Talent agents serve an essential function in the entertainment industry by helping artists and performers secure employment and negotiate contracts. However, many states regulate talent agents to protect artists. In California, agents are regulated by the Talent Agencies Act (TAA). While on its face, the TAA is focused on licensing agents, it has had a significant impact on the activities of other parties, including artists, managers and attorneys. As a result, anyone helping an artist find work – even incidentally – should seek legal advice regarding whether and how the law may apply to them.
The law requires that talent agents be licensed by the California Labor Commissioner. The TAA does not set commission rates but does require that every licensed talent agency must file a schedule of fees to be charged and collected from artists with the Labor Commissioner. A talent agent’s form agreements with artists must be approved by the Labor Commissioner.
A talent agent is defined in the TAA as “any person or corporation who engages in the occupation of procuring, offering, promising or attempting to procure employment or engagements for an artist or artists.” This definition deliberately does not strictly define what actions constitute “procuring employment,” but the concept has been given a very broad reading by the Labor Commissioner and California courts.
“Procuring employment” encompasses not only soliciting employment or initiating contacts with employers; it also includes preparing estimates or negotiating contract terms. This is true even if it is only a single act of procurement incidental to other duties. Thus, anyone who procures employment for an artist is covered by the law regardless of whether they call themselves an agent or promises in their engagement agreement to procure work for an artist. A provision in an engagement agreement stating that someone is not acting as a talent agent will not prevent a finding that that person is a “talent agent” under the TAA. Courts and the Labor Commissioner have found that lawyers, personal managers, business managers and other parties qualify as “talent agents” under the TAA, where they have engaged in “procuring employment.”
The TAA defines artists as “actors and actresses rendering services on the legitimate stage and in the production of motion pictures, radio artists, musical artists, musical organizations, directors of legitimate stage, motion picture and radio productions, musical directors, writers, cinematographers, composers, lyricists, arrangers, models, and other artists and persons rendering professional services in motion pictures, theatrical, radio, television and other entertainment enterprises.” Generally, this encompasses on-camera talent, on-stage talent and certain other high-level creatives. Note, however, that the Labor Commissioner has held that still photographers (as distinct from cinematographers) are not artists under the TAA.
There are two exceptions – or safe harbors – where the TAA does not apply. First, an unlicensed person or corporation is permitted to act in conjunction with, and at the request of, a licensed talent agency in the negotiation of an employment contract. However, the unlicensed party must prove (i) that he worked with, and at the request of, a licensed agent, with the artist-client’s knowledge and approval and (ii) that his activities were limited solely to negotiating agreements already obtained by a licensed talent agent.
The other safe harbor applies to procuring recording contracts. An unlicensed person may procure and negotiate recording contracts on behalf of an artist, but may not engage in other procurement activities such as contracts for live performances, tours or music publishing.
In both cases, it is best to consult an attorney before procuring work for an artist to ensure that you fall within the TAA’s safe harbors.
Anyone who engages in procurement activities within California should seek legal advice regardless of where they are located. The TAA has been enforced against out-of-state parties who procure employment within the state, even where the activities relate to a performance that will be delivered outside California.
California allows artists who have signed agreements with unlicensed talent agents to petition the California Labor Commissioner to have their contracts voided. Further, unlicensed talent agents may be ordered to disgorge any commissions earned from acting as unlicensed agents. However, an artist can only obtain disgorgement of commissions earned within one year prior to petitioning the Labor Commissioner.
It can take the assistance of multiple parties for artists to find work. However, it is important to understand that, even if procuring employment for artists is not your primary responsibility, you may be subject to the TAA. Romano Law’s California entertainment law attorneys can offer advice on complying with all state laws and minimizing potential liability. Contact a member of our team today.
Joshua Graubart is admitted to practice law in New York, California, and New Jersey.