(a) To qualify for the creative professional exemption, an
employee's primary duty must be the performance of work requiring
invention, imagination, originality or talent in a recognized field of
artistic or creative endeavor as opposed to routine mental, manual,
mechanical or physical work. The exemption does not apply to work which
can be produced by a person with general manual or intellectual ability
and training.
(b) To qualify for exemption as a creative professional, the work
performed must be ``in a recognized field of artistic or creative
endeavor.'' This includes such fields as music, writing, acting and the
graphic arts.
(c) The requirement of ``invention, imagination, originality or
talent'' distinguishes the creative professions from work that
primarily depends on intelligence, diligence and accuracy. The duties
of employees vary widely, and exemption as a creative professional
depends on the extent of the invention, imagination, originality or
talent exercised by the employee. Determination of exempt creative
professional status, therefore, must be made on a case-by-case basis.
This requirement generally is met by actors, musicians, composers,
conductors, and soloists; painters who at most are given the subject
matter of their painting; cartoonists who are merely told the title or
underlying concept of a cartoon and must rely on their own creative
ability to express the concept; essayists, novelists, short-story
writers and screen-play writers who choose their own subjects and hand
in a finished piece of work to their employers (the majority of such
persons are, of course, not employees but self-employed); and persons
holding the more responsible writing positions in advertising agencies.
This requirement generally is not met by a person who is employed as a
copyist, as an ``animator'' of motion-picture cartoons, or as a
retoucher of photographs, since such work is not properly described as
creative in character.
(d) Journalists may satisfy the duties requirements for the
creative professional exemption if their primary duty is work requiring
invention, imagination, originality or talent, as opposed to work which
depends primarily on intelligence, diligence and accuracy. Employees of
newspapers, magazines, television and other media are not exempt
creative professionals if they only collect, organize and record
information that is routine or already public, or if they do not
contribute a unique interpretation or analysis to a news product. Thus,
for example, newspaper reporters who merely rewrite press releases or
who write standard recounts of public information by gathering facts on
routine community events are not exempt creative professionals.
Reporters also do not qualify as exempt creative professionals if their
work product is subject to substantial control by the employer.
However, journalists may qualify as exempt creative professionals if
their primary duty is performing on the air in radio, television or
other electronic media; conducting investigative interviews; analyzing
or interpreting public events; writing editorials, opinion columns or
other commentary; or acting as a narrator or commentator.
