Being caught in the crosshairs of AB5 means that freelance photographers would be classified as employees, even if they do not want to be. We are concerned that this reclassification means photographers will also lose their copyright.
With as much effort as we put into advocating for and defending the First Amendment rights of our members, we know this is true: If you can’t make a decent living as a visual journalist, it’s all for naught. That’s why we put so much energy into protecting and improving copyright law. It’s also why, in 2019, a California bill related to independent contractors caught our attention. The bill, called AB5 (Assembly Bill 5), was intended to fix the problem of employees being “misclassified” as independent contractors. It was generally aimed at “gig” — a labor market characterized by the prevalence of short-term contracts or freelance work as opposed to permanent jobs — workers such as Uber and Lyft drivers. AB5 changes the employment status of contractors to employees in many situations, including freelance photojournalists. The resulting law has an exemption for “still photographers and photojournalists” who make fewer than 35 “submissions” per client, per year. It has no exemptions for videographers, which means that freelancers shooting video must become employees of that client upon submitting a video, even if it is for just a single assignment.
Being caught in the crosshairs of the bill means that freelance photographers would be classified as employees, even if they do not want to be. We are concerned that this reclassification means photographers will also lose their copyright. The default in copyright law is that an employer owns the copyright to the images made by its employees (such as staff newspaper photographers). On the other hand, independent contractors usually retain their copyright by law, unless they relinquish or transfer it by written agreement. It is common for our members to insist that they retain the copyright to their work. An automatic conversion to employee status would jeopardize that copyright ownership.
Another concern is that visual journalists in California will lose valuable business exemptions on their taxes. The expenses a photographer can deduct as an employee are far more limited than the expenses that a photographer can deduct as an independent contractor.
Additionally, we are concerned that publications will simply stop using California photographers and videographers, either entirely or after 35 assignments. We have heard from members whose clients are doing exactly that. One NPPA member told us that he is going to lose two-thirds of his revenue from one client. Another will face more than $10,000 in lost assignment work. NPPA members impacted by the law range from retirees who will be losing extra income to midcareer professionals whose journalism clients are part of their overall business model. One told us that the flexibility of freelancing allowed him to stay at home with his young children instead of putting them in daycare. All the impacted members we spoke with are experienced journalists, trained in ethics and professional standards, who keep their local community informed on matters of public concern. Their voices will be silenced and the public will have its right to receive information impaired when the impact of AB5 hits their businesses.
While it is unusual for NPPA to address state labor laws, our Executive Committee decided it was extremely important to address our members’ concerns by becoming plaintiffs in a challenge to some of the terms of this onerous law. The complaint, filed in a Los Angeles federal court on Dec. 17, 2019, asserts that the law violates the U.S. Constitution because it penalizes some photographers while allowing other visual artists — including marketing photographers, fine artists and graphic artists — to continue to perform as independent contractors, unencumbered by limits on the number of submissions they make. Additionally, we argue the provision of the law that prevents freelance videography is an impermissible content-based restriction on speech and the press. For still photojournalists, we believe that the 35 “submissions” per year per client limit is another content-based First Amendment violation. Similar limits are imposed on freelance writers, editors and newspaper cartoonists, which is why the American Society for Journalists and Authors (ASJA) is also a plaintiff in the lawsuit.
The good news is that other states are listening. Based on conversations we have had behind the scenes, efforts to pass similar bills in New York and New Jersey will likely not have the arbitrary and chilling limits imposed by AB5.
We know that some photographers become freelancers not by choice, but as a result of downsizing and vanishing news publications. Sadly, in this economic climate, we do not expect these state laws, enacted with good intentions, will result in new staff jobs. We also recognize that many visual journalists choose to be independent contractors because it offers them greater flexibility, better hours than full-time employment and, in many cases, greater financial security. Regardless of the reasons behind it, for those who have built successful small photography businesses, we believe one of NPPA’s roles is to be your voice so that you can continue to provide meaningful storytelling to your community on your own terms. ■
Got a question or topic for a future column? If you are an NPPA member, send your question to us or find us at an NPPA event. Email Mickey Osterreicher at l[email protected] or Alicia Calzada at [email protected]