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MANAGERS, AGENTS, AND PROCURING EMPLOYMENT – THE CALIFORNIA TALENT AGENCY ACT

MANAGERS, AGENTS, AND PROCURING EMPLOYMENT

California’s Talent Agency Act (“Act”) requires a person or entity to have a license to act as an agent for talent (e.g., artists, signers, musicians).  The Act defines an agent as “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.” http://www.dir.ca.gov/dlse/talent_agency_license.html

The question is, what exactly is “procuring employment”? And, does this mean that managers cannot book shows for talent?  The answer to the second question is yes: the Act effectively prohibits artist managers from booking shows, and it is standard for management agreements to contain a clause that state they will not do so, and whereby artist acknowledges that they agree that manager will not do so.

The answer to the first question is a bit more nuanced, but in general, booking shows is “procuring employment” and thus, managers are barred from doing so.  How can this be?  It is industry standard for managers (also referred to as business managers or artist managers) to oversee and guide every aspect of an artist’s career, from recording sessions, to appearances and tours.  So, it would seem natural that a manager is also booking shows.  However, the Act prohibits such conduct, and there can be severe penalties for doing so, so severe in fact that a manager may have to give up all commissions earned, even those commissions not associated with conduct found to be unlawful.

COMPARABLE NEW YORK LAW AND CHALLENGES TO CALIFORNIA ACT

To deal with this seemingly nonsensical conflict, New York’s comparable talent agent act has an exception for artist managers which allows them to procure employment when that service is incidental to the other services they provide.

Meanwhile, California’s Act has been challenged by managers since its inception in the late 70’s.  It has not yet been successfully overturned or amended, despite valiant efforts.   One such effort came in November 2012, when the National Conference of Personal Managers (NCOPM) sued the California Governor, Attorney General, and Labor Commissioner, claiming that the Act was unconstitutional.

COMPARABLE NEW YORK LAW AND CHALLENGES TO CALIFORNIA ACT

California’s Department of Industrial Relations contains within it the Division of Labor Standards Enforcement (the DLSE), one of over 300 administrative agencies in California, and commonly referred to as the Labor Board, although technically that is not its name.  The California Labor Commissioner is the Chief of the DLSE (Labor Board), and responsible for overseeing enforcement of the Act.

There are unique rules and procedures for filing complaints with the DLSE.  These procedures and rules are contained within California’s Labor Code.

The DLSE has the power to oversee certain designated types of claims, but cannot decide claims out of these areas.  Thus, one consideration for talent before making a formal claim is whether an action should be filed with the DLSE or in state or federal court. It is also possible to bring different actions in different venues.

Authors: Krishna Parekh and Brandon Anand

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