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‘It’s Possible’: An Entertainment Lawyer Says Production During COVID Is All About Backup Plans

Entertainment lawyer Elsa Ramo has been advising clients on when — and if — they should get back to work.

Shooting in the COVID era.

Floyd Russ

Entertainment lawyer Elsa Ramo founded Ramo Law PC on the Universal backlot. Today, her firm of 12 attorneys handles 100 films and 30 TV shows a year, with clients ranging from A24 to Netflix. As productions cautiously return — or assess if it’s safe to do so — Ramo’s work has taken on a fresh urgency. She spoke to IndieWire about how she’s been advising clients to assess their productions and what sort of changes the upcoming months might bring.

When producers come to you, how do you assess whether they should try to move forward or wait?

Look, it’s not my job to say “wait” or “go.” The question is, if they want to go, how can they make it work?

Sure, but you’re allowed to have an opinion on this, too.

It’s a function of whether they have the financial resources for a plan B. You can do everything perfectly and there still could be an outbreak. So the fundamental question is, “Who’s going to write the check if cameras roll and someone’s sick on the second day?” If there isn’t a place to put that liability, they should not proceed. Now, where is that liability is being put right now? Sometimes it’s the network; sometimes, the producer; sometimes, it’s a high-net-worth individual willing to guarantee that risk. If that exists — if someone can cover the worst-case scenario, and there’s an ability to beef up the production protocols to cover the cost — then it’s possible.

What would you say are the biggest challenges in assessing how productions move forward now?

Just when we think we have a plan, it’s broken apart. There are a couple of brick walls, but people are figuring out the workarounds. There still isn’t any insurance to cover COVID claims, so whether liability rests with the studio or financiers has to be assessed on a production-by-production basis. There is legislation supposedly in the works to be able to have COVID-related claims covered with government support through insurance companies. That’s a work in progress. Most completion bonds are not able to insert them into independently financed projects because they don’t want to cover something where there’s such a vast exclusion on insurance. That’s a challenge.

How are the latest guidelines easing conversations about risk?

In March, we didn’t know what to do. In August, looking down the path of what we’re shooting imminently, we know what sort of tools we need. We have to come up with a production plan. With each real-life instance of a shoot, you recalibrate and figure out what’s working and what’s not.

California issued a white paper of production protocols that has become an evolving document among various studios and independent producers. Everyone from Lionsgate to Warner Bros. has prepared their own production guidelines for how you shoot during COVID. The kind of cherry on top of that, which I view to be essential for getting talent to show up, is that SAG hired an epidemiologist, the DGA is very involved as well, and they have to sign off on those standards.

What are some of the more recent conversations you’ve had about improving production standards?

In the past week alone, one issue that came up was that productions that have on-site testing are being administered by PAs. Is that really as reliable as having a doctor come to set? Also, there’s the issue of people doing makeup with individuals in a trailer that everyone’s going in and out of all day, where the air droplets are there. Can we do it outside? Things like that are always being retooled.

Then you have the issue of what happens when somebody tests positive on a production set. How do we implement the procedures we have so there’s not a full-blown outbreak?

So how do you respond?

People are working in germ circles so when there is a positive test, you can very quickly draw a circle around the people who have been in contact with those people. Productions have been good about that. They have really identified which pods need to work together and avoided cross-contaminating them.

The idea is that person gets sent home and those who were in contact with that person must be immediately tested and evaluated. Whether it rises to the level of quarantine is something we have to figure out on a case-by-case basis with all the variables involved. There is no black-and-white answer.

How do you feel about non-union projects right now?

Look, a lot of unscripted stuff is non-union. We’re doing a lot of tiny little movies where the risk is by the person writing the check. In that case, as producer or production company, you still have an extreme amount of liability and you have to mitigate that with protocols that you feel comfortable about. You won’t have insurance. The reality, particularly in California and New York, is that if somebody gets infected you have to cover their sick pay. Those liabilities and cost are severe. Even producers who feel like they can surpass the guise of the unions still have to make sure they have a safe work environment for people that are shooting.

