In November 2008, seven California-based licensed and bonded talent agencies came together and formed the Adult Entertainment Agents Trade Association. The mere fact that the "legal" talent agents have joined to form a trade association has caused a stir amongst numerous producers and performers alike. There has been much discussion as to talent rates and fear that the association will result in price fixing. This article will address the legal ramifications of what role an agent has and what this means to producers and performers.
First off, one must define what a talent agent is. Many in the industry try to blur the line between agents and managers. An agent is a person that secures employment for a performer. A manager is just that — he or she manages a performer's career — but cannot legally secure employment for their client.
In order for an agent to be "legal" that agent must be licensed and bonded by the state of California. Labor Code section 1700 et al., is the pertinent law in regards to the licensing of talent agents. If an agent is not licensed and bonded, he or she is operating illegally and cannot collect fees from the performers they represent. Moreover, any performer that has paid fees to an unlicensed agent can file a claim with the Division of Labor Standards and Enforcement and receive a complete refund on fees paid to that agent.
A licensed and bonded agent can collect up to a 20 percent fee of the work secured by their agent. An agent cannot collect more than 20 percent as the California Labor Code legally caps this.
What about talent rates? Talent should determine their own rates. Rates cannot be set across the industry by the agents. Doing so can appear to be collusion and price fixing. Rate fixing can result in legal action by producers and can violate antitrust as well as unfair competition laws. Free market conditions should also help determine talent rates.
TALENT AGENCY CONTRACTS: WHAT DO THEY MEAN?
Often performers want to change agents and try to further their careers. What can a performer do in case they want to break their contract with their agent? The best answer is to have a lawyer review the contract before signing it so that the performer can understand what the contract means. All licensed and bonded agents in California use the same contract. Also, all agent contracts in California must be approved by the Division of Labor Standards and Enforcement (DLSE). If an agent is not using an approved contract, that contract cannot be enforced and can be voided by the performer.
Also, if an agent alters the DLSE-approved contract in any way and does not have their new version approved by the DLSE, again it usually can be legally challenged by the performer and determined to be unenforceable. If a performer wants to challenge the legal sufficiency of an agent's contract, that performer would have to file a Petition to Determine Controversy with the Labor Commissioner's Office. If declared void, not only will that performer be able to get out of their contract, they will also be awarded a refund of any fees paid to the agent for the year prior to the filing of the petition.
CAN A PERFORMER HAVE TWO AGENTS?
There is an exclusivity clause in the standard contract that states that the performer must remain exclusive to that agent for up to one year if that agent is indeed booking the performer work. If an agent books a performer at least once every four months, then that performer has to be exclusive to that agent. If the agent is not securing work for their client, then a performer can get out of their contract and switch agencies. Obviously, one scene every four months is certainly not enough work to earn a living on. What to do then?
There is no case law on point, but there is nothing that indicates that a performer cannot secure her own employment. California is a right to work state and case law in regards to non-compete clauses state that restrictions on employment are usually not enforceable in California courts. Therefore, it would make sense that if a performer wants, they could seek out their own scenes. However, that performer may still owe a fee to the agent that is representing with him or her.
However, what if a producer tries to hire a performer directly without the first contact being initiated by the performer? In that case the performer should honor their contract with their agent and request that producer book the scene through her agent. If a producer tries to "book around an agent" and knowingly does so, that can be actionable by the agent. It is something referred to as tortuous interference with a business relation. That can result in a civil lawsuit being filed by the agent against the producer.
In short, if an agent is not finding a performer enough work, he or she can find it on his or her own. However, it is recommended that the performer pay the agent no matter how they find the work. If a producer contacts a performer in order to book a scene directly, that performer should refer the producer to her agent to book the scene.
Producers are regularly charging performers kill fees in case the performer does not perform as required by the producer. Kill fees are a legally confusing situation. If a performer flakes on a shoot, the producer will suffer damages. A kill fee is a contract term between the producer and the performer, not between the agent and the performer.
Kill fees cannot be used by an agent to punish a performer for not performing the scene. Also, a kill fee cannot be charged to a performer unless they understood before accepting the job offer that a kill fee is part of the contract for taking the job. A performer can instruct their agent not to book them for any producers that require kill fees. Also, a performer should request all information pertaining to kill fees prior to accepting any scene and that information should be in writing.
If an agent attempts to charge a performer a kill fee without having the performer accept the kill fee as a term of that employment, the agent would be violating their duty to the performer and that performer could file a Petition to Determine Controversy to have any charged kill fees refunded as well as possibly challenging the underlying contract with the agent. Thus, agents charge a kill fee at their own peril.
In conclusion, it should be noted that an agent works for the performer and should be conducting business in a way that is in the best interest of his client. Often this is forgotten and at times it seems like the talent is working for the agent. Producers need to realize that the contracts used by talent agents are valid and do carry weight in court since they are approved by the state of California.
Lastly, talent, agents and producers should work together in determining how content will be produced and for what rate. No one's interests are served if there is an ongoing dispute regarding the creation of content in the industry.
Michael Fattorosi is the founder and managing partner of Fattorosi & Associates, a full service boutique law firm in Woodland Hills, Calif. Areas of practice include adult entertainment law, music law, business litigation, employment litigation and intellectual property.