The state of California is abuzz this week as California Assembly Bill 5 is set to be voted on by the legislature. The bill seeks to codify a California Supreme Court ruling which changes the way employers can define workers as either independent contractors or employees. The bill is receiving a lot of attention for the effect it could have on ridesharing companies like Uber and Lyft, and stems from a Supreme Court case involving a same-day courier company called Dynamex. However, some might argue that the rules laid out in the bill could affect comic book creators, many of whom currently work as independent contractors for publishers.
From an article in the International Business Times, here's how the law will change the definition of independent contractors:
That test was first written in a 2018 Supreme Court decision in the case involving Dynamex. The court said a worker is an employee unless the employer proves that:
(A): The worker is "free from the control and direction" of the company that hired them while they perform their work.
(B): The worker is performing work that falls "outside the hiring entity's usual course or type of business."
(C): The worker has their own independent business or trade beyond the job for which they were hired.
There's no guarantee that these rules will necessarily affect comic book creators. While those creators are subject to direction from editors when working on licensed or work-for-hire properties, creator-owned comics operate differently. Additionally, comic book creators can and do make comics without publishers, and it could be argued that they do have their own independent business. Most importantly, a change in the employment status of comic book creators would need to be driven by demand from those creators, and fear of losing opportunities for causing trouble could prevent such a movement from gaining much traction.
Even still, the bill, which is backed by California Governor Gavin Newsom, who says he'll sign it if the legislature passes it, clearly has some in the entertainment industry shook, with Record Industry Association of America CEO Mitch Glazier and several other music industry bigwigs including A2IM's James Burgess and Azoff Company Co-President Susan Genco, penning an op/ed in Variety Wednesday warning of the bill's dangers. Glazier's editorial claims that the bill will unfairly affect independent musicians, such as "the rapper who hires a mixer to punch up the levels on the production" or "the young girl in her basement recording on Garageband who invites a friend over to play bass," forcing them to become liable as "employers." It purports:
Think of a 14-year-old kid in her bedroom making music with friends: Is she capable of becoming an employer and providing punch cards, time sheets, guaranteed meal breaks, health care, retirement benefits, minimum wage, overtime pay calculation, mandatory tax withholdings? Imagine N.W.A, when they were making independent records in Compton, faced with the expense and administrative tasks of becoming employers.
Of course, Glazier and company do not directly represent independent musicians. The members of the RIAA and A2IM are record labels and distributors, not musicians, and the Azoff Company is a talent management firm. One could argue it's their interests the op/ed is really meant to defend. And if the music industry is concerned about how the bill could affect its ability to exploit creative workers for profit, should comics industry capitalists fear the same thing? We'll just have to wait and see how things play out.
Bleeding Cool reached out to several prominent California-based comic book publishers but we have not received a comment as of press time.