What You Really Need To Know About Managers And Talent Agents
Beverly Robin Green is an entertainment attorney at Green & Green in San Francisco and Marin County, California, with over 20 years experience working with artists, managers and agents in the music industry on projects involving music recording, performing, publishing, film, copyrights, trademarks, and the internet. Listed in "Who's Who in Entertainment", Ms. Green taught "The Legal Aspects of the Music Recording Industry" at San Francisco State University and served on the Board of Governors and as Legal Counsel for The San Francisco Chapter of the Recording Academy (the GrammyR organization). The author has represented artists such as the Jefferson Airplane and Starship, The Doobie Brothers, Big Brother & the Holding Company, Joe Louis Walker, Merl Saunders, and Zakir Hussein, and has recently been involved in negotiating music rights for projects involving Destiny's Child, Britney Spears and 'Nsynch.
PUTTING TOGETHER YOUR "TEAM"
This article is intended to give some legal background and practical observations on personal managers and talent agents. Artists often say they would like to put together a professional "team" of a manager, agent and attorney. They ask me where they can find the manager or agent. That is a good goal and a good question. It opens up a lot of other questions about what the artist is really looking for, and what the artist has to offer. The different roles that managers and agents play in the music business are difficult to define. They even vary widely in their own categories and from situation to situation, and this can be confusing. Also, what an artist wants may simply not be available to them at this point in their career, especially with respect to managers and agents, who usually work strictly on a commission basis. Another problem is that many of these people simply do not want to bother working for an artist until the artist has already gotten a record contract or is otherwise already taking off in their career. This creates a "Catch 22" situation for the aspiring artist.
WHO DOES WHAT
The term "manager" usually refers to a "personal manager" whose role can range from being the pal at college who has a van and likes to hang out with the band, helping with anything or everything from getting their gear to gigs to helping select material and resolve internal disputes, to an impersonal, large firm managing the (usually already much more successful) business aspects of the artist. Sometimes the best personal manager may turn out to be the pal who stuck with the band and grew with them, providing truly "personal" management. Sometimes the artist needs hand holding and chauffering, sometimes they are more together and need more business and career related advice and services. Sometimes the artist needs both types or different services at different stages of their career. I often tell artists that choosing a manager is like getting married. That is one reason why it is so important for an artist to negotiate a written contract with their manager that is fair and gives incentive to the manager, but is also flexible enough for the artist to grow. There are also professionals who call themselves "business managers", who are basically CPAs or accounting firms who handle the financial aspects of the (again, usually only successful) artist's careers. The term "agent" usually refers to "talent agents", also known as "booking agents", who should "book" the gigs and tours for the artist. In contrast to a talent agent, anyone can call themselves and act as a "manager", with no license and, as with agents, little or no experience. One thing neither a manager nor agent should do is negotiate contracts, such as recording, publishing and merchandising contracts, for the artist. This is practicing law without a license, dangerous for the artist's career, and a disservice to the artist. The manager, as part of the team, can certainly be helpful in the process, but I would ask the artist if they also want their manager to act as their doctor or dentist, which they may be about as qualified to do. Contracts in the music industry usually involve extremely complex legal issues involving a variety of rights and often have long-term effects on the artist's career. Unlike an attorney, a manager or agent does not have any special education or training and a manager does not have to be licensed. An attorney usually has a J.D., or doctorate degree in law, and must be licensed by a State Bar to practice law. Also, there is a conflict of interest for a manager being paid by commissions on your contract that may make them focus on the advance money, at the expense of what may seem to them the many "details" concerning your royalty calculations, publishing, merchandising, production, creative control, and other long term artist career issues.
WHEN MANAGERS ACT AS TALENT AGENTS
In some states, notably California and New York, talent agents must be licensed as a form of artist's employment agency. There have been pending proposals in the California legislature to regulate personal managers more, but for now the regulation is aimed at so-called managers or talent agents who are in the business of collecting advance fees for photo sessions, talent training classes, and the like (See California AB 884 and 2860, and New York Art and Cultural Affairs Law § 37.07). If a person is acting as a "talent agent" in California, they must obtain a license from the State Labor Commissioner and are subject to state regulation. The regulations include submitting fingerprints and references, having their offices subject to inspection, maintaining a surety bond, trust account and accurate records, and submitting their commission rate and even their form of contract for approval by the Labor Commissioner. It may be tempting for a manager to book gigs, especially if the artist cannot obtain the services of a talent agent, but a manager may want to avoid that temptation. Persons acting as unlicensed talent agents used to be subject to criminal liability, and under current law they still stand the very real risk of having their contract declared illegal and unenforceable, and losing all their commissions. This is true even if the talent agent services were only incidental to other services provided as a manager.
