This Q&A was originally published in the Fall 2020 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
As filmmakers plan to commence production with new COVID-era safety precautions, many wonder if they also should seek contractual protections to limit their legal liability in case of an outbreak on their productions.
Liability waivers are not unusual. Recreational centers such as gyms, pools, amusement parks and ski resorts typically require them, given the heightened risk of physical injury in those activities.
In its simplest form, a liability waiver abandons legal claims against the person responsible for an activity, even if that person is negligent. Before taking part, a participant must sign an agreement in which they assume their own risk and waive any right to bring a claim if injured. Given the highly contagious nature of COVID -19 and the risk of physical injury, can producers update their template production agreements to include liability waivers related to the disease?
The answer is that a producer is unlikely to reap any benefit from including a liability waiver in its production crew deal memos. Although liability waivers generally are enforceable if drafted properly (e.g., with clear, unambiguous language) and there is an opportunity for negotiation, they are rarely enforceable in the employment context. This is because employers and employees generally have unequal bargaining power (i.e., an employee is less likely to negotiate with vigor if their job depends on it). Further, by asking its crew to assume the risk, a producer might alienate the very crew it will be relying on to get the film made. And although waivers can be enforceable against independent contractors, classification of film crew as independent contractors rather than employees is unlikely to pass legal muster under IRS and most state regulations. It is considered an attempt to evade certain taxes and employment laws.
Instead, a producer should ensure that its production crew is covered by worker’s compensation insurance, which pays compensation for an injury in lieu of a claim against the employer. The law as it relates to COVID-19 and worker’s compensation evolves daily and producers should consult with legal, insurance and production payroll advisors to ensure they are in compliance and obtain adequate coverage. As a defense against claims of negligence, a producer might consider other ways of documenting its adherence to standards of care, such as by having the crew sign an acknowledgment of the production’s COVID-related health and safety procedures.
A waiver might make more sense in appearance releases signed by individuals who are not employees and sit for interviews or otherwise appear on camera. To accomplish this, a producer could expand the scope of its form release. An appearance release generally includes a waiver of all legal claims against the producer from production and exploitation of the film, specifically including claims of defamation, invasion of privacy, and infringement. A producer might add to this list a waiver of claims involving “physical injury, personal injury or death,” with express reference to COVID-19.
But although waivers have been held enforceable in some contexts, there is no precedent (as of this writing) to provide any guidance as to whether they would be enforceable with respect to pandemic-related injuries. And needless to say, a waiver is not a replacement for COVID-safety protocols. Failure to maintain them could nullify a release if a court determines a producer was grossly negligent. (Claims for gross negligence cannot be waived.)
Finally, be aware that liability waivers are completely unenforceable in Virginia, Montana and Louisiana. Otherwise, the enforceability of a waiver requires a state-by-state analysis.