The Hollywood Reporter recently reported on the unsustainable chasm between how show business works and how the Labor Commissioner interprets the Act.
For 73 years, California’s courts, following the State’s Labor Commissioner’s interpretation, have enforced the Talent Agencies Act (“TAA,” “Act”) as if the licensing scheme had a statute giving licensed talent agents the exclusive right to procure work for artists and another giving adjudicators authority to void the contractual rights of unlicensed procurers.
“As if” is the question, as the enforcement is misaligned with the Legislature’s enacted verbiage. The Commissioner interprets CA Lab. Code § 1700.4 (a) to reserve procurement for licensed talent agents, but the statute only lists the three defining activities of talent agents—procuring for, directing, and counseling artists—and it has no verbiage expressly reserving any of those activities for licensees.
Likewise, despite the Commissioner uniformly voiding the contractual rights of unlicensed procurers, as Marathon Entertainment v. Rosa Blasi, 42 Cal. 4th 974, 991, 991, 996 (2008) repeatedly notes, the Act has no remedy for unlicensed procurement.
However, no state court has considered or opined on the implications of these contradictions. That may change this year.
On February 19th, California’s Supreme Court formally accepted the Petition for Review of Pro Per Rick Siegel, not coincidentally the owner of Marathon Entertainment, who has been fighting this largely quixotic journey ever since.
If review is granted, the Court will have agreed to decide whether – as it does for all other state and federal laws (see United States v Evans, 333 U.S. 483, 486 (1948), Wood v. Krepps, 168 Cal. 382, 386 (1914), Dyna-Med v. Employment and Housing Comm., 43 Cal. 3d 1379, 1386-1387 (1987) – the lack of a prohibition statute and associated remedy makes the Commissioner’s voiding an unlicensed procurer’s contractual rights unconstitutional.
Clinton Billups, the president of The National Conference of Personal Managers (NCOPM), does not doubt the importance of this case. The organization estimates that this legal anomaly—the TAA is interpreted and enforced differently than all other licensing schemes with similar language—has resulted in some half-billion dollars ($500,000,000) in otherwise deserved compensation either voided, abandoned or settled away from personal managers over the years.
The NCOPM has already submitted an amicus letter to the Court beseeching it to review the case. The letter substantively affirms its belief in Siegel’s arguments and brings attention to the group’s concern that the Act also violates the Dormant Commerce Clause, along with the Excessive Fines Clause of the 8th Amendment and the Due Process and Equal Protection provisions of the 14th Amendment.
The Hollywood Reporter recently reported on the unsustainable chasm between how show business works and how the Labor Commissioner interprets the Act. While it’s technically illegal for managers to procure work for their entertainment clients in California, the practice is widely acknowledged as an industry standard. Neither, explains Siegel, do they fulfill their responsibilities to their clients and ‘not procure.’ Courts have universally acknowledged that personal managers take on neophyte clients agents have no interest in, then help buttress the artist’s resume until they can convince a talent agency to join the team as the sales team. This means courts understand managers procure until such time they can hire and supervise the direct procurers, all clearly part of the procurement process.
Explains Siegel, “Artists hire personal managers to maximize the quality and quantity of their career decisions. That requires procurement; no one wants to pay a percentage of their salary to someone not helping to increase their revenue, who can tell them, ‘You look best in blue.’ It makes no sense in an industry that, even in good times, suffers from 90% unemployment. CA legislators would have given or wanted agents, who only concentrate on the working 10%, to have a monopoly on getting clients’ work.
Along with the NCOPM, the Court has already received letters from multiple individual personal managers, Professor Kevin J. Greene, the John J. Schumacher Chair at Southwestern Law School, and the domestic division of the Music Managers Forum (MMF-US), the leading trade association in the United States for artists’ managers and self-managed artists. According to Billups, “Between other representation organizations and individual managers, we expect the Court will receive hundreds of missives urging it to clarify what we can and cannot lawfully do. The Marathon decision noted the many letters it received noting how we ‘owe a fiduciary duty’ to our clients to procure, and as High Courts want to know the cases they consider are meaningful, not just for the litigants, but for whole groups of people, we want to do the same thing here.”
If the Court takes the case, Siegel thinks it is more likely the justices will recognize that without the TAA having a remedy for unlicensed procurers, the enforcement has been unconstitutional, violating the due process and equal protection clauses of the 14th Amendment, and the Excessive Fines Clause of the 8th Amendment. Worries Siegel, “Or the justices could also decline to hear the case, which is why getting the word out and getting people to support this effort by submitting amicus letters like the NCOPM, MMF and have already done is so important.
“The Court of Appeals ruled that as an ‘intermediate appellate court,’ they had to follow the decisions of the CA Supreme Court, which had already found the enforcement is constitutional. But that’s not so; Marathon only questioned the constitutionality of entwining personal managers into a licensing scheme about a different profession, and the only other case that reached the High Court, 2001’s Styne v Stevens, was not asked and did not consider constitutional questions.”
About RICK SIEGEL
Rick Siegel was a personal manager from 1990 – to 2008, helping develop the careers of, among others, Ellen DeGeneres, Craig Ferguson, Leah Remini, Seth Rogen, and Nia Vardalos (MY BIG FAT GREEK WEDDING). In 2008, he won a landmark TAA decision at the CA Supreme Court, but it only, in his words, ‘won half the battle’, which is why he kept up the quest to finish ‘righting the wrong.’ He went back into management in 2018 and currently represents a coterie of writers and funny performers.
About NCOPM
The National Conference of Personal Managers (NCOPM) is the oldest and largest professional association of personal managers. It represents the interests of entertainment, media, music, sports, and talent managers across the United States. Since its inception, the organization has been advocating for personal managers’ rights and professional standards.
About MMF
The Music Managers Forum (MMF) is a trade association for music managers and self-managed artists that provides a diverse platform to connect, educate, and advocate for the music management community. Our goal is to further the interests of managers and their artists in all fields of the music industry, including live performance, publishing, recording, investment, copyrights, and streaming.
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