A BRIEF HISTORY OF HOW THE LAW EVOLVED
The reason this strict law developed, especially in California, has to do with the major film and record companies being centered here and the California legislature's historic concern for the welfare of the artists in those industries. California has a specific Talent Agency Act. The original law developed out of the 1913 Private Employment Agencies Law, which included specific regulation of theatrical employment agencies and theatrical contracts. In 1923 that was amended to allow the Labor Commissioner to make rules and regulations, and gave the Labor Commissioner initial jurisdiction to hear and determine all controversies, subject to appeal to the Superior Court on a trial de novo (new trial) basis. Since then, the California Labor Commissioner's office has been heavily involved in the licensing and regulation of talent agencies. In 1937 the Private Employment Law was incorporated into the California Labor Code and in 1943 "Artists' Managers" became a separate category for regulation. In 1959 the "Artists' Managers Act" became its own separate Chapter of the Labor Code. This reflected the growing awareness by the legislature that the business of procuring employment in the entertainment industry, as the industry itself, is different and in many ways more complex than the business of normal employment agencies. The growing confusion over who and what to regulate in the entertainment industry was fueled by the development of the "personal manager" profession, which as the term implies, often finds this kind of manager personally involved in all aspects of the artists' career, including (and not the least important to the artist) the procurement of a record contract. In part to avoid the growing confusion of terms between the "personal managers" and the employment or "talent" agents, the "Artists' Managers Act" evolved into the "Talent Agency Act" in 1978, and the old "Artists' Managers" started being referred to as "Talent Agencies". The legislature was struggling with the distinction between a "talent agency", engaged "in the occupation of procuring, offering, promising or attempting to procure employment or engagements for an artist or artists" and who "may, in addition, counsel or direct artists in the development of their professional careers", and those strictly "personal managers" who may counsel and direct artists and do a lot of other things but who are not supposed to deal with employment, unless they become a licensed "talent agent".
THE "RECORD CONTRACT" COMPROMISE
The California Act originally would have required a separate "personal manager" license but those provisions were deleted before the Act was passed. The issue of the distinction between a talent agent and a personal manager had been avoided but not resolved. But the problem remained that in the music industry, managers, not talent agents, are the part of the team usually involved with the business of helping an artist obtain a record contract. In 1982 two significant amendments were added to the Act, at first on a trial basis, with built in expiration provisions. There was the addition of language which would allow an unlicensed person, such as a personal manager, to "act in conjunction with and at the request of a licensed talent agency" with respect to an employment contract, but the most significant amendment was that "the activities of procuring, offering, or promising to procure recording contracts for an artist or artists shall not of itself subject the person or corporation to regulation and licensing". These amendments were renewed in 1984, expired January 1, 1986, and then finally incorporated into the California Talent Agency Act, retroactive to the date the earlier amendments had expired.
THE CURRENT STATE OF AFFAIRS
Currently, the California Talent Agency Act, Labor Code § 1700.4, defines a "Talent agency" 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, except that the activities of procuring, offering, or promising to procure recording contracts for an artist or artists shall not of itself subject a person or corporation to regulation and licensing under this chapter. Talent agencies may, in addition, counsel or direct artists in the development of their professional careers." "Artists" are defined 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 picture, theatrical, radio, television and other entertainment enterprises."
WHAT TO LOOK FOR IN A MANAGER
On a practical level, in selecting a manager, you need to define what you need the manager for and see if that role fits the person you are considering. A lot of times people say they want a manager to get them gigs (wrong, but often done) or to get them a record deal (in California anyway), but a manager who is unknown and inexperienced is not going to have the knowledge, connections or reputation to be of much help in this regard. As perhaps the most important factor, you need to be able to trust that person and that person should be trustworthy, or you are heading into big trouble. The same goes for talent agents. You do not want to end up on the road without a gig or without getting paid. Talent agents should provide artists with written contracts for gigs and tours, and artists should review these contracts with their attorney and negotiate any necessary changes or riders for special needs, when the situation permits. You need to follow your instincts, but keep in mind that a con artist may be real good at fooling you, at least on first impression, and you have to step back and be objective. Do your own background check. Contact other artists the manager or talent agent may have (or claims to have) worked with, and (not as a plug for attorneys) you really need to consult an experienced and trustworthy attorney with whom you already have a relationship or who is recommended by other artists. Even though attorneys are licensed and regulated by the State Bar, you need to be able to trust your attorney and should do your own checks on attorneys as to trustworthiness and experience in the music business, as with all members of the team you are putting together.