Whither Managers (Or...Will Managers Wither)?
The Colonel…a dying breed?A week or so ago, I received an email from a manager named Rick Siegel, who is a principle at a management firm called Marathon Entertainment. He has a message he wants to get out to writers, and he thought I’d be a good place to start.
His message? Managers are in danger of extinction.
Before I begin editorializing, let’s answer the oft-repeated question: what’s the difference between an agent and a manager?
The simple answer is that agents are representatives licensed by the State to procure work for their clients. Managers are representatives who aren’t licensed by the State and can’t procure work.
So what do managers do?
Well, in the strictest sense, they’re supposed to, um, manage, your day to day affairs. Agents get you the job. Managers can deal with your ongoing needs in relation to the job. Agents get you that writing assignment on location, and managers make sure your hotel room is waiting, your schedule is accurate and up to date, etc. Other managers are less hand-holders and more partners. They may produce your work and advise on creative issues.
Of course, there are many managers who don’t operate like that at all. They act as agents. They do procure work and they do negotiate deals.
One of those managers is Rick Siegel.
The problem?
It appears to be illegal.
There’s a statute on the books in California called the Talent Agency Act. It says, among other things, that only licensed talent agents can procure work for clients. They can only charge 10%. They cannot produce or otherwise “own” their clients’ material. They must be bonded and insured.
Oh, and if anyone else tries to do what an agent does without getting a license, then they have a wee bit of a problem.
Their client can file a complaint with the State Labor Commission. If the Commissioner finds that an unlicensed individual has done the job of an agent, then any contract between the unlicensed individual and their client, written or verbal, is considered null and void ab initio. That means the contract isn’t just null from the verdict forward, but it’s considered retroactively null and void, and the unlicensed individual can be compelled to disgorge commissions they received from up to one year prior to the date of the complaint.
What’s this all mean? Well, according to Rick, we’ve got a situation where lots of managers are doing the job of “agent” for their clients, but if their clients decide they don’t feel like forking over big commissions once they get a job, they can tattle to the Labor Commission and get out of paying the bill.
Free lunch.
Rick is right. That is pretty much the way the law is written. Rick is also fighting this. He sued Nia Vardalos over commissions, but as that was settled out of court, I can’t really tell you how it turned out. More interesting is his case against Rosa Blasi, an actress who fired Rick, then went to the Labor Commission and argued that he had been acting illegally as an agent for her. She asked the Commissioner to negate her contract ab initio, and he did.
Rick also lost a parallel lawsuit against Blasi, but he appealed…and here’s where things get interesting.
From what I’ve read about the Blasi case, it appears that the appellate judges ruled that if a manager is found to be illegally acting as an agent, he’s on the hook to fork over commissions on the deals in which he acted illegally, but not on the hook for the commissions on the deals in which he didn’t illegally do the job of “agent.”
The case has headed back to court. I don’t know where it’s going, but I do know this: the WGAw is filing an amicus brief on behalf of Blasi and against Siegel. Rick suggested that I should be against this filing.
I respectfully told him that I was not against it. I’m for it.
The entire point of the Talent Agency Act is that representation of artists needs to be paired with accountability to the law. Just as lawyers can’t argue cases without being admitted to the bar and doctors can’t prescribe medicine without a medical license, talent agents need to be regulated. The reason is simple. There is an enormous potential for abuse.
In that regard, think of managers as “builders” instead of “licensed contractors.”
Some of the abuse comes in the form of punitive commissions. It’s not uncommon for managers to get 15% of their clients’ gross earnings. That’s ridiculous.
Some of the abuse comes in the form of conflict of interest. Many managers produce their clients’ projects (I’ve been one of those clients). At that point, who are they most interested in representing: their client, or the studio paying their producing fee?
Don’t get me wrong. There are decent managers out there. Excellent managers. Honest managers. On the other hand, they are unaccountable to the law…with one exception.
The Talent Agency Act…the very act that Rick believes ought to be amended to exclude “managers” from its provisions (as if anyone and everyone couldn’t just dub themselves “manager” and thus avoid the burden of law). I think that if Rick wants to do the job of an agent, he should just drop this “manager” thing and become an agent. If he doesn’t want to be an agent, that’s fine, but then he shouldn’t expect to flout the law with impunity.
Rick also believes the Talent Agency Act is being enforced unconstitutionally, which I also disagree with, but that’s a whole ‘nother ball of wax.
I grant that there is something disconcerting about a manager having to fork over commissions that were honestly earned because other commissions weren’t honestly earned, but I’d rather the law be tough than understanding.
So, where do I agree with Rick?
He believes that if the current trends continue, managing will no longer be a viable pursuit. The economic risk of providing a service to someone who can get out of paying for it easily and legally is simply too great.
I agree. I think a lot of managers are eventually going to go the way of the dodo. Some will always stay, but the heyday of the manager is probably drawing to a close.
Rick believes this is bad for writers. He thinks double representation is a good thing.
I’m not so sure. I had double representation for a long time. In the end, I don’t think the cost-benefit analysis worked out in my favor. I just have an agent now. That method has worked for writers for decades.
No reason it can’t work for decades more.
If you have a manager or wish to have one, don’t think that I’m discouraging you. I’m not. Do know your rights, though. The deck may be stacked against us in a lot of ways, but this is one part of the business where we really do hold the aces.
“they’re supposed to, um, manage, your day to day affairs. Managers can deal with your ongoing needs in relation to the job. Managers make sure your hotel room is waiting, your schedule is accurate and up to date, etc.”
Wouldn’t a PA be far cheaper and less egotistical?
How hard is it to become licensed? What’s the downside to managers gaining that license and still primarily being a manager, but are still covered for the times that drift into agents work.
I was an agent and a manager.
Being a manager is much better…for both parties.
Agents need to be registered with the Department of Consumer Affairs and they used to have to be franchised wih SAG (no longer). Of course the big difference here is that I mainly represented Actors not Writers. I’m not sure if a Writer necessarily would benefit from having dual representation. But Rick is coming from the standpoint of representing an Actor. And having a manager is invaluable.
I know a whole lot about the Blasi case. The truth is, Blasi just didn’t want to pay her commission. Period. The law was on her side but for many actors just starting out, if a manager didn’t procure work for them, they would never work.
Representing an Actor and representing a Writer is so different, I don’t think they can accurately be compared. I can’t even begin to pontificate as to what would have happened to Al Pacino’s career if he wasn’t managed by Martin Bregman.
