Monday, October 31, 2016

You Pay What You Get For. Legal protections for creative professionals, it's a good thing.


I wanted to write about the knee-jerk insanity over Halloween costumes and what seems to be some sort of absolutism by specific groups to try and use law enforcement to take clearly unconstitutional steps in maintaining what seems to be a secific agenda.  One wonders how it may not be long before that threat transitions to anime cosplay events at conventions and other places, (actually remember when I brought up legal threats from other sources regarding Cosplay?  Of course not, it was 9 years ago, and what were you doing 9 years ago? ...It never amounted to anything anyway). 

However, that subject will have to wait.  This entry will have to take a legal “Chun-Chun” and change the whole plot to another something law related.

Such an issue is the recent passing by the New York City Council of legislation specifically protecting freelance artists from wage theft by failure to pay.  It should be apparent by now that small creative businesses have been routinely getting stolen from by large business entities, who sign contracts, accept work, and then simply pay part or even none of the agreed upon price.  It's a major problem.  Even Middle America’s favorite presidential candidate has made that a common business practice.

If you’re a finance major, this actually makes good business sense.  You are a large corporation that retains a permanent legal counsel.  That permanent legal counsel is getting paid the same rate every 30 days no matter what, for their ability to fight off potential litigation.  So why not just count on a statistical analysis of how many small independent artists wouldn’t even have the resources to file the paperwork to even start legal action let alone be able to go through with it.  Then realize that a significant portion of your obligations (aka bills) will never have the resources to be able to collect them should you, as a company, simply choose to say “fuck you” and simply not pay.  You save a shit-ton of money that you keep for yourself and spend on hookers and blow.  What are they gonna do, sue you?  Ha!  Seriously, somewhere at Viacom there's a "Ford Pinto" type memo that actually outlines how this is good business and even has ratios for how much they can stiff different studios for what kind of work.

Hold on... I'm calculating exactly how much we can screw you, so I can add it to the spreadsheet. 
This is gonna get me at least 4 extra drink tickets at the Christmas Party.

So that’s been happening for the better part of two decades now, and like every loophole discovered by large money-grubbing companies run by baby boomer Gordon Gekko types, they’ve abused the shit out of it until it’s become painfully obvious that something needs to be done.  That something is a legislative bill, INT. 1017-C which has passed The New York City Council (unanimously) and awaits the signature of the current Mayor (and major walking disappointment) Bill de Blasio.  He will probably sign it, but let’s not forget that the importance of the matter of time he takes to sign it.  If it happens quickly, then we can assume that the text passed is what will become law.  But in a bit more time, the more of it that passes, it is more likely it is that the following is taking place;

NYC is home to… Viacom, NBC Universal, Marvel, DC Comics, ABC, FOX, Bad Boy Records, PBS, Pacifica Radio, Random House, Reuters, McGraw-Hill, Harper Collins, and a shitload of companies  you’ve never heard of but who all own their own skyscraper in Midtown somewhere.  Not to mention Ad agencies like Saatchi & Saatchi, and Blue Fountain Media.  All of these companies are going to figure out something pretty fast;  A veto is worthless.  If the thing passed unanimously, there’s no way a veto won’t end in an override, those companies can’t get enough City Council Members in their pockets fast enough to prevent that. (Seriously, they have entire floors full of lawyers who argue all day about exactly this kind of thing).  What these companies are going to do is ask for time, time enough for them to go over it so that they can do some housekeeping and then change their boilerplate to something that circumvents this law. And from our ShitStain of a mayor, they'll get it.

Forgetting the obvious fact that even these new penalties are nothing that these massive companies can't just ignore (seriously Viacom farts $1million a day in executive catering… like they’re gonna care about this stuff), it’s important to always keep in mind that this is a New York City law.  Nobody remembers, but I once wrote something regarding how the Tokyo Metropolitan Government has a huge sway on almost every Japanese area of business and politics because in terms of industry and head offices, all the eggs are in one basket over there, and the same is true for the majority of any Japanese market’s regular customers.  So as Tokyo goes, so goes the land of the rising sun.  NYC may be large and we may be so much better than the rest of the hyucklybuck red-state Walmart-shopping ‘Murika out there, but in terms of all the eggs in one basket we in NYC hardly are.  Most times this is a strength, but here is it is a glaring weakness. 

That weakness comes in the form of enforceability and boilerplate.  Everyone who has ever done work on spec knows that in your contract usually somewhere on page 6 there is going to be an article that reads like this:

The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of [pick a state]"

That’s called a Jurisdiction Clause or sometimes a Forum Selection Clause.  After reading this bill, I can’t see an explicit part that addressed this issue.  § 20-931 comes very very close, (read the thing if you want I’m not cutting and pasting that whole thing here), but it really seems to not cover the following situation:  A freelancer living in Queens gets contracted by a large media firm in Manhattan, and after all the details are hashed out they are ready to sign.  The big media firm asks the freelancer to actually come to their White Plains office to execute the contract because “oh, that’s just where the person who needs to sign it happens to be that day” but don’t worry, they’ll totally send a car for you or reimburse your traveling costs.  Well not what?  You have a contract drawn up and executed in White Plains, with a Jurisdiction Clause that almost certainly reads The parties submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of The State of New York, The City of White Plains".   So yeah, now what?  Just because the freelancer is based in NYC can they use this legislation to enforce a judicial order of payment?  Yes, § 20-931 mentions that the "director" will decide the jurisdiction (meaning the state will decide the jurisdiction) but has no language to specifically supersede a jurisdiction clause. You KNOW the big company is going to fight the hell out of that jurisdictional argument and if they can’t shred it to pieces right there, they’ll just drag it out like they do with everything else.  What if they had actually had this contract executed in a Newark, or Hartford office, in an entirely different state?  It has yet to be seen if this law will force an osmotic movement of freelance hiring out of the New York Limits by large companies that have done this for so long it's not just standard practice for them.  No way to know until this is really put to the test.

Caption is redundant.

 Well, when De Blasio vetoes the thing (and he will for some bullshit), then it will come back in 2-18 weeks for him to sign.  Someone should check to see if  § 20-931 is still intact.  It actually doesn’t matter because the other “first thing” these massive media firms are going to do is start hiring freelancers that live in Nassau, Suffolk, Westchester Counties, and New Jersey.  Not like that’s gonna be hard to do. 

Not to worry, signing at the White Plains office is exactly the same as signing in Manhattan.
Would this face lie to you?

So why does this matter?  Well it fucking should.  Don’t you like animation, and manga, and games, and online content, and music?  Why should you be ok if the creative person who worked on it gets screwed just because some major media company feels like straight up not paying them?  These creatives are massive sources of fan generated content that keeps the fandom alive.  Artist Alley at Conventions, Youtubers, Podcasters, webcomic artists, and so many others make their living in these creative fields doing commercial work.  Being exposed to this literal injustice hurts these people who participate in the fandom, and Patreon is NOT going to cut it.  When an artist gets screwed out of $6,000, that’s 3 month’s rent, and if they can’t make it, the first thing that happens is we see the word “Hiatus” on the websites of their fan projects.   That’s why these protections are important to fandom across the board, and that’s why whoever you are and wherever you are, you can urge your government representatives (Local, State, and Federal) to follow this examples and make sure that a good fan artist or great animator is able to make it to that convention because they no longer have to worry about having to wait 6 months to get half of what they agreed on for work they have long since finished.  A printed letter and a stamp is literally the least you can do.  Yeah, I know snail mail is prehistoric... but so are our reps, and it's the only thing they understand.