What sort of role does an attorney have in discussing the stories filmmakers want to tell?

I have been on calls where that intimate scene doesn’t make sense. If the masks are off, you’re asking them to swap spit. It doesn’t make sense to put two people at risk. You’re just asking for it on the off-chance that the test was a false negative. In terms of large groups of people, there are conversations about how CGI can tell a story. The one thing that’s definitely happened is that the pre-production process has become COVID-proof. The idea of this pre-production office doesn’t exist anymore. Development meetings with writers and executives are remote. I think with problems come change. It’s really giving people the sense that you don’t need those extra people on set in the first place. After all, how disgusting is the craft services table because of the pandemic? I don’t we’ll ever have an open veggie tray on a set ever again.

What sort of progress are you seeing on the testing front?

I was just on a call with a union that’s trying to figure this out. They’re taking a week-by-week approach to figure out what’s reliable or not. There seems to be consensus that nasal swabs administered by a medical professional across the board has a level of reliability. But some productions just can’t afford to test people multiple times a week. If the performer has to leave set, get a test, and come back, they should be paid for that time. That’s extremely cost prohibitive and maybe not possible.

I had one of my clients vetting a machine they would buy for their company and self-administer. I think what we’re going to be doing testing-wise in three months is going to be wildly different because the data’s changing so rapidly. But the throughline is that it seems thus far the most reliable thing is when it’s administered by a health professional. I will say that networks and studios have taken different positions on this. It’s also a function of the environment. Is your shoot like the NBA bubble, or are people going home every day and seeing their kids? If it’s the latter case, the testing has to be more frequent. You can’t rely on test number one if it’s a four-week shoot. We’ve had situations where someone tested positive after testing negative the day before. Two days later, they test negative. Do we let them back to set or quarantine them?

You quarantine them! Right?

For now, we’re trying to push people to err on the side of caution. I’m not a scientist. I can’t say where the negative and positive lies in terms of transmission.

There is a fear that a vaccine might be rushed to market too soon. But how much a gamechanger would it be on the production front?

I definitely don’t think it’ll happen overnight. From my peripheral knowledge, the vaccine is a rollout. Maybe older actors can come to set, but there is still the danger of transmission if the vaccine is not fully available. The other component that has come up in a lot of conversations is whether there will be currency or value to someone that’s tested positive for the antibody test. Does it minimize the risk to know that, say, 80 percent of the production has had COVID? Is there discrimination in that? It’s sort of like a “Hunger Games” thing. Are you the chosen one now to have a positive antibodies test that suggests we don’t have to worry about you? Those things haven’t come to fruition yet, but they’re real conversations happening with attorneys, unions, and producers wrapping their head around it.

What is your read on antibody tests?

I talked to a couple of people on the insurance legislation side, and there’s a lot of discussion about whether you can tip scales toward using the antibody test in a reliable way. But we’re not there yet. That’s been a huge factor in evaluating risk to see if you can cover COVID claims.

Where do you think of the need to hire COVID safety officers on set?

We live in a capitalist society. You can get a safety officer, people with real knowledge bases, at all sizes and scales. Some people do it hourly; others can be a line item in your budget and come there every day. As a producer, you can’t assume you’re able to speak to the transmission of a disease, and you need someone there who has a little bit of experience to guide it on top of legal.

How much have the last few months changed the volume of work you’ve taken on?

From March until about May, we were doing a lot of therapy with people. Now, we’re not at the level productions we had a year ago, but that’s been supplemented by solving a lot of problems. There are just so many other legal ramifications that didn’t exist a year ago. It’s also about figuring out where there are opportunities. How do we restructure content in representing content in that realm? People feel like it’s a distressed period, so there will be a lot of equity or debt opportunities. I am still preparing my staff. You can’t just slow things down for a few months while everybody binge-watches Netflix or other platforms and not have to make up for it in content. We’re started to feel the ripples of that and get busier on production. But the floodgates haven’t opened yet. If there isn’t a second wave, then I think there will be a huge flux in December and January. It really depends on what happens next.

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