“The entire point of the Talent Agency Act is that representation of artists needs to be paired with accountability to the law. Just as lawyers can’t argue cases without being admitted to the bar and doctors can’t prescribe medicine without a medical license, talent agents need to be regulated. The reason is simple. There is an enormous potential for abuse.”
In my experience, the Bar operates more to protect lawyers than it does to protect the public; the Board of Medical Licensure serves physicians’ interests, not those of sick people. So I’m inclined to think that California’s Talent Agency Act mostly benefits Talent Agencies, and if it benefits talent, that purpose is secondary at best.
I’ve never heard anyone complain that talent isn’t pampered enough.
Does New York have a comparable Talent Agency statute?
The laws in New York aren’t as strict as the ones in California.
But they do exist.
Craig, I think managers are crucial, especially for writers. Especially now. As the movie business has gotten leaner, agents are less and less performing as people who build careers. Managers have taken that on. There are a lot of writers who, in between getting their first break and them becoming consistantly “working” writers, would die without managers. For writers who have a slow climb, there are very few agents who are willing to get them work. And it is possible to work enough to have an agent, but not enough to make that agent work.
This is where managers are so important. Managers perform as—well, your agent. They find the work, the agent closes the deal. I wonder how hollywood would adjust if managers became scared of procuring work. Maybe the baby-boutique agencies could fill the void, but i’m not sure it would be a real fix.
Cont’ from above post:
However, I do think your boy Rick was retarded for allowing his situation to play out in court. Basically, managing as i’ve described is a “hustle.” Hence there’s more risk involved. Managers know this. If Rick’s actions call more federal light onto his industry and damage it, it’ll be his (and other managers) fault.
All money ain’t good money. You didn’t get paid? So what. If you don’t have a legal right to get money for you clients, but, that’s how you make your living…stay the fuck out of court.
As much as I would love to just give 10% to an agent instead of 25% to dual right now, this potential news scares the be’jesus out of me. As an established writer with strong credits under your belt, maybe having only an agent works fine for you, but as someone trying to build a career, virtually NO agent will take you on, especially without a manager. I’m just in the process of getting both, and every top-level agent I’ve met with has been far more receptive when they hear I’m also signing with a top-level management company. Sure, it’s partially the Hollywood “appearances” machine, and the more people working in the corner the more likely they’ll earn any commission—but it’s mainly (because they’ve told me flat out) that they know the manager can hold my hand through development a litttle so they can focus on selling. How many agents are going to want to sit down and talk ideas before you start a new spec, for example? Very, very few.
I’m also an actor, and there are far more agents representing actors than writers, so therefore far more agents willing to develop new actors compared to writers, and even there, for many many actors, the manager is the way in. You pay the commission because they know people you don’t. End of story. When you get to the stage where you all know the same people, sure it seems redundant, but when you’re new in town? Us newbies are SOL if this goes down.
To answer Leif Smart’s question - the reason managers don’t want to become agents is so they can become producers on their clients’ projects.
Agents are forbidden from doing so. But, nowadays for actors and writers and directors, managers will glom onto their clients’ projects and command hefty producer fees.
I’ve heard of many actors using the Talent Agency Act to cut out their managers, but I haven’t heard of any pure writers doing it. Anyone done that?
I doubt managers are going anywhere. Too many have become major players. They’re not going to pack it up and go home.
As far as whether they’re beneficial to writers or not, I think that depends on what stage you are in your career.
Managers will get behind baby writers. In fact there’s a whole cottage industry of management co’s that have made breaking n00bs their bread and butter (Energy, FourSight, etc). How many agents take on “babies” as anything more than back-pocket clients? How many agents will even READ a n00b writer? Juniors, yeah. But a) they spend most of their time covering everyone else’s clients and b) don’t have much juice. Hopefully they’ll remember you when they’ve got legs of their own, but that could take a while. A few years even. Whereas a manager will hustle for you from day 1, noob or not.
Legit managers by and large adhere to the 10% rule-of-thumb. The biggest bone of contention is the producer thing. Yeah, it’s a conflict of interest. But on the upside, their fee should be refundable as soon as they get their producer money from the studio.
Managers are also taking on more of a development role. A lot of managers have CE backgrounds. They’ll give extensive notes to whip a script into “ready to shoot” shape. It’s similar to what happened in the music industry; artist development is now commonly left to independent producers, who deliver the label a finished record by an artist ready for MTV. Burden of risk is left to the producers, who get a bigger share of the kitty in exchange for taking on that risk.
For an established writer, I could definitely see agent-only being the way to go. It’s a cleaner, cut-and-dry relationship. And your resume sells you. Your credits sell you. Your B.O. history sells you. Selling an untested product is a lot harder of a job. A baby needs someone willing to put in the work. I’m guessing that the potential of producer fee is precisely why a lot of managers are more willing to put in that work.
Managers are a benefit to a writer trying to establish his career. They are currently the easiest and cheapest way for new talent to get their work read.
Getting an agent to read a script is as difficult as getting a production company to read one.
Agents are supposed to represent writers. They don’t. They represent success. Managers end up taking the role of “agent” because the agents have refused to do so.
The stamp on the cover of a script from a talent agency is used more as an assurance of quality to producers. However, I have read plenty of scripts by well known screenwriters that are just as horrid as those by unknowns.
In all honesty, I am more concerned… and curious about the state of entertainment lawyers. They appear to fulfill the functions of all three roles (agent, manager, and lawyer) and can don the cap of producer with very little hindrance.
My personal experience is different than everyone else’s, I guess, since I haven’t had any easier of a time getting any managers to read my work than I have getting agents to read it. I don’t know how they help build writers’ careers between that writer’s first sale and their becoming consistent sellers if they aren’t willing to read people like me who are currently in that position.
It may be working for you and countless other writers with a track record, but (as others have said) it does not work well at all for those of us with good scripts and no track record. I regularly hear “referral only” or “too many clients” or even “I have too many baby writers right now to take on another” from agents’ assistants. I can get managers to take my call and read my scripts. (Results of which are still to be determined.)
The management system has flaws and sharks and shady characters. The agency system has flaws and sharks and shady characters; with licenses. Agencies act as producers; they just call it “packaging” instead.
The management system may be flawed, but it works for a significant population of new writers. Right now, they’re the only entity out there really working for the new kids on the block. They should not be punished for it because of a loophole that negates a legally-binding business contract at a client’s whim, simply because that client happens to be an “artist”.
