Ready on the Set?

Originally Posted On
Ad Age

The ad industry prepares for commercial production to resume, but production shops, marketers and agencies still face liability and insurance issues

Masks. Hand sanitizer. Emotional support access.

These are just a few of the stringent precautions outlined in a 22-page white paper drawn up last week by Hollywood’s guilds and producers, working with unions on how to safely reopen production. But agencies and brands could face insurance liabilities if crew members or talent contract COVID-19.

“It’s a gamble at this point,” says Isadora Chesler, RPA senior VP and director of video production.

The new pitch

The “Proposed Health and Safety Guidelines for Motion Picture, Television, and Streaming Productions During the COVID-19 Pandemic” document, Deadline reported, is an effort on the part of members of the Economic Resiliency Task Force. The document was sent to California Gov. Gavin Newsom and New York Gov. Andrew Cuomo.

According to The Hollywood Reporter, Newsom announced that “Music, TV and film production may resume in California, recommended no sooner than June 12.” The California Department of Public Health said in a statement via the Governor’s Office on Friday, per The Hollywood Reporter, that production will be “subject to approval by county public health officers within the jurisdictions of operations following their review of local epidemiological data including cases per 100,000 population, rate of test positivity, and local preparedness to support a health care surge, vulnerable populations, contact tracing and testing.”

The guidelines include “regular screening, diagnostic testing, use of personal protective equipment, cleaning and disinfecting work sites, and appropriate response should an employee contract COVID-19 or be exposed to it.”

In addition to physical distancing, the guidelines call for enhanced sanitation and hand hygiene. PPE masks will be provided to everyone on set and a COVID-19 compliance officer must be present to ensure those working on the production follow the guidelines, according to the documents.

The task force also recommends creating an “emotional support hotline, telemedical health and behavioral health resources, mindfulness training” as “resuming production during this time may be highly stressful and cause anxiety.”

Wait and see

Many production companies and agencies in and around the L.A. area are in a “wait-and-see” mode. As many companies have said since the start of the pandemic in March, remote production has been able to be carried out rather smoothly, so there’s no rush to return to physical sets if not safe to do so.

Peter Williams, executive producer of BBH L.A., says that this marks a period of transition for the industry that had often improvised during the height of the pandemic. “While L.A. is beginning to open, production must be a forward-thought to any brief now, requiring us to re-look at our tool set in a way that provokes what can we make and how to do it as our first step. No more ‘we’ll figure it out,’” Williams says, noting that he expects fewer people spaced farther apart on sets.

“At one extreme, some film and TV productions are quarantined in prep and throughout production. That’s less likely for the speed at which commercial production runs, but I do think agencies and clients will continue attending shoots remotely for the time being,” Williams says.

Independent agency Pereira O’Dell, with offices in New York and San Francisco, is beginning to make plans to begin production in California.

“We are speaking with several production companies on various scenarios,” Founder-CEO Andrew O’Dell says, while adding still that clients’ “No. 1 priority is to make sure everything is completely safe for all people involved.”

Chesler says she and her team are taking two ideas to clients: one that involves an in-person shoot and one that is CGI-based in case production cannot be carried out.

“I’m so in the middle of it right now,” Chesler says. “We’re about five months away from the September dates we’re trying to hit for [one] campaign. We’ve come up with full CGI ideas and some ideas we can shoot.”

And scene

Mondelēz International has a shoot coming up in the next few weeks for Ritz that marks the snack maker’s first live-action production since the outbreak. It’s slated to be a relatively simple shoot shot on a green screen. The plan is to employ a small crew in Austin, Texas, with a list of who is allowed on set, who is on the perimeter and who will be off. The director will be directing remotely from Los Angeles, so only the most necessary crew members will be allowed on set. The client and agency plan to watch virtually and collaborate in real-time with those on the scene.

Marcelo Pascoa, global head of brand marketing at Burger King, says the fast-food giant is “ramping up our shoot and film capabilities in Los Angeles” while “taking all the necessary precautions mandated by local and health authorities to ensure the safety of our team. We are doing this in collaboration with local officials, key stakeholders and our creative agencies.”

Weeks, not months

“There has been a quantity of work still being done during the shutdown,” says Matt Miller, CEO of the Association of Independent Commercial Producers. “People had the ingenuity to shoot some things remotely and do work, particularly in the post-production area. It wasn’t necessarily the highest-level big budget work.”

As more production reopens, Miller says some marketers have been willing to pay 100 percent upfront, understanding that it’s harder, more expensive and may require more work beforehand to meet safety protocols now.

“I think we’re in the weeks, not months, from starting to see a decent amount of activity.”

As production starts up again, reluctance to travel to overseas locations will have a bearing, Miller says. That may provide a boost for domestic crews, casts and companies that supply production equipment. But he also says, “Some foreign locations are starting to open up and U.S. production companies are tapping into those locations remotely. It is an interesting development. I don’t know how sustainable it is, but you may have a director stateside directing a crew in Denmark or Iceland.”

Who is liable?

RPA’s Chesler and Kris Kachikis—a cinematographer who’s been holding weekly industry-wide Zoom roundtables on the matter of reopening production in California—say insurance companies will not cover costs lost on a production if related to COVID-19. So, if a company secures a permit to shoot and then there’s another outbreak, it loses that permit. Chesler says “50 percent” of the money invested in that ad could be lost. Chesler says that Santa Monica, California-based RPA dealt with productions being shut down after permits were already secured when the pandemic began in March.

Protecting talent is another issue, even with the guidelines, and Chesler speculates some people may not feel comfortable working on a shoot until there’s a vaccine for COVID-19.

“If someone contracts COVID on set, how do they prove that?” asks Kachikis. “And how does workers comp affect the production companies? We don’t want to cripple them. Who’s on the hook for that kind of thing?”

Newsom signed an executive order in California that says if employees contract COVID-19 within 14 days of working, it is assumed they contracted it on the job and the employer is held responsible, says Tricia L. Legittino, co-chair of the litigation and employment at law firm Frankfurt Kurnit Klein & Selz.

Legittino says the issue is figuring out who the employer is: the production shop, agency or brand marketer. The answer to that “really depends” on the situation, she says.

Legittino advises companies to hash out these type of liability concerns in their contracts before starting a shoot.

Chesler says “it’s all very nuanced.” She’s worries that with L.A. being so densely populated and with likely stricter guidelines than other states, production may move out of the city.

“We’re anxious to get back to filming, but we’re not sure how this is going to go,” she says. “I’m fearing the runaway production.”