“Fine Artists” and Other Clarified and Expanded Professional Services Exemptions

Out of Sacramento’s political process has come passage of AB 2257 and new Labor Code 2778, effective September 4, 2020, providing a broader list of professional services exemptions from the rigid “ABC” test for independent contractor classification. See, Bullet Dodging Part 2 – California’s “Professional Services” Exemption To Strict Independent Contractor Definition; Licensed Beauticians Among the Eligible (October 2019).

The earlier AB 5 version did not clearly define who qualified as a “fine artist” under this exemption. The revised law now defines the term as “an individual who creates works of art to be appreciated primarily or solely for their imaginative, aesthetic, or intellectual content, including drawings, paintings, sculptures, mosaics, works of calligraphy, works of graphic art, crafts, or mixed media.”

Under Labor Code 2778’s broader exclusions from the strict ABC criteria, still photographers, photojournalists, videographers, and photo editors who do not work on motion pictures (e.g., “theatrical or commercial productions, broadcast news, television, and music videos”), and digital content aggregators who assist them, are no longer limited to 35 submissions per year to a single business as in the AB 5 version, but:

• must have a “written contract that specifies the rate of pay and obligation to pay by a defined time”;
• may not be “directly replacing an employee who performed the same work at the same volume for the hiring entity”;
• may not be performing the work principally “at the hiring entity’s business location”; and
• may not be “restricted from working for more than one hiring entity.”

Labor Code 2778 also exempts freelance writers, editors, and newspaper cartoonists from the 35 maximum submissions per client requirement of AB 5, and adds to their ranks translators, copy editors, and illustrators. Their contracts are also subject to the bullet points above and must address the intellectual property rights.

The new law also adds several professions performed by an individual: “content contributor, advisor, producer, narrator, or cartographer for a journal, book, periodical, evaluation, other publication or educational, academic, or instructional work in any format or media,” subject to the same requirements as the writing professions in the preceding paragraph.

Also exempt are:

• “A specialized performer hired by a performing arts company or organization to teach a master class for no more than one week”;
• Appraisers;
• Licensed and registered professional foresters;
• Real estate licensees (with special provisions as to workers compensation and unemployment insurance requirements);
• Home inspectors; and
• Licensed repossession agencies “free from the control and direction of the hiring person or entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.”

Under the new law, while they are still required to have a business licenses if required in the jurisdiction, all professionals have a breathing period of six months from September 4, 2020 – the effective date of AB 2257 – to obtain those licenses.

See also:

• California’s Newest Independent Contractor Law Part 2 – Revised Referral Agency Exception (September 24, 2020)

• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17, 2020)
• Gagging the Gigs, Plan B – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

October 10, 2020