The argument that what hurts managers invariably hurts writers doesn’t hold water. Managers don’t help launch unknown writers out of the goodness of their hearts. They do it because there is money in it. It’s just like the drug trade: do away with managers and someone else will step in to take there place.
With that in mind, there’s no question that a little regulation to keep writers from getting screwed is in our interest. But let’s not forget that the reason managers have thrived is because it is so insanely, ridiculously hard to get even a mediocre agent, much less a good one. What would really help would be for all the talented, hardworking managers out there to just bite the bullet and BECOME agents.
So why don’t they? From what little I’ve read, the only truly onerous requirement to become an agent — aside from the code of conduct, which is SUPPOSED to be strict — is the posting of a $10,000 bond. I can certainly see how that might keep some talented, hardworking up-and-comers from getting into the game. If it cost me $10,000 to get my first script read, I would still be in grad school.
So here’s my idea: why not lower the bond amount to $5000, or even $1000? That might encourage some of those aspiring producer/managersa they churn out at UCLA and USC each year to pony up the cash to become agents and start doing their business above board. And maybe it would even force the big 4 to compete for talent in a way that haven’t had to very much of late.
In short, giving managers free reign to screw over aspiring writers is obviously nothing the WGA should be interested in. But any measure that inscreases the supply of — and competition among — agents without seriously undermining the rights of their clients should be welcomed by professional writers and not-yet-professionals (like myself) alike.
Many of those managers were once agents… and will return to being agents if managers can only manage. The ones who were never agents might become agents. So the idea that there will suddenly be this representation shortage is silly.
I have had experience with the manager/producer thing - and it wasn’t a good experience. I have also had experience with a manager who thought he knew how to develop material - and relly didn’t have a clue. And I’ve had experience with managers who couldn’t get a deal if their life depended on it.
I’ve had 19 scripts produced and more sold (2 films coming out next year) and not one of those deals was made by an agent or manager…
But I’m looking for an agent. Anyone know one who will take my credits as a referral?
You’re the man, Bill.
Not to derail the topic:
but I doubt I’d have the wear-with-all to do it solo for more than a single screenplay, let alone 19.
BACK ON TOPIC:
The fact that you have 19 produced screenplays and still can’t get an agent is the problem.
Most managers are acting as agents because agents are acting as production companies. Agents are more concerned with the overall package than the singular talent of an individual, or the quality of the story. They are looking at the big picture, end-game box office and residuals, rather than the simple act of being a facilitating agent to the sale of the screenplay.
In effect, most agents are only representing themselves. Or at least their 10%.
I’m glad to see you all throwing your donkies in Craig’s face…On his own turf no less.
So, are those of you on here talking about having managers who are helping you as young, up-and-coming writers getting any manager-induced sales or otherwise getting paid work through your managers?
I tried the cold-call-unrepped route with next-to-no luck. Trilogy Entertainment (once upon a time) allowed and encouraged unrepped writers to submit material accompanied by a release. Anywhere else, the doors closed politely but firmly.
Once I signed on with my managers, I got meetings and reads at shows and companies that would otherwise not give me the time of day. I got on an “approved” list for TV at a network. I was also able to convince shows to take my calls and my scripts with the magic words “I’m represented by.”
My managers went comedy, I write drama, so I’ve had to start looking again. I’ve had a great managerial experience, and once again, the managers take my calls. I expect I’ll end up with another manager and no agent. I’m comfortable with that, risks and all.
Nope, I haven’t gotten paid, and I’m curious to know of the 50% or so WGA member who are paid, what the manager/agent breakdown happens to be.
We had a manager during a spell when we were considering changing agencies. We paid him 10%. When we moved to UTA, we decided we didn’t need a manager anymore since UTA was doing the job so well, and our manager offered to stay on for only 5%.
So it’s negotiable.
We didn’t keep our manager in the end because we didn’t need one. Two many cooks peforming the same functions…at least, in our case.
And then there’s always the inevitable conflict of interest: “I love this script. Let me attach myself as producer, and I won’t take any commissions.”
If we were less established, I would say that any form of representation and creative support is good.
For more established writers, it’s case-by-case. We know a few writers who really love and believe in their managers.
In terms of management companies, and managers, who have the best reputation?
I suppose I hadn’t considered that managers serve a role as agents for people who can’t get agents…and I don’t mean that in a nasty way.
On the other hand, that should really give you guys pause. Sure, if a bank won’t give you a loan, you can go to a loan shark…but is it a good idea?
I know, I know. Better than nothing.
The one thing I would strongly urge is that none of you pays more than 10% for a manager’s services. It’s uncalled for and, IMO, completely unreasonable.
In an ideal world, I’d be able to sell my product directly to a buyer, without the 10% middleman. We shouldn’t really need the agency industry at all.
Choosing a manager over an agent is more like working for a temp agency. If no one will hire me full-time, do I sit around on the dole with no benefits, or do I hook up with a temp agency, and then meet employers that will want to hire me — once they get to know me without all that annoying risk involved?
If the manager is getting doors opened that aren’t otherwise open to you, then it’s worth it to the writer.
I think about my screenwriting nemesis and how he, with only a manager, has managed to land a couple of assignments I was very much interested in. I couldn’t even get in the door to give my pitch.
“On the other hand, that should really give you guys pause. Sure, if a bank won’t give you a loan, you can go to a loan shark…but is it a good idea?”
If the bank won’t even let you in the door to apply for a loan, a loan shark may be the only choice. But the bank shutting its doors to new customers has nothing to do with the loan-seeker’s creditworthiness.
We like to pretend that aspiring screenwriters are accepted or rejected based solely on their work, but in the vast majority of cases, aspiring writers are rejected before our work is even seen.
By itself, writing a great script won’t get anyone in anybody’s door.
I have two actor friends who now have rather substantial careers in film and television … they both started with managers, who in turn brought them to agencies and picked the best one for them … the manager nurtured their careers, while agent’s looked after their deals once the name was made.
Their manager’s get fifteen percent and the agent gets ten. They both said, “it’s a quarter of what I earn, but I had nothing before I met the manager, so it’s worth it.”
Both have said that the agency didn’t really care, in the beginning, until they started getting up on the big screen. Once that happened, it was easy for the agency.
But the manager was instrumental getting their faces up there, in pitching them constantly and in looking out for them.
