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October 13, 2016 | Entertainment

Is Your Talent Agency Agreement Fair?

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Marc D. Ostrow

Of Counsel

Olivia Loftin

Associate Attorney

Updated: October 5, 2022

You’ve just started a career in the entertainment industry – whether that means you are an actor, model, musician or social media influencer.  You have found a talent agent, and you think they might be able to help you find work, assist you in making connections and negotiate contracts on your behalf.  This is different than your manager’s role, as your manager likely only advises and manages your career.

When you hire your talent agent, they will typically require you to sign a talent agency agreement.  Keep these tips in mind before you sign on the dotted line:

Determine the Scope of Your Agent’s Representation

Are you looking for assistance in obtaining acting and modeling work?  Each individual agent and agency may specialize in a particular part of the entertainment industry.  Some agents only work with models, while other agents specialize in working with only actors or only musicians.  Some agents can represent you in more than one area of the entertainment industry.  Because each agent is different, it is important to define the scope of your agent’s representation.

Ask: Is the agreement with your agent exclusive or non-exclusive?  If your agreement is non-exclusive, then you could be free to find another agent to represent you in any capacity.  If your agent agreement is exclusive, but only exclusive to finding you acting work, then you would be free to find another agent to represent you for your modeling work.  Is your agreement limited to only a certain kind of work?  Is the agreement – or at least the exclusivity – limited to a specific territory, such as the U.S. and Canada, only?  Are other non-related sources of income excluded from the agent’s commission fee?

Know the Maximum Percentage an Agent Can Charge as a Fee

Each state treats key parts of the agreement in different ways.  In New York, agents can charge a maximum of 10% of the talent’s compensation as a fee, for most talent agreements.  Industry customs tend to dictate the fees in California, where the maximum is set at 20% (though, union agreements usually bring this down to 10%).  Agreements in Florida require that a talent agent pay the artist within five business days after receiving payment from the employer, though most other states are silent on such a requirement.  Knowing the law is the first step in deciding if the agreement you have been asked to sign is legal and fair.

Also pay attention to how the fee is calculated.  It may be a percentage of all gross income you earn in the entertainment industry (ideal for the agent) or a percentage of income from only the jobs procured by the agent (ideal for the talent).

Make Sure That the Term of the Contract Is Reasonable

Fee provisions are not the only important provisions; you should also look at how long the proposed agreement will last.  The duration of most initial agreements is between one and three years.  Specific guilds, such as those representing directors and writers, put the initial term at a maximum of two years.  Most renewal periods will be, at most, three years long—anything longer likely runs contrary to industry standards.

Most agreements will also include a “sunset” clause, which entitles the agent to receive commissions based upon agreements entered into during the term, but where payment is made after the term has expired.  You will want to limit your former agent taking any portion of your income for as short a period as possible.  Further, the percentage that the agent takes should steadily decrease (i.e., “sunset”) during the length of the sunset clause period.

Watch Out for Agents Looking for an Advance Fee

Most states agree on one thing: talent agents cannot charge an advance fee.  Consequently, you shouldn’t sign an agreement that contains a requirement for any up-front payments.  New York takes this a step further by prohibiting employment agencies (which includes talent agencies) from advertising their services if an advanced fee is part of the agreement.

Understand What Your Agent Is Supposed To Do for You

Finally, all agents owe certain duties to act honestly and in the best interests of their clients.  This is implied in all agent-client relationships, a reflection of the high level of trust necessary for a successful arrangement.  The agent is required to keep the client fully informed and to diligently review potential employment opportunities on behalf of clients.  For example, New York requires that agents investigate potential employers to determine whether they have a history of overdue or missed payments to previous employees before securing work for a client with that employer.  Any agreement that tries to limit or remove this essential duty is not fair to the client, as is any conduct that shows that an agent has neglected this duty.  Make sure that the agent you sign with is going to do their best to protect your interests and find you quality work for which you will be timely paid.

If you are interested in signing with a talent agency, you may want to consult with an experienced entertainment attorney first.  Your lawyer can help you determine if the agreement meets industry standards, walk you through the terms and help negotiate with the talent agent.  Experienced entertainment attorneys at Romano Law are ready to help.  Please contact us to speak with a member of our team.

Photo by  Jakob Owens on Unsplash
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