(a) (1) Section 2775 and the holding in Dynamex do not apply to the following occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions, and instead the holding in Borello shall apply to all of the following:
(A) Recording artists, subject to the below.
(B) Songwriters, lyricists, composers, and proofers.
(C) Managers of recording artists.
(D) Record producers and directors.
(E) Musical engineers and mixers engaged in the creation of sound recordings.
(F) Musicians engaged in the creation of sound recordings, subject to the below.
(G) Vocalists, subject to the below.
(H) Photographers working on recording photo shoots, album covers, and other press and publicity purposes.
(I) Independent radio promoters.
(J) Any other individual engaged to render any creative, production, marketing, or independent music publicist services related primarily to the creation, marketing, promotion, or distribution of sound recordings or musical compositions.
(2) This subdivision shall not apply to any of the following:
(A) Film and television unit production crews, as such term is commonly used in the film and television industries, working on live or recorded performances for audiovisual works, including still photographers and cinematographers.
(B) Publicists who are not independent music publicists.
(3) Notwithstanding Section 2775, paragraphs (1) and (2), and the holding in Dynamex, the terms and conditions of any current or future collective bargaining agreements or contractual agreements between the applicable labor unions and respective employers shall govern the determination of employment status in all events.
(4) The following shall apply to recording artists, musicians, and vocalists:
(A) Recording artists, musicians, and vocalists shall not be precluded from organizing under applicable provisions of labor law, or otherwise exercising rights granted to employees under the National Labor Relations Act (29 U.S.C. Sec. 151 et seq.).
(B) (i) Musicians and vocalists who are not royalty-based participants in the work created during any specific engagement shall be treated as employees solely for purposes of receiving minimum and overtime wages for hours worked during the engagement, as well as any damages and penalties due to the failure to receive minimum or overtime wages. Any such wages, damages, and penalties owed under this subparagraph shall be determined according to the applicable provisions of this code, wage orders of the Industrial Welfare Commission, or applicable local laws.
(ii) “Royalty-based participant” means an individual who has either negotiated for the collection or direct administration of royalties derived from the exploitation of a sound recording or musical composition, or is entitled to control, administer or collect royalties related to the exploitation of a sound recording or musical composition as a co-author or joint owner thereof.
(C) In all events, and notwithstanding subparagraph (B), the terms and conditions of any current or future collective bargaining agreements or contractual agreements between the applicable labor unions and respective employers shall govern the determination of employment status.
(b) (1) Section 2775 and the holding in Dynamex do not apply to a musician or musical group for the purpose of a single-engagement live performance event, and instead the determination of employee or independent contractor status shall be governed by Borello, unless one of the following conditions is met:
(A) The musical group is performing as a symphony orchestra, the musical group is performing at a theme park or amusement park, or a musician is performing in a musical theater production.
(B) The musical group is an event headliner for a performance taking place in a venue location with more than 1,500 attendees.
(C) The musical group is performing at a festival that sells more than 18,000 tickets per day.
(2) This subdivision is inclusive of rehearsals related to the single-engagement live performance event.
(3) As used in this subdivision:
(A) “Event headliner” means the musical group that appears most prominently in an event program, advertisement, or on a marquee.
(B) “Festival” means a single day or multiday event in a single venue location that occurs once a year, featuring performances by various musical groups.
(C) “Musical group” means a solo artist, band, or a group of musicians who perform under a distinct name.
(D) “Musical theater production” means a form of theatrical performance that combines songs, spoken dialogue, acting, and dance.
(E) “Musician” means an individual performing instrumental, electronic, or vocal music in a live setting.
(F) “Single-engagement live performance event” means a stand-alone musical performance in a single venue location, or a series of performances in the same venue location no more than once a week. This does not include performances that are part of a tour or series of live performances at various locations.
(G) “Venue location” means an indoor or outdoor location used primarily as a space to hold a concert or musical performance. “Venue location” includes, but is not limited to, a restaurant, bar, or brewery that regularly offers live musical entertainment.
(c) Section 2775 and the holding in Dynamex do not apply to the following, and instead, the determination of employee or independent contractor status shall be governed by Borello:
(1) An individual performance artist performing material that is their original work and creative in character and the result of which depends primarily on the individual’s invention, imagination, or talent, given all of the following conditions are satisfied:
(A) The individual is free from the control and direction of the hiring entity in connection with the performance of the work, both as a matter of contract and in fact. This includes, and is not limited to, the right for the performer to exercise artistic control over all elements of the performance.
(B) The individual retains the rights to their intellectual property that was created in connection with the performance.
(C) Consistent with the nature of the work, the individual sets their terms of work and has the ability to set or negotiate their rates.
(D) The individual is free to accept or reject each individual performance engagement without being penalized in any form by the hiring entity.
(2) “Individual performance artist” shall include, but is not limited to, an individual performing comedy, improvisation, stage magic, illusion, mime, spoken word, storytelling, or puppetry.
(3) This subdivision does not apply to an individual participating in a theatrical production, or a musician or musical group as defined in subdivision (b).
(4) In all events, notwithstanding paragraph (1), the terms and conditions of any current or future collective bargaining agreements or contractual agreements between the applicable labor unions and respective employer shall govern the determination of employment status.
(Added by Stats. 2020, Ch. 38, Sec. 2. (AB 2257) Effective September 4, 2020.)