What is the definition of the word “artist?”
Should it be defined by artists themselves, or by politicians? What happens when theater companies are told their actors, designers and directors are “workers” and must be treated as such?
We’re about to find out.
A new state law that most Californians believed was designed to protect Uber and Lyft drivers from exploitation went into effect on New Year’s Day, bringing unexpected consequences and spreading confusion and fear across an array of industries. These “industries” include arts nonprofits and theater companies, along with the actors, musicians and designers who collaborate with them. As not-for-profit organizations struggle to comply with the law, many say the law’s strict requirements could mean the end of community theater as we know it.
In the North Bay, the law—Assembly Bill 5 (AB-5)—which has been in effect just over a month, is already changing the way theaters have operated for more than a century. With little warning, theaters are struggling to turn short-term, temporary artists into employees. Though some Marin County and Sonoma County theater artists say it’s about time that experienced actors were paid what they are worth, others point out that most small theater companies simply can’t survive the economic burden the law requires of them, insisting it will end up hurting the very people it was designed to help.
“The law was advertised as being directed at a certain industry when it was passed,” says Julie Baker of Californians for the Arts. “The scope was not something that people in the arts anticipated.”
A California-based advocacy and education organization formed to build public awareness around the value and impact of the arts and the creative sector, Californians For the Arts has been working with legislators to bring some clarity to the law, which has left many artists and nonprofits thoroughly confused—and in a very tight spot.
“The legislation was signed in 2019, and till then, nobody was sure what was going to be in it, and then suddenly, it’s going to be law on January 1,” Baker said. The timing was especially bad, she said, as the majority of the state’s theater companies had already set their seasons and fiscal year budgets by then.
Authored by San Diego Assemblywoman Lorena Gonzalez and signed into law last September by Gavin Newsom, AB-5—commonly called “The Gig-Worker Bill” as it worked its way through the legislature—establishes narrow new restrictions on how independent contractors can be defined.
At a town-hall meeting held on Thursday, Feb. 6 at Santa Rosa’s Luther Burbank Center for the Arts, artists and representatives from dozens of North Bay theater companies gathered to ask questions, express their concerns and openly call for more clarification as to what, exactly, the new law demands. Present were representatives of Marin County’s Novato Theater Company, Ross Valley Players and the Mountain Play, plus Sonoma County’s Main Stage West, 6th Street Playhouse, Spreckels Performing Arts Center, the Imaginists and Cinnabar Theater. Emotions in the room ran high for the duration of the meeting’s 90-minute runtime.
“Has the state even looked at the financial impact of the probable dissolution of all these small arts organizations?” asked Executive Director Diane Dragone, of Cinnabar Theater, during a session with nonprofit lawyers. “As written, we all know this law is never going to allow us to sustain our operations; not for a lot of us. What kind of impact will that have on the state, to lose so many artists and arts organizations? Who’s going to be left?”
The panel of experts, which included lawyers and professional arts advocates (including Baker), had little comfort to give, beyond a general admonition to follow the law and wait for the courts to work out the details.
Samantha Kimpel, creative coordinator for Creative Sonoma—a division of the Sonoma County Economic Development Board—set the tone early on.
“It is a challenging time,” Kimpel said. “We are here tonight because we’re all committed to working in the arts. We want to come together and try to get through this.”
The present crisis can be traced back to April 30, 2018, when the California Supreme Court issued the Dynamix Decision, which changed existing laws on how independent contractors are classified.
“Basically, it made it much more difficult to classify someone as an independent contractor,” Baker said. “To clarify what was intended, the court adopted an ABC test.”
Under the ABC test, a “worker” can be classified as an independent contractor only if the following three factors apply:
“The worker is free from the control and direction of the hiring company in connection with the performance of the work, both under the contract for the performance of the work and in fact.” In other words, the worker does not answer to any authority, or isn’t required to follow an authority’s directions or arrive and depart at any particular time. The “worker” is their own boss.
“The worker performs work that is outside the usual course of the hiring company’s business,” meaning if they are a juggling circus clown doing a show as entertainment during a tech company’s annual picnic, the clown is an independent contractor, not a temporary employee, since putting on juggling shows is not what that company does on a day-to-day basis.
The worker is “customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” In other words, if you are a juggling circus clown hired by a circus to entertain audiences who have come to see a circus, even for a day or a week, then you are not an independent contractor.
As written in the law, a hiring entity’s failure to prove any one of these prerequisites will be enough to establish that the worker is an included employee, not an excluded independent contractor.
“We’ve been speaking to legislators about how the arts work,” Baker said. “We’ve tried to explain that the arts don’t fit into that one-size-fits-all mold. AB-5 is intended to provide protections for people against exploitation. That’s not a bad thing. But for those in the arts who want to remain independent, it’s a painful thing, because it affects their own flexibility, it affects how they do their taxes and their expense deductions, it affects their intellectual property rights—because once you do something as an employee, the company owns whatever that piece of work is.”
According to Baker, all those hours spent with legislators did result in one change to the law: the inclusion of “fine arts” as an exemption alongside grant writers, marketing professionals, travel agents and others.
“‘Fine arts,’ that’s what we got,” Baker said, shrugging. “But what does that mean? There is no definition of ‘fine artist’ anywhere in the legislation. I used to own an art gallery; I think I know what a fine artist is. The definition is intentionally broad, Gonzalez has admitted. The author herself, if you follow her on Twitter, has said that ‘fine arts’ was intended to be that broad, but that in her mind it includes people like musicians.”
According to Baker, Assemblywoman Gonzalez had, just that day, tweeted an announcement that more clarity about what constitutes a “fine artist” would be coming in the future.
“So now we wait and see,” she said.
“Personally,” remarked Elly Lichenstein, Cinnabar’s artistic director, “I’m a bit livid that after spending my life as an artist, I’m now being told that I don’t know what an artist is, that I have to wait for a group of politicians to decide whether I’m an artist or not.”
“I’m just hoping that ‘fine artists’ includes lighting designers and sound designers for theaters,” said Santa Rosa sound technician Dough Faxon. “That’s an art, too. I work in community theater, for little 72-seat theaters. There are a lot of people who make a stage show happen, and there’s art all through it.”
Meanwhile, Baker pointed out that another bill, AB-1850, has been introduced by Gonzalez, while eight other pieces of legislation, most of those others designed to either repeal AB-5 or alter it, have also been introduced. Gonzalez’s new bill would reportedly “clarify” the AB-5 distinctions. Additionally, Gonzalez has announced that $20 million dollars of emergency funds will be made available to certain qualified organizations and individuals, to—in Baker’s words—”manage the transition to AB-5.”
She advised those in attendance not to become too hopeful the law will be repealed, or to hold their breaths waiting for actors and sound designers to be reclassified among the exempted “fine artists.” Several unions operating in the state, including Actors Equity—which is staunchly in favor of AB-5—have publicly stated they will mobilize against any effort to have actors and other theater artists added to the list of exempted parties.
“AB-5 is not getting repealed any time soon,” Baker said. “What we’re suggesting to you, in terms of our advocacy, is that if AB-5 is causing you to reduce programs, close programs and even potentially close your organization—and we are hearing these stories all around the state—then you need to tell your elected official. Send them a letter, there’s a template on our website. It matters. The more they hear from real people telling real stories, the harder it will be for them to pretend this is not having a major impact on the people who elect them.”