Here’s an article by Lauren Horwitch from Backstage Magazine. The Ol’ Dog has added a few bites!
Calif. Managers Fight to Redefine Role
The Right to (Procure) Work
September 01, 2006
By Lauren Horwitch
Why does an actor need a manager? Performers have been scratching their heads over that question since the occupation of manager was found to be separate from that of agent and written out of California’s Talent Agency Act in 1959. That act set the legal and still-standard definition of a talent agency as “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment… for an artist or artists.” Therefore, talent agents licensed by the state are the only people who can legally submit clients for auditions, get them work, and draw up the contracts. A manager is responsible for advising his or her clients on the overall trajectory of their careers but cannot get them roles. Unlike talent agents, managers based in California are not required to be licensed by the state.
Here’s a thought. Although managers are not currently required to be licensed by the state this does not preclude SAG from asserting its 1981 Supreme Court Mandate “prohibiting union members from using an agent who has not obtained a license from the union!”and applying it to those parties who act as agents, but avoid adhering to labor law by calling themselves personal managers! (Of course, ah, it might be helpful if first, we enforce our SAG Constitution dictate that “Guild members shall deal only with agents who are franchised by the Guild “ It’s time to put agents in that untenable position of choosing between representing SAG talent–or not!”)
Managers are not required to be licensed in New York either, but they can procure work on an incidental basis for signed exclusive clients according to the New York State General Business Law’s definition of “theatrical personal managers” as “individuals, partnerships, or corporations that place talented persons in employment, and all clients are under personal contract with the agency.”
But according to manager Rick Siegel of Marathon Entertainment in Los Angeles and a number of his colleagues, “procuring employment” for clients is exactly what managers do everywhere. “Everyone knows that managers procure; you can’t do your job without procuring,” said Siegel, who is currently embroiled in a three-year-old lawsuit against former client Rosa Blasi over more than 100 acts of procurement, including her role on Lifetime’s syndicated series Strong Medicine. “[The TAA] says that no one without a license can either directly or indirectly procure for an artist. Well, what do you think a manager does?”
Exactly! Simply because procurers of employment for actors identify themselves as managers, instead of what they really are, full-service agents; why should SAG or the state let them off the hook as far as licensing goes. SAG Codified agency Regulations (16 G) defines a Personal Manager as a “person, firm, or corporation whose services are limited to counseling and advising any member of SAG in about and in connection with his professional career as an actor. A personal manger who performs services for a member of SAG shall not be deemed to be an agent unless such services include solicitation of employment in motion pictures for the member” Mr. Siegel, a personal manager, himself acknowledges “Everyone knows that managers procure; you can’t do your job without procuring!” In light of his admission, neither Mr. Siegel, nor his fellow non-franchised managers, should be allowed to handle SAG members without a SAG license
Throughout the past decade, big-name and no-name actors have routinely won lawsuits against former managers for doing just that: procuring them work, often smaller parts that lead to regular roles on TV series. In 1994, Thomas Haden Church won his case against former manager Ross Brown, who was found to have procured the actor a role in a film called Stolen Moments, thus violating the TAA and voiding their manager-client contract. Arsenio Hall won a similar 1992 case against his former managers at X Entertainment, and Sean Hayes triumphed in former manager Steven Vail’s suit in 2001.
This is not the first time Siegel has been sued by a client. Former client Nia Vardalos sued Siegel for procuring work without a talent agency license in 2005. The manager also sued his ex-client Reginald C. Hayes of Girlfriends. Both judgments came down in the actors’ favor. “Once you’re on a show that’s successful, you do it…. It happens on virtually every show,” Siegel added.
California Labor Code (1700.5) stipulates, “No person shall engage in or carry on the occupation of a talent agency without first procuring a license therefore from the Labor Commissioner.”This provision not only protects SAG members, and actors in general, but also protects those who procure work for them. By not only violating labor law, but also eschewing a SAG franchise, it’s apparent that Mr. Siegel and fellow managers not only deny their clients protection, but also forfeited their own protection as well. If Mr. Siegel and mangers want to end these pesky lawsuits they should work toward the licensing of managers for both their and their clients protection.
But now a recent turn in Siegel’s favor could set a precedent managers can use as leverage in such suits and, in the long run, even lead to changing how the California courts use the TAA to regulate managers.
Siegel’s case against Blasi is typical of actors’ suits that Siegel said have cost managers hundreds of thousands in unpaid commissions over the last decade. Blasi hired Siegel as her manager in December 1998. While signed with him, she landed the Strong Medicine part, making her first appearance as Dr. Luisa Delgado on the show in February 2001. Blasi fired Siegel later that year.
For more than two years, during which she did 44 episodes, she paid him a 15 percent commission for his involvement in booking her Medicine role. After those payments stopped, Siegel filed suit against Blasi in February 2003 for unpaid commissions as well as other alleged violations such as breach of contract, false promise, and unfair business practices. Donald Smiley, Siegel’s attorney, also wrote in the suit that Marathon had provided Blasi the down payment on her home and paid her business manager’s salary and her travel expenses during Siegel’s tenure as her manager.