I know that’s acting, but it seems to fit the profile of the lit managers I’ve met as well. The idea is that one gets more personal attention from a manager. And an agent.
Not only is it difficult to get an agent to read a script, it’s also extremely difficult to get an agent to sign a writer whose they like unless there is already a deal in place.
So I agree that oftentimes, writing a great script won’t open a door, not unless there’s an actor attached or a deal already in play.
How can a writer get that deal without an agent?
I started out with just a manager. That manager got me an agent at one of the big three. The agent gets me jobs.
I couldn’t have gotten the one without the other. Not because of lack of talent (I hope), but because in my world the acessibility of managers is much easier.
Hell, EVERYONE is a manager in LA. And they’ll even admit it publicly. A lot of agents I know? Not so much.
It’s a strange thing but I understand it.
So now my team works as a sort of a ‘set-up and punch’ situation. Manager sometimes gets the meetings, the agents step in and get the deals from them.
And even, sometimes, vice versa.
The thing people need to remember -and it’s a pain in the ass- is that just being repped doesn’t mean you get to stop thinking about the business side of things.
Ultimately, YOU are the manager of your career and you need to keep it that way. You’re the only one who’s going to be looking out for number one. To everyone else, you’re a product.
Anyway, it helps to have a Tom Hagen to your agent’s Don Corleone.
In my opinion.
Craig:
Weren’t you just with a manager for awhile and then got an agent after Peter left BG?
As far as I can tell, the Blasi case is not that much different to the other talent agency cases over the years, such as Jason Behr vs Marv Dauer in 2001. The courts have just ruled that the contract was severable,
Analysis of the Blasi case here:
http://ivanhoffman.com/manager.html
scroll to bottom for details on severability.
quoted for context: Civil Code section 1599 provides:
Where a contract has several distinct objects, of which one at least is lawful, and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest. The Court summarized the state of the law in this regard. In determining whether to apply the doctrine of severability of contracts, the courts must consider the main objective of the parties' agreement. If the illegality is {Slip Opn. Page 9} collateral to and severable from the main purpose of the contract, then severance is appropriate. (Abramson v. Juniper Networks, Inc. (2004) [citation omitted].) If, however, the taint of illegality so permeates the entire agreement that it cannot be removed by severance or restriction but only by reformation or augmentation, the courts must invalidate the entire agreement. (Id. at p. 660.)</em>But is it likely for a LIT manager to have an agreement that is not permeated by illegality?
I’ve not read the Labor Commissioners findings on the Balsi case, but it seems she couldn’t prove the manager procurred employment related to the actual contested commissions so used a random event to have the entire contract ruled void ab intio, using the principle Craig summarised.
As far as the Labor Commissioner is concerned, sending out specs is considered procuring employment—this is actually due to the omnipotence of the WGA-mandated second step, which is employment, even if the sale is not—as is arranging meetings. How likely is it that a writer would be in Balsi’s predicment of not being able to prove illegality? With scripts, there is a paper trail, but prodco’s don’t usually send messengers to pick up actresses from their manager’s offices for auditions.
Let’s be honest, the only justification for being a manager is freedom to produce (which has the upside of saving the writer commissions). Those managers who never produce have absolutely no damn excuse for not being agents and signatory to the WGA AMBA. NON WHATSOEVER. It is ironic that they can spin “never producing” into “writer friendly”.
Kevin:
Correct. But Peter is no longer my manager. I’m agent-only now.
That’s not true.
Being an Agent and being a Manager are two completely different animals. Yes, it’s true that a lot of managers are former agents but there are some managers that were never agents because an agent’s one and only concern is the deal. Which isn’t necessarily a negative thing—somebody has to keep their eye on the prize. But there are a lot of managers that are passionate and smart who will help guide you on your long term career so when it’s time to make a decision between writing The Texas Chainsaw Massacre: The Middle and a lower paying gig directed by Todd Field, you can make the right choice.
Craig:
So didn’t Peter procure work for you?
Ryan writes…”by itself, writing a great script won’t get anyone in anybody’s door.”
Ryan, I empathize, but every situation is unique. The last two projects our company set up were from completely unknown writers. We read the material, responded to it, helped develop it, then set them up as movies. We’re producers, not managers. But, we definitely played a “managerial” role. We negotiated our deals with the buyers, as did the writers. Managers troll the halls at UCLA, USC, etc. They definitely serve a purpose but, in the end, like mentioned previously, they get 10% cuz they do 10% of the work. It’s not impossible to get read. You just need to create the situations where getting read presents itself. A manager, or an up and coming producer, can do that for you. Sure, a good script may not be good enough, so then you fight to get to talent. Get someone attached. Bill is a great example. He’s put together 19 movies! Never with an agent or manager. It can be done. Just depends on how you wanna go about it.
“You just need to create the situations where getting read presents itself.”
That’s what I was trying to say, though. A person who writes a great script and, for whatever reason, never gets read, isn’t going to get that script sold.
So, if the open avenue to getting read is a manager, then so be it.
I just took Craig’s comparison of managers to loan sharks to be something of a “if you can’t get an agent, maybe it’s because you’re just not good enough to get an agent” and was trying to note that a person can have a great script and no agent would know it until that agents reads that script. And given how many agents are completely closed off to unknowns (or even lesser knowns), the lack of an agent isn’t, in my opinion, necessarily a commentary on the quality of one’s work.
I never said getting read was impossible. I just said it was difficult and, in my experience, it’s no easier to get a manager to read than an agent. Producers have, so far, been much easier to get to for me. But now that I’m in the Guild, I’m in a kind of nether-world where I’m not known enough to get in with most signatory producers (many of whom won’t routinely deal directly with writers and want some sort of representative to deal with) and can no longer work for the non-sigs that are, apparently, a bit easier to get in with.
If I were a manager, though, I think I’d seek out people who have a sale or two under their belts and maybe see if there’s something there. Seems like it might be a tad bit easier to develop the career of someone who already opened the door a crack himself. The whole “I don’t care about your resume, I just want to hear your logline” that I’ve run into doesn’t sound like developing careers. It sounds like an attempt to find something that will sell… which I would think would be procuring work. Something I understand to be illegal in California for managers to do.
Also, if you are, like me, wanting to get into the assignment game rather than constantly coming up with spec after spec after spec, the slavish attention by a manager to the logline of a specific spec rather than to the writing ability itself seems even more counter-productive.
