privacy and GINA

First, it should be stated that for employees and independent contractors bother,
best practices is to avoid using employer-owned or employer-provided equipment,
such as computers, for personal communication, or browsing social media, or other
activities not related to work. If nothing else, you will someday likely leave your
position at the company, but the company will retain your computer. What you did on
that computer will then be in the hands of your boss, for as has been proven again
and again, the internet is forever, and nothing electronic ever seems to be truly
deleted.

With that said, even conscientious employees must rely on what is known as tort law
to protect their privacy rights when working for a private employer. (Public
employees fall under different protections).
Four different invasion of privacy torts are generally recognized by the courts:
(1) intrusion upon an employee’s seclusion; (2) false light; (3) appropriation of
name or likeness; and (4) giving publicity to private facts.

Intrusion upon seclusion is the primary issue where employee privacy is concerned.
Generally, where an employee has a reasonable expectation of privacy, such as a
locker, phone calls, emails, and computers, then an employer is prohibited from
invading such spaces. However, to protect themselves, employers often issue
employee handbooks that expressly state emails and other electronic communications
are controlled by the employer – thus making an expectation of privacy by the
employee unreasonable. Courts have also found that employees have no reasonable
expectation of privacy when sending emails on company computers.

Additional laws, such as the Wiretap Act, which bans employers from listening to an
employee’s phone calls without at least one of the parties’ consent, and Electronic
Communications and Privacy Act, which bans the interception or disclosure of
electronic communications, provide additional protections. However, certain
exceptions apply, such as allowing for employers to monitor computer use.

Finally, in 2008, President George W. Bush signed the Genetic Information

Nondiscrimination Act, or GINA, which prohibits employers from discriminating based
an employee’s genetic information. It is the twenty-first century after all.

Read More:
Overtime Sexual harassment Union
Brian Gabriel
Brian Gabriel More Articles
Brian Gabriel is a writer covering legal issues for Cartoon Brew.

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