Blasi said the story isn’t so simple. “When I read these things saying that I got Strong Medicine and fired Rick, it’s so not the case. It looks like one thing, but it’s not the reality,” she told Back Stage. “He didn’t get me the Strong Medicine role. It’s hilarious. The [show’s] casting directors, Judith Holstra and Lori Sugar, had cast me in Noriega. It was those casting directors that brought me in. I was reluctant at first because it was a drama, and I had been doing 99 percent comedies, but Judith insisted that I come back.”
Is the Ol’ Dog the only one noticing a bit of irony here? Ms. Blasi’s case is based on Mr. Siegel’s illegally procuring work for her without a license– and she’s claiming he didn’t procure the ‘Strong Medicine’ role for her. On the other hand, Mr. Siegel who could legally collect his fee if he hadn’t procured the job, claims that he did procure it!
Blasi and her attorney, Michael Plonsker of Alschuler Grossman Stein & Kahan, took the case to the California Labor Commission, which ruled in 2005 that Siegel violated the TAA by procuring her the job without an agency license and thus invalidated Siegel and Blasi’s oral contract. Siegel appealed to the California Superior Court, which ruled in Blasi’s favor. He appealed again.
This time, the situation took an unexpected turn. On June 23 the Second District Court of Appeal reversed the Superior Court’s judgment that had been made in Blasi’s favor and remanded the case to the Labor Commission because “Blasi produced no evidence in trial court…linking the procurement of her Strong Medicine employment contract with any illegal activity or violation of the Act by Marathon.” Blasi, however, said she provided the court with at least one file of evidence “literally inches thick of documents, faxes, and emails. It’s overwhelming.” She has since appealed the appellate court’s decision to the state Supreme Court. Siegel has also appealed the appellate court’s decision, arguing that the TAA should not apply to managers at all.
That latest decision bodes well for managers but not for agents and performers, according to the Association of Talent Agents, the American Federation of Television and Radio Artists, and the Screen Actors Guild. Earlier this month the ATA and AFTRA sent amicus letters (statements from parties that are not involved in the suit but that may be directly affected by its outcome) to the Supreme Court, arguing that the appellate court’s ruling should be depublished, which would diminish its value as a legal precedent managers could use in future cases.
The Screen Actors Guild had not filed an amicus letter as of press time; however, the Guild’s general counsel, Duncan Crabtree-Ireland, wrote in an email to Back Stage, “Screen Actors Guild strongly believes that individuals acting as talent managers should not be permitted to procure employment, even incidentally, unless they are working in conjunction with a state licensed talent agent. Rather than seeking civil or criminal penalties against violators, the Guild supports the forfeiture of manager commissions by those who flout the law. Accordingly, the Guild has taken a position strongly supporting the depublication of this erroneous decision, in the event the Supreme Court declines to accept Ms. Blasi’s petition for review.”
Duncan write the letter
Marshaling the Managers
Siegel recently sought the help of his fellow managers. On Aug. 21 at the Laugh Factory in Hollywood, he organized a meeting attended by approximately 50 managers and other industry pros to ask them to write amicus letters on his behalf and sign a petition stating the appellate court’s decision should be published as planned. When Siegel asked how many in the room had been sued by clients for procuring work, about half in attendance raised their hands.
Manager Audrey Caan, who previously worked as an agent at the William Morris Agency, said such suits have become a serious problem. “The sad thing about this is that the more time managers spend dealing with the Talent Agency Act, it’s just time taken away from [their clients]. Not only that, you start loathing and despising these clients because you know it’s premeditated. I have serial people who I’ve taken back three times, and each time they sue me every time they get a series. You seriously lose big bucks,” she told Back Stage.
Here’s a wild and crazy thought, obey the law, and play by the rules and you’ll have more time to service your clients and less time to loath and despise them. But then, I wonder how many clients they’d have if they simply limited themselves to counseling and advising?
Attorney Richard Ormond of Buchalter Nemer, who represents several managers embroiled in suits, agreed. “The problem is that talent has gotten more sophisticated…. The TAA is now used as a get-out-of-jail-free card, and that allows artists to circumvent or skirt their responsibilities in their management contracts,” he said. “You also have a new, younger generation of actors, and they’re getting paid money that they haven’t been paid before…and all of a sudden they’re trying to figure out ways to hold on to more of it.”
Ain’t it a bitch when talent gets more sophisticated. Where’s that proverbial Turnip Truck when you need it?
Siegel, for one, doesn’t have hard feelings for Blasi or the other actors he’s battled in court. “I have always adored Rosa. I think that she’s incredibly talented and incredibly well-meaning, and I don’t blame Rosa for her actions even though they compromise me,” he said. “The antagonist of this story is the state and the courts. They’re the people who are keeping me from my money. If Rosa knew she was obliged to pay me, I believe she would pay me.”