The two movies that my screenwriting nemesis is working on/has worked on were both assignments. He has not, as far as I know, sold a spec yet.
I’m curious about this too…
I’d imagine that it is a lot easier for managers to “solicit” for writers than it is for actors. And vice versa, harder for a writer to negate the contract.
The main difference being that the actor IS the product/service being sold. For a writer, the product is the screenplay. A lit manager represnts the writer, not the screenplay.
A manager, by definition, manages his client’s schedule. Where is the line drawn between managing meetings and soliciting work?
you forgot to give one reason in your post why being a bonded agent and signatory to the Artists’ Managers Basic Agreement is in any way a hindrance to a manager who does not produce (and has no plans to produce in the future). Does either prevent them from spending more time with writers, developing scripts, being passionate, guiding your career, charging more than 10%(oh, wait…).
One good reason for a non-producing manager not to be an agent? They can still behave like agents—but the writer is protected. (As is the manager’s own income.)
sorry i’m 3:54
James,
Just my opinion, but if anything, I’d expect it’s far easier for a writer to negate a management agreement, esp if the writer doesn’t have an agent—as the manager would be sending out their spec scripts.
That’s the sell. The well known management firms (Energy, B/S, Zide, etc) built themseves by putting the screenlay, the spec—the SALE—way ahead of the writer. They were/are notorious for making Xerox machines the “point” reps. Specs, not writers, were their raison d’etre (the bubble has kinda burst now). Of course, there was an upside for writers and there’s no such thing as a free lunch (easy access to managers comes at a price…).
very true. But in the eyes of the Labor Commissioner the WGA guaranteed first rewrite means selling (or attempting to sell) a spec (a property/product) is defato procurement
Labor Commissioner:
“the shopping, or unsuccessful efforts to sell, completed screenplays and scripts to producers and studios in the television and motion picture industries, absent compelling evidence that no future services of the writer are contemplated, establishes an attempt to procure employment within the meaning of 1700.4(a) and consequently is protected activity.” Victoria Strouse vs. Corner of the Sky, Inc. http://www.dir.ca.gov/dlse/TAC/13-00.pdf
Broughcut:
Well, let’s think of this logically. If you’re a manager then it’s possible to actually manage the career of an Akiva Goldsman.
Usually the story goes: The manager hooks up with a young Akiva, they develop a personal and business relationship, places him at a big ole agency, and they stay together for a couple of decades. Hopefully.
Now if that same person was an agent, how in the world could they compete with CAA or ICM? They couldn’t, that’s how. Do you realize what a disastrous monopoly (you know, more than it is now) if everyone was an agent?
So yeah, never working because all of the top agencies in town have all the talent is a bit of a hindrance.
By the way, I’m not sure if being signatory to the Artists’ Managers Basic Agreement has anything to do with the Talent Agency Act. I could be wrong, however.
My point, exactly.
Don’t think he actually has a manager. This doesn’t concern managers who’s role is to “actually manage”, but those managers who are actually agenting and managing at the same time.
Managers operating illegally and outside of the WGA AMBA helps prevent a disastrous monopoly?
If this same person is still that A-lister, why would their manager need to compete with CAA or ICM? They would be busy managing, not agenting. Are you suggesting that management firms are not already in continuous competition with agencies to land the best scripts?
You get why I’m saying managers who wish to gain an income entirely from commission* should bite the bullet and become agents on paper, right? It means there is a surety bond continuously in effect and it brings their wildcat contracts under the WGA AMBA and Rider W (an agreement which has everything to do with the Talent Agency Act as unlicenced talent agents and managers can not be signatory to the AMBA).
As for competition, it’s tecnically possible to sign with two agencies. There is one stiking point, Rider W in its current form limits agents’ commissions to a total of 10% (yeah, okay, 5% is one good reason for a non-producing manager not to be an agent, but they’re good at bending the rules). Maybe Craig has a comment on that because if WGA want managers to be regulated and brought into the fold their commission would need to be properly accomodated.
“But CAA or ICM wouldn’t co-agent”…etc etc… Having to abide by some basic rules isn’t going to make managers who walk and quack like agents under the current status quo any less desirable.
(I’m doubtful many exist but people keep insisting *their manager would never deign to produce… like it’s universally bad for writers.)
Broughcut:
So what are you saying? That managers shouldn’t exist? Or that managers shouldn’t collect commissions from procuring employment?
Thank you.
Unk
I have no problem with managers who manage.
I have a problem with managers who glom onto projects as producers, without actually doing the work of a producer.
I have a problem with managers who glom onto projects as producers, and do the work of producing, but at the expense of their client’s interests (creative or financial).
I have no problems with managers who also are producers without sacrificing their client’s interests.
However, most managers I’ve dealt with (especially individual literary managers) tend to fit in the middle categories.
Catchy headline, but the first word should be Whither.
Arggggh! I can’t believe no one else caught that. The whole point of the title was the whither/wither bit, and I knew that, and I’d typoed it anyway…
ARGHHH.
Fixed.
Craig said:
I can�t believe no one else caught that.
Wouldn’t that be a double negative? :>
Rick Siegel here.
After reading Craig’s post and the various comments, there is a great deal I want to respond to.
First, I am a principal at Marathon, hopefully with principles.
Here’s what I see as the difference between a agent and a manager. The agents are your vice-presidents of sales; managers are the chief executive officers.
A writer could have an agent for screenplays, another for TV movies, another for TV development and staffing.
He could also have a directing agent. Or, if he’s like clients of mine who both wrote and starred in their films (Saving Grace, My Big Fat Greek Wedding, etc), acting and commercial agents as well. Along, like with my comedy clients, personal appearance agents.
The manager works with all of them. Along with working on the contracts with the attorney, the publicity with the publicist, and the finances with the business manager. And just like with other industries, if there’s no publicist or attorney or business manager or particular agent, the manager needs to take over some of those responsibilities.
And while Craig is right that the manager is ultimately responsible for your hotel room and schedule, as many of the comments noted, that had really not be all they do or you’re wasting your cash.
Where Craig is wrong is that there is any statutes saying that managers cannot help you explore job opportunities. Nor does anyone want that, because the most basic rationale that artists take on management is to maximize the quality and quantity of their career opportunities, working hand in hand (like I did with all my clients) with the agents and other artist representatives.
Marathon is asking the Supreme Court to recognize that without any such statutory restrictions, the generations of implicating and the finding managers culpable of TAA violations has been done devoid of any legal foundation.
