California law makes a significant distinction between talent managers and talent agents, oftentimes with dire consequences for those who, wittingly or unwittingly, blur the line between the two roles. California’s Talent Agency Act requires anyone who solicits or procures artistic employment or engagements for artists to obtain a talent agency license. Labor Code §1700.4, 1700.5. Talent managers who have “solicited” or “procured” work for their clients may find their contracts voided by the Labor Commissioner (breach of contract), and may even be required to return some or all of their earned payments.
“Artists” that fall under the act include, but are not limited to, actors and actresses, radio artists, musical artists, directors, producers, writers, cinematographers, composers, lyricists, arrangers, models, and “other artists and persons rendering professional services in motion picture, theatrical, radio, television and other entertainment enterprises.” See Labor Code §1700.4(b). “Other entertainment enterprises” may seem to be an extremely broad category.
A talent agent is “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists.” Marathon Entertainment, Inc. v. Rosa Blasi (2008) 42 Cal. 4th 974, 983, 986, citing Labor Code §1700.4(a). “In Hollywood, talent agents act as intermediaries between the buyers and sellers of talent… Generally speaking, an agent’s focus is on the deal: on negotiating numerous short-term, project-specific engagements between buyers and sellers.” Id. at 983.
Talent managers, on the other hand, focus “on advising and counseling each artist with an eye to making the artist as marketable and attractive to talent buyers as possible, as well as managing the artist’s personal and professional life in a way that allows the artist to focus on creative productivity. ‘Personal managers primarily advise, counsel, direct, and coordinate the development of the artist’s career. They advise in both business and personal matters, frequently lend money to young artists, and serve as spokespersons for the artists.’” Id. at 984.
Frequently, however, it is expected that “the development of the artist’s career” involves introducing them to greater and better opportunities. Talent managers find themselves helping their clients by reaching out to their entertainment contacts in the industry about opportunities for their clients, exploring terms, negotiating contracts, and potentially engaging in activities for the benefit of their clients which entertainment litigators might one day claim are technical violations of the Talent Agency Act.
Many of the cases that find their way to the Labor Board involve an artist who, for one reason or another, no longer wants to pay his or her talent manager, and so complains that the manager has violated the Talent Agency Act. Any dispute involving the act must be first heard by the Labor Commissioner and cannot be brought in a court of law unless the commissioner has issued its ruling. It is not a forum friendly to the manager. According to a recent study by Forbes Magazine, ninety percent of the cases that have been referred to the Labor Commissioner in the last twenty years have been decided in favor of the artist. See “Walking on the California Talent Agency Act’s Thin Ice: Personal Managers Beware!”, by Richard Busch, Forbes March 25, 2013.
One way managers address what may seem to be an uneven playing field is to insert an arbitration clause in the management contract, requiring that any and all disputes be referred to arbitration. In the case of Preston v. Ferrer (2008) 522 U.S. 340, the United States Supreme Court upheld such an arbitration clause, even though by doing so it took away the Labor Board’s “exclusive jurisdiction.” Mr. Boesch of the Boesch Law Group was the arbitrator selected by the entertainment lawyers for both sides in the case, who upheld the arbitration clause and whose ruling was affirmed by the Supreme Court.
If you are a talent manager, talent agent, artist, or are otherwise involved in entertainment litigation and need to know more about the laws surrounding California’s Talent Agency Act, avoid disputes by speaking to a Los Angeles entertainment litigator who knows the rules and exceptions, who is respected by reputation, and who will fight to get you a fair and just result. To speak to a Los Angeles-based attorney who can help guide you through the legal process, please call us today at (310) 578-7880.
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