Surely you have heard the following deep, existential query one too many times - "If a tree falls in a forest when no when is around, does it make a sound?"
Well, let's try a new one. If a performer [choose one:] sings/acts/dances/juggles and there is no audience, is it a performance?
While you are pondering that, let's take a look at the legal relationship which (hopefully) will take the performer from singing for cockroaches in his kitchen to wowing a paying audience in a packed auditorium.
WHAT DOES AN AGENT DO?
Of all the members of your "team" as a performer in the entertainment industry, it is your agent who perhaps has the most clearly defined role. Your personal manager is responsible for advising you on all facets of your career, from your image to your choice of collaborators.
Your attorney is responsible for a wide
range of legal issues, including setting up your business structure, reviewing your contracts and protecting your intellectual property. The agent, however, has only one function - getting you
Talent agencies range from the giants such as CAA, ICM and William Morris to the smaller one person operations. While the large agencies cover the whole spectrum, the
smaller agencies often specialize in different areas of
the entertainment industry such as niteclubs, dance companies, film and corporate parties.
The real trick, though, is finding an agent. Talent agents (also known as booking agents) not surprisingly tend to sign performers who have a demonstrated ability to fill a room with warm bodies. This means that many artists end up doing their own booking initially.
Management and agency contracts are substantially similar with only a few distinctions. Most agents will represent artists on an exclusive basis. This means that anyone who wants to engage the artist must negotiate with the agent. This also means that the agency may be entitled to a commission derived from virtually all of artist's employment in the entertainment industry.
Generally, talent agency agreements have an initial
term of 1 to 3 years. Additional 1 year options are possible, sometimes based on certain specified levels
of income having been achieved during the term.
Agents generally receive a commission which ranges between 10 to 20%. However, most performers' union agreements impose a 10% cap on agents commissions.
The artist should always limit the commisionable income to live performance monies and exclude any recording and publishing income. Furthermore, unless the artist is signed to one of the big agencies which puts together package deals in a variety of media, the artist will not want the music agent to be commisioning income derived from acting gigs.
Except for the provisions relating to commisions, agency agreements, unlike management agreements, tend to be non-negotiable. One reason for this is that talent agencies who work with union-affiliated artists are
obligated to use artist-friendly forms of agreement
drafted by the union lawyers.
Furthermore, it is important to note that some states, such as California, require that talent agencies be licensed by the State Labor Commission. As a result, in the State of California, a non-licensed individual, including a manager, may not secure employment for an artist. An exception to this law does permit a non-licensed individual from procuring a recording contract for an artist.
The rationale for regulating talent agencies is to
protect artists from entering into an unfair contracts. California's licensing procedure consists of requiring prospective agents to be bonded and fingerprinted, and for the approval of the talent agencies contracts by the state labor commission.
Furthermore, each agent must post in their office a schedule of fees and a description of dispute resolution procedures. In California, the approval of contracts is handled by the Division of Labor Standards Enforcement. Their mandate is set forth in Labor Code Section 1700.2:
Every talent agency shall submit to the Labor Commissioner a form or forms of contract to be utilized by such talent agency in entering into written contracts with artists for the employment of the services of such talent agency by such artists, and secure the approval of the Labor Commissioner thereof. Such approval shall not be withheld as to any proposed form of contract unless such proposed form of contract is unfair, unjust and oppressive to the artist.
Significantly, the approval process results in several of the major distinctions between management contracts and talent agency contracts. Consider the following provision which would be standard in talent agency agreements in every state, including until recently, California:
Agent is not required to make any loans or advances hereunder to Artist or for Artist account nor incur any expenses on Artist behalf, but, in the event Agent does so, Artist shall repay to, or reimburse, Agent no less frequently than monthly for such loans, advances and or expenses incurred (including, without limitation, photocopying and postage expenses, air and ground transportation and lodging and living expenses while traveling, promotion and publicity expenses, conference fees, registration fees, exhibition booth fees, equipment rental fees, showcase expenses, and all other expenses, whether incurred prior to or during the Term, relating to Agent's services in accordance with this Agreement).
The DLSE's current policy is that a talent agency
contract may not provide for reimbursement of expenses by the agency. The DLSE view is that a talent agency's sole source of compensation is commissions and that such reimbursement for expenses would be analogous to a prohibited registration fee.
Firstly, there is an obvious distinction between a registration fee and the reimbursement of expenses for specific items. For example, if a talent agency should incur expenses in connection with attending an industry conference on behalf of a specific artist, the expenses of travel and registration fees are commonly subject to reimbursement by the agency. Secondly, that argument is contrary to the provisions of Labor Code Section 1700.40 (a), which reads as follows:
No talent agency shall collect a registration fee. In the event that a talent agency shall collect from an artist a fee or expenses for obtaining employment for the artist, and the artist shall fail to procure the employment, or the artist shall fail to be paid for the employment, the talent agency shall, upon demand therefor, repay to the artist the fee and expenses so collected. Unless repayment thereof is made within 48 hours after demand therefor, the talent agency shall pay to the artist an additional sum equal to the amount of the fee.
Clearly, the express reference to "a fee or expenses" indicates that a contractual provision dealing with "expenses" is customary and
legitimate. And there is no section of the Labor Code or the California Code of Regulations which would prohibit such a provision.
As stated above, Section 1700.23 of the Code provides that approval "shall not be withheld as to any proposed form of contract unless such proposed
form of contract is unfair, unjust and oppressive to the
artist." Accordingly, the DLSE's disapproval of this provision without the support of any express statutory or regulatory authority, or without any legitimate public
purpose, is not only unfair to talent agencies, but is
also of dubious legal authority.
In addition, many talent agency contracts have a provision which allows the agent to collect a commission for a period of time after the term of the agreement derived from rebookings which originated from the agent's original efforts. Such a provision might state that:
If, within one (1) year after the end of the Term hereof, Artist accepts any offer on Terms similar or reasonably comparable to any offer made to Artist during the Term hereof, from or through the same offeror or any person, firm or corporation directly or indirectly connected with such offeror, the contract resulting therefrom (oral or written), shall be subject to all the Terms hereof.
Again, to the best of my knowledge, there is no section of the Labor Code or the California Code of
Regulations which would prohibit such a provision.
Nevertheless, the DLSE has stated that such a provision
will not be approved, unless the period is limited to 4 months, because it would give an unfair advantage to any one agency.
However, this would appear not to be an appropriate basis for disapproval. Section 1700.23 of the Code provides that approval "shall not be withheld as to any proposed form of contract unless such proposed form of contract is unfair, unjust and oppressive to the artist". Competitiveness with other talent agencies is not a legitimate purpose of state's review process.
Finally, unlike most management agreements, indemnification of the agency by the Artist is not permitted. Nor is a provision for injunctive relief in the event of any dispute between artist and agency.
FINDING AN AGENT
As with finding a manager or an attorney, the best method for finding a talent agency is by word of mouth from other artists in your field.
In addition, there are
reference books such as the Recording Industry Sourcebook and the YellowPages which list talent agencies.
As with any member you are considering your team it is important to select an agent who is:
- familiar with the venues which are appropriate for your particular genre and
- enthusiastic about working with you
For this reason, for the artist who is starting out, it is sometimes more effective to work with an energetic, but less experienced agent rather than attempting to sign with one of the giants and getting lost in the shuffle.