Daniel v. Wayans (CA2/1 B261814 & B263950 2/9/17) Actor Racial Harassment/First Amendment Creative Process. 

 

Pierre Daniel (Daniel), an African-American actor, worked as an extra in a movie entitled, "A Haunted House 2."  African-American Hollywood mogul Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie. Daniel sued Wayans and others, alleging that he was the victim of racial harassment because during his one day of work on the movie he was compared to a Black cartoon character and called racial slurs throughout the day by Wayans.  In response, Wayans, pursuant to Code of Civil Procedure  section 425.16, moved to strike Daniel's claims against him as a SLAPP suit (i.e., Strategic Lawsuit Against Public Participation), arguing that all of Daniel's claims arose from Wayans' constitutional right of free speech because the core injury-producing conduct arose out of the creation of the movie and all events occurring on the set reflect humorous anecdotes as potential promotion for the film, in addition to creating an improv-like "in character" environment on set which can lead to improvisational changes to scenes during the filming process. 

The trial court agreed with Wayans and also found that Daniel had failed to establish the probability that he would prevail on any of his claims against Wayans.  As a result, the trial court entered judgment in favor of Wayans and awarded him his attorney fees as required under the Anti-SLAPP law.

 

On appeal, Daniel argues that the trial court erred with regard to its determination of the threshold issue in Wayans' anti-SLAPP motion- that is, the conduct at issue was not part of the "'creative process' " inherent in making the movie because it occurred when the cameras were not rolling and, as a result, did not involve the right of free speech or an issue of public interest.  The court of appeals rejected this contention upheld the dismissal of the racial harassment case and required Daniel to pay all of Wayan's legal fees pursuant to the anti-SLAPP rules.

This case, like the 2006,  Friends harassment case ( Lyle v. WB Television Productions, et al) (in which a writer's assistant sued the producers of Friends because of lewd talk in the writers room), demonstrates that harassment laws are applied quite differently in the entertainment industry as compared to other traditional industries, and that the Constitution's 1st amendment protects the creative process to such an extent that it will trump mere statutory employment laws when such laws may infringe upon those creative artistic rights. 

In both cases, the importance of permitting lewd and bawdy humor on the set by the show's creators, is an important and protected part of the creative process particularly in the realm of comedy.   Further, while the decision does not depend on it, the fact that both Plaintiff and Wayans were both African-American is an important fact that was not overlooked. 

Moreover, as expressly stated in the Friends case (despite growing misperceptions in today's society) harassment laws are not civility laws.  The test is not were statements were offensive?  Rather, the test is: Were statements/conduct so offensive that on both an objective and subjective level, it altered the conditions of the workplace and were done with a discriminatory intent. 

Nonetheless, in this age of increasing sensitivities particularly among Millennials, producers are always encouraged to be aware of employment laws and should be sensitive of the concerns of all employees-- in other words just because defenses may exist to permit you to be offensive around or even to specific individuals in pursuit of creativity, doesn't mean you necessarily should do so.  

Pierce Law Group LLP has been a leader in the area of employment law matters affecting the entertainment industry for nearly 20 years.  If you have a question about labor & employment law, contact: Tony Hanna or David Albert Pierce.

 

On May 31th, the Beverly Hills Bar Association Intellectual Property & New Media Section will be presenting at Noon at the BHBA headquarters (9420 Wilshire Blvd. 2nd Floor) an additional copyright panel entitled, "Comprehensive Copyright Infringement Remedies."  Panelists include attorneys Robert F. Helfing and Karen Vogel Weil, as well as Professor Richard Walter, Associate Dean of UCLA School of Theater, Film & Television. The panel will be moderated by Vera Golosker of Pierce Law Group LLP .  For more information click here:  [Comprehensive Copyright Infringement Remedies Seminar]

A Michigan federal judge on April 17th agreed to stay at least a dozen wage-and-hour suits alleging gentleman's club chain Deja Vu Consulting Inc. misclassifies exotic dancers as independent contractors, two days after giving a preliminary okay to a $6.5 million settlement covering between 45,000 and 50,000 dancers at 64 clubs nationwide. 

Regardless of what aspect of the entertainment industry you may be in (or any industry for that matter), the proper classification of workers is essential.  Most employers fail to fully understand the incredibly penalties, back taxes and liability that can result from misclassifying an employee as an independent contractor.  Proper classification is based on legal standards and often confusing legal tests.  It doesn't matter if the workers themselves strongly desires or even demands to be treated as independent contractors-- if the law forbids it, the agreement to treat them as independent contractors will be ignored by courts, the labor board as well as taxing authorities.

Have a question about employees and independent contractors or how to best draft a contract with job duties that promotes bona fide independent contractor status?  Contact the attorneys at Pierce Law Group LLP.