“Ain’t it a Bitch Part Deux:” when those antagonistic courts and laws keep a man from his money. Yes, if Rosa knew she was legally obliged she’d probably pay. But then, on the other hand, if Rosa knew that her obligation to SAG included rejecting non-franchised managers, she most likely would not owe him money in the first place.
“I had every intention to continue with Rick,” Blasi said. “It was a very difficult decision. I’ve had the same agent [John Kelly of Bresler, Kelly & Associates] for 12 years.”
The Agent-Manager Dilemma
Why don’t California managers get agency licenses, which would allow them to procure jobs legally? Because, they say, SAG’s Rule 16(g) restricts the cumulative amount an actor can pay an agent to 10 percent. Therefore, if an actor is already paying an agent 10 percent, he or she cannot also pay an additional agent or manager (who often charges 15 percent), a fact Siegel said is lost on the Supreme Court. Because managers can procure work without having agency licenses in New York, their fee is not restricted by 16(g); a SAG actor in that state must pay his or her agent only 10 percent, but there’s no cap on how much he or she can pay a manager or anyone else.
Ah, let’s see if the Ol’ Dog has got this straight, in NY if you look like an agent, talk like an agent, act like an agent and are a licensed agent you can only collect 10%, but on the other hand if you look like an agent, talk like an agent, act like an agent and are not a licensed agent, you can collect as much of the actors loot as possible! Hmmm, is it just me or is there an inherent flaw in that reasoning. Oh, well, sooner or later, this thing is most likely going to come to violence anyway. Perhaps they can straighten the whole thing out on “Law and Order!”
Another reason managers don’t apply for talent agency licenses is that the TAA prohibits agents from producing their clients’ projects. Managers, however, can make significant money partnering with their clients as producers.
Yeah, think God for that TAA prohibition, or, gosh, agents would be involved in packaging and stuff like thathell, before you knew it, a big agent like ICM would be getting an influx of a hundred million dollars to “expand in non-traditional areas such as film financing!” Naw!
Plonsker’s response to the managers’ complaints is that they should obey the law. “The way for managers to avoid [lawsuits] is to act appropriately,” he said. “There’s always been a bright line as to what managers can do. What Siegel and Marathon are trying to do is change that line that’s been set for years. [They] shouldn’t be able to turn this around and make it look like the actor’s fault.”
A line, by the way, that has not only been “set for years,” but ignored for years.
In Siegel’s opinion, that line isn’t exactly bright in the TAA, and he questions whether the definition of procurement could be applied to tasks managers are legally able to do for their clients, such as preparing headshots and bios, materials used to get actors jobs. “If we can’t procure, what can we do? … The question I would have for Plonsker is: Can I do rsums, can I help my client with their bios or with their black-and-whites? Can I do anything?”
Aaahh, how about this for a response? Yes you can do headshots, and bios, materials used to get actors jobs. And if they want to give you all their money for something, they can do on their own in an afternoon, well, hey, that’s show biz. What you can’t do is circumvent the law by simply calling yourselves mangers! Well, actually you can as long as those who should have done something a long time ago continue to look the other way!
When asked how the appellate court’s decision in his favor could ultimately affect the way talent managers do business, Siegel said managers would continue to do their jobs as they always have. “The only thing it’ll change is that managers will no longer be compromised,” he noted. “It won’t change what [we] do for a living…. It will only give [us] more sleep.”
Well, now there is one teeny weenie thing that might just “change, ” and that’s that there won’t be anymore FRIKKING AGENTS! Once that pesky little procuring thing is finally out of the way, agents might just be musing, “Hmmm, do I want to be an agent who has to be licensed, abide by SAG and Labor Law rules, and restrict myself to 10 percent, or on the other hand, do I want an unrestricted percentage and be able to do whatever the hell I want to do? Hmmm again, that’s a tough one! What the heck, I think I’ll get out of the agent business and become a FRIKKING MANAGER!
As of Monday, Siegel said managers and other supporters have sent 86 amicus letters to the Supreme Court, and he filed the petition with 112 signatures Aug. 23. Smiley mentioned at the Aug. 21 meeting that two actors have also sent letters on Siegel’s behalf.
You think all those managers have conceded in those amicus letters what Mr. Siegel has admitted, “Everyone knows that managers procure; you can’t do your job without procuring?”
Although the case has not been heard again by the Labor Commission, Robert A. Jones, acting state labor commissioner and chief counsel, issued a letter Aug. 22 to the California Supreme Court advocating the appellate court’s ruling be depublished.
Hopefully, he can manage to have that done before both he, and SAG, finally crack down on those who circumvent the rules with impunity.
California Labor Law, 1700.4. (a) “Talent agency” means 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.
Hey, what can I say, everyone knows musicians are always getting screwed!
A.L. Miller SW Editor & Chief
All formatting is SW’s.