After devoting much of the last four years to the study of the applicability of the TAA on managers, this is what I’ve learned:
1) The California Constitution demands that those subjected to a legislative Act should be referred to in the Act’s title; the Talent Agencies Act only refers to talent agents.
2) There is a way to avoid the above demand: if the contents of the Act clearly include or refer to a group unmentioned in the Act’s title. The occupation of personal management is not either mentioned or referred to in any of the TAA’s 47 statutes.
3) As per clear California law, without being mentioned in either the title or contents of the Act, the only way to use existing law to shoehorn managers to TAA regulation is if a study of the legislative history shows that in the creation of the TAA, the Legislature clearly intended for managers to be subject to the Act. Just the opposite, the record shows that after first including five statutes that would have demanded managers be licensed, the Legislature, by deleting those provisions, clearly exempted our profession from the Act’s precepts. Not only is this an issue of basic statutory construction— once the legislature has considered and rejected subjecting a group to a series of statutes, no court has the right to later do so.
None of the above facts have been in any way rebuked. So while so many have taken the position, “that is pretty much the way the law is written,” the law is just not written that way. Nor was it the Legislator’s intention to have it enforced that way when they created the TAA. Imagine buying a six-pack of beer and then get arrested for breaking the prohibition statute. And no matter how you tell them that there is no longer any such law, you get penalized for it. That’s exactly what happens to us.
Leif Smart asked how hard is it to get a license. Well, there is no manager license. And because of WGA, DGA, SAG, and AFTRA by-laws, none of you can pay more than 10% in cumulative agency commissions, once we get a talent agency license and become agents, we can no longer share our clients with agents as we do now. At least half of working TV writers and maybe half of working screenwriters have dual representation. That number is much higher for actors, and virtually every musician and comedian have both agents and managers, if they can find willing reps.
And that’s what I want the Guild members to understand — that if Marathon loses, and artists continue to, using Craig’s words, “hold the aces” as to whether managers can get paid, managers will stop being managers. Would you work for ABC if you knew that after you provided the network the benefit of your writing skills that they didn’t have to pay you? Doubt it.
DenMaley noted that the State Bar Act punishes those who argue legal cases without first passing the Bar. True, but the definition of an attorney is anyone who negotiates contracts, and the State goes into great detail explaining why it does not limit those activities to attorneys. Following 100 years of case law: the only time sharing a responsibility is unlawful is if there are statutes specifically prohibiting or punishing those without the proper licensing from doing them. That doesn’t apply with the TAA.
MLBomb calls me retarded. I can argue virtually everything else that others have written, but ML has me stumped.
Garrett’s point about manager’s producing is an interesting one. Producing for the most part is just a credit; that in itself is not a conflict of interest. But where the State should step in is where the client comes to the manager for employment counseling and ends up being an employee. In the 1960’s, attorney general Bobby Kennedy demanded that Lew Wasserman either give up the production entity MCA or the talent agency MCA. He held on to the production entity, the grandchild of the separated MCA talent agency is now known as ICM.
Tom: yes, writers do it. So do musicians and directors. Under the current enforcement, how can you blame them.
RonniePudding follows the Jeff Berg thought process — keep the managers down, they won’t go anywhere. So what if Jennifer Lopez or Kevin Connelly or Faith Ford or Cher or Wheezer or Jewel or Arsenio Hall or Anita Baker or Nicholette Sheridan or Sugar Ray Leonard or the Jefferson Airplane hold back millions.
Ryan Paige asks if managers have ever made script sales for their clients. Well, Ryan, I haven’t. However, I have had my clients continue to have ownership of their scripts until the first day of production on MY BIG FAT GREEK WEDDING, THE BIG TEASE, SAVING GRACE, I’LL BE THERE and THE SPANISH JUDGES. And I can give you a list of managers and projects who’ve either sold the scripts or ensured their clients movies get made.
I just can’t imagine that anyone is hellbent on ending our ability to do that. And by the way, if I was an agent with 100 instead of ten clients, would I have had the same amount of time to dedicate myself to getting all that done? Doubt it.
As for Craig’s calling me a loan shark, trust me, if you prick me, I will bleed. More to the point, ask yourselves why so many people do keep both? And perhaps recognize that for comedians and musicians, only having agents would severely compromise them. No big deal? How many writers got work because of Drew Carey, Tim Allen, Roseanne, Seinfeld, Ray Romano, etc? And if there’s no manager to help them develop — none of the above had agents when they got their first series — would there have been those series? I think I like being compared to Tom Hayden as Anonymous did better.
broughcut: you say that those who never produce have no dame excuse for not being agents. Well, my first career was advertising. And I gave up ad sales for having an ad agency, because I liked being involved in every aspect — the creation of the ad campaign, where the ads would be placed, and selling the clients on my abilities. Same thing here — I prefer to work with the agents than be one. Hope that makes sense.
James: the answer to your question about whether agents can have illegality, the answer is yes. In fact, any one who didn’t want to pay their agent, under enforcement before severance, was to tell the labor commissioner that you went into your agency and didn’t see either the agency’s fee structure or the TAA statutes posted in a conspicuous place. (1700.24 and 1700.28) According to 1700.39 of the TAA, a client cannot get paid directly from the buyer/studio. In other words, packaging is unlawful.
Overall, I appreciate the debate. Now that I’ve seen what’s been written, I hope you don’t mind that I continue to chime in. Best, Rick Siegel
I forgot the most important point. Since it seems that most of you do understand the value of the existence of managers, urge your leadership not to submit a brief to the CA Supreme Court that might just kill our profession off.
Even though I believe every point of law, equity and legislative history is on my side, I have a worry of what I call the Shylock syndrome. There is already a prejudice that managers are bad people — anyone who’s ever watched BEHIND THE MUSIC knows how managers continually rip off their clients. If all of those we do business with tell the court that managers are evil bad-doers who must be controlled, the Court’s desire to protect may overwhelm the facts in front of them.
As many of you know, that’s happened in issues much more important. The argument abour Roe V Wade is that there is no “right to privacy” as utilized to rule in protecting the woman’s right to choose.
Truth is, there are good managers and bad, just like there are good and bad agents; and from what I read, good and bad writers. There are civil remedies outside the Act that exist when a manager steals or breaches their fiduciary duty.
Further, I and most managers would be happy to be regulated. Just don’t want to be punished for not having a license that we are neither required to get nor can get without changing occupations. Best.
“Ryan Paige asks if managers have ever made script sales for their clients. Well, Ryan, I haven’t.”
I didn’t ask if ANY manager had ever made a sale for his/her client. I asked if any of the people here had managers who had made a sale for them.
It was more my wondering if the managers people were talking about who are, apparently, easier to get read by are also ones who are getting work for those clients.
That last anonymous post was me, obviously.
Rick:
Thanks for coming and commenting.
I didn’t intend to call you a loan shark at all, but rather to make a point about the questionable value of extralegal opportunities.
I get that you think these things aren’t extralegal. I’m curious to see how your legal challenges turn out, but as we discussed on the phone, I’m very skeptical that your view of the law will prevail.
I’ll certainly write a follow-up essay once it’s all resolved.
Ryan, yes. Warren Zide, and his offspring, Bender-Spink, became leaders both as managers and then producers with their willingness to read and develop unproduced writers.
And they are not alone. I realize the hard part is finding them, just like the hard part for us is finding the right clients. But I assure you, if you keep writing good work, it will happen. Sooner or later everyone gets their turn at bat.
Rick Siegel said:
And perhaps this is why I tend to be rubbed the wrong by a lot of manager/producers (although as I said before, some actually provide great value as Producers). Someone actually has to do the job of producing a movie. It’s not just a credit.
Maybe on my next film I’ll throw a credit up saying “Director managed by Keith Calder.” Hey, it’s just a credit, right? Or maybe I can say “Written By Keith Calder.” That’s just a credit too, right? It doesn’t matter that someone else is actually doing that job.
Why can’t manager/producers have it one way or the other? You either get the credit for producing the movie (and deal with the extra work and headache of avoiding conflicts of interest), or you just focus on being a manager, and let the producers get the credit for producing the movie.
Well…no.
But aside from that ridiculous comment, whether I’m producing a film or a television show, I almost always deal with the manager first and sometimes only. For the most part, Managers are interested in the talent’s career. Agents are interested in the current deal on the table. And they’re both right. It’s a lovely set of checks and balances and doing away with management is ludicrous.
In New York especially, managers procure work all the time. There’s nothing wrong with that.
“But I assure you, if you keep writing good work, it will happen. Sooner or later everyone gets their turn at bat.”
Of course, at that point, I won’t so much be an “unproduced writer” anymore, barring some sort of strange time travel thing happening.
But I appreciate the buck up.
I did not mean being a producer should ever be allowed as a possessary credit (I rep so-and-so, and therefore I must be attached to the project) or honorary title.
My point was comparative to being a producer/employer. Writers, especially in television, are producers, but that doesn’t mean they write the checks. It is a conflict of interest to be a producer/employer who also represents talent.
Rick:
I’m not sure that view of producing is correct either. Producing involves many functions, only one of which is writing the checks. There’s hiring writers (which television writer/producers do), supervising the schedule (tv writers again), casting (tv writers)…
I think the Producers Guild has some good definitions.
I do agree that producing and managing at the same time can clearly lead to problems.
Why do people get their knickers in a twist over the principle of manager’s producing? How could managers afford to spend more time than agents with writers, for the same 10%, if they didn’t occasionally produce? It’s not (well, shouldn’t be) about the manager’s ego or aspirations… it’s just another way of paying the manager for the work they put in developing scripts prior to the sale.
If they produce, they get a 12K (x2) development fee and the writer doesn’t pay a commission. That’s a good thing, no?
It’s crazy to think managers have an obligation to do more to “earn” that credit by fulfilling the role of producer after the script is set-up—the last think you want is a manager attached to a script who has a reputation of imposing himself upon development after the sale.
A manager producing is not really a conflict of interest.
Business Affairs execs will not negotiate with managers. The writer will need their own lawyer or agent to negotiate their deal, which is entirely separate from the manager’s. If the writer chooses to use the manager’s attorney on the deal, the writer will be asked to sign a conflictof interest waiver and consider any potential problems before agreeing to this.
I think that wanting to earn more than 10% by attaching to produce is a good reason for not becoming an agent, it makes working with writers more rewarding for the manager and gives them an extra incentive to find (and help develop) great scripts (or should that be “writers”).
Rick, aren’t you a…
if so, you are a Talent Agent. If you don’t have a licence you are an unlicensed talent agent who may or may not call himself a lit manager… but still a talent agent (they can’t take that away from you, Rick ;) — not as long as you are successful at procuring your clients work) and therefore subject to the TAA.
Jam tomorrow, jam yesterday, but never ever jam today!
I asked about this earlier on (the WGA shouldn’t be in the position of giving managers excuses), but this looks like a gaping loophole to me:
So… is Rider W really a bar to managers becoming agents?
Some may stop being unlicenced talent agents and more will get their “commission” from buyers in the form of development/producing fees (outside the TAA’s jurisdiction). Those managers who ONLY manage (do they exist?) are not effected in any way shape or form by any TAA case. And, considering how few cases are brought and the 1 year statute of limitations, is the very existence of managers really threatened?
Putting the Rider W issue aside for a moment, as a as a (non-producing) lit manager, how would an agency licence cramp your style?
urgh, where’s the edit button? :)
Artist’s Manager = Artist’s Agent in AMBA-land.
Anyone who thinks a producing manager doesn’t have a conflict of interest has probably never been repped by a producing manager.
I have, and trust me, it’s potentially trouble. The manager’s interest is in the project — and producer’s fee from the studio — and not necessarily what’s best for the writer in the short- or long-term. “Oh, you need to fire my client to get a greenlight? Cool!” Etc.
That said, it can also be a great thing, because a producing manager will kill on behalf of your project. It depends.
Rick, your post was generally thoughtful, but that statement was bizarre. You must know that lit. manager’s production credits aren’t just “credits” — there’s almost always cash attached.
And Craig, in regards to the original topic — certain types of managers will vanish, others will thrive. The newbie writer will always turn to the Foursights, Energys, and Benderspinks of the world, getting an invaluable push in exchange for allowing the manager to be a producer on their work.
But as those writers evolve, and some reach the A-list, most will eventually drop management, unless it’s truly a great working relationship. I don’t think any lit manager can count on holding clients over the long-term; by necessity, they have to be almost as project-focused as agents are.
Think of it like this — in a way, a writer gets hired by (and works for) a producer. A manager gets hired by (and works for) a writer.
Who’s the boss?
Tony Danza.
Thank you, I’m here all week.
Broughcut, l and most every managers would have happily gotten our talent agent’s license if we could still share clients with other agents. But agents don’t share clients with other agents: how do we put the WGA, DGA, SAG and AFTRA guild by-laws aside; they exist and limit all members to 10% cumulative commissions.
Rider W state that the obligation would come after the contract. Are you interested in hiring someone to pay them a full commission after you’ve already gotten the job? You’re unique.
As for managers that only manage, in other words meaning safe from TAA enforcement, there’s no such thing. And where you’re dead wrong is that so few cases are brought. For example, a couple of Desperate Housewives did it; a few LOST souls did it, most of the GIRLFRIENDS cast did it; Rosa wasn’t the only one to do it on STRONG MEDICINE, Jennifer Lopez has utilized it twice, Michael Chiklis may be about to use it for the third time; Thomas Hayden Church, Faith Ford, Wheezer, Jewel, Kelly Ripa, Damon Wayons, Arsenio Hall, Richard Pryor, Elizabeth Taylor, Freddie Prinze Jr, Sean Hayes, Anita Baker, the list is endless. My estimation is that close to $250,000,000 of otherwise-owed commissions has been withheld from my profession.
That may not seem like a big deal to you, but then again it might.
And as for me being a talent agent because I procure… that’s simply not true. Just because one shares the responsibility of another profession doesn’t make them that profession. One can design gardens legally without a license, but they cannot call themselves landscape architects unless they have the proper certification. Same exact responsibilities, only one is licensed. California law states that the only time one cannot share a responsibility with a licensed profession is if there are specific statutes prohibiting or penalizing one for doing that responsibility (representing another person in court, dispensing medicine, signing for another’s tax return).
A business affairs executive is a perfect example (by the way, they absolutely will negotiate with managers; they’ll negotiate with anyone the artist tells them to negotiate with). Most studio and network business affairs execs are not attorneys, yet all their responsibilities are the same as if they were.
Tom, you’re right, I shorthanded my thoughts on producorial credits which may have come off as bizarre. My real argument is with those who are the bosses of their clients. It’s what Brillstein Grey in particular does, (they employ and represent David chase, Bill Maher and Jim Belushi, for example) and what the agencies are fighting to do. At most, there must be specific waivers by the artists before they become clients – so at least they are aware of the pros and cons – or this should be prohibited. Personally, I think the conflict of interest is too great to allow under any circumstance, but if the parties all agree, that’s that with that then. Finally, I doubt I would have fought any harder for my clients or sloughed them off if I were a producer; either way, the project’s success must be the bottom line.
How is it a significant conflict of interest if the writer has a competent and impartial rep (lawyer or agent) overseeing his deal? If the writer doesn’t think this is necessary, then they can’t complain when the manager screws them over. A studio doesn’t exactly need a manager’s consent to fire a writer… Anyone actually have a half decent reason why it’s a conflict of interest?
Who’s the boss? A MANAGER PRODUCING DOES NOT MAKE THEM A PRODUCER. It’s a way around the TAA in the short term and may get them some extra cash if the thing is greenlit (but only if that happens). Studios pay agents fees for new writers all the time: is the paltry development fee any different to a buyer agreeing to scale plus ten percent? Hardly, the manager is just paid directly by the studio rather than indirectly and via the writer.
Of course it does make scripts marginaly more expenive to accquire but this is small change to studios.
Rick, it is completely true. How could the act be any clearer about this? Anyone in California “who engages in the occupation of procuring, offering, promising or attempting to procure employment or engagements for an artist or artists” is a Talent Agent. That’s what the act says. Calling a spade a spade isn’t a loophole. “Lit manager” is a self-anointed title, distinct from business management and traditional hands-off “career” management (we agree few if any lit managers focus exclusively on managing careers, whatever that means), it doesn’t need to be mentioned explicitly in the ATA.
Couldn’t that get them disbarred? You know of cases were Studio BA execs have negotiated writers deals directly with managers, without an agent or lawyer at any point being invoved on the writer’s side to look out for the writer’s best interests?—that is completey illegal and I am sure the exception rather than the norm. BA have their heads screwed on and aren’t going to break the law and jeopardise their jobs, the studio’s money, the whole deal, on a writers (a writers!) say-so.
I think they are allowed to negotiate with managers if the manager has been instructed by the writers legal AGENT to negotiate on the writer’s behalf. Afaik, this is the only way an unlicensed manage can legally procure employment—under the instruction of a licenced agent.
Is anyone in a position to do a strawpole of BA execs and find out how many would negotiate illegaly with managers? Sure, CE’s etc will discuss things with managers, but that is a fundamentally different relationship.
This is a remarkable and extremely positive addmission. Ball’s back in the Craig’s court, and I hope he addresess the Rider W issue at some point.. if you’re going to call out managers at least address the responsibilities of the WGA in all of this. Like I said, though, my understanding of Rider w is that unless the writer’s agent (the ice berg flavour) gives written consent for the manager-come-agent/manger to join the team, the original agent does not have to share commission—and, presumably, the manager/agent is entitled to 10% also.
whither go craig?
Broughcut:
Okay, just to clear up a couple of things.
Conflict of interest occurs on every single level of the entertainment business. One of the biggest perpetrators aren’t managers…it’s the agencies. Packaging is a complete conflict of interest. And who’s best interest is at heart when an agency tells a studio that they’ll never be able to deal with any of their clients again? As a producer I deal with agencies every day and when I want to hire someone, the agency always wants to throw in some other client that I’m not interested in and because the situation got so out of hand, I ended up not even working with the person I originally wanted.
Now that’s a conflict of interest.
“A business affairs executive is a perfect example (by the way, they absolutely will negotiate with managers; they’ll negotiate with anyone the artist tells them to negotiate with).”
No. They’re not lawyers.
It happens almost every single day. Every Single Day.
And it’s not illegal. A contract does not have to be negotiated with an agent or lawyer.
Or procuring work for an artist, per the TAA.
I just want to be clear…Rick is basing much of his analysis on his own view of the legality of the TAA as it is currently enforced. There’s a voluminous amount of case law (which he references) that contradicts his view, and his victory in the Blasi appeal was very narrow and did not in any way contradict the use of the TAA to restrict anyone but talent agents from legally charging artists commissions for procuring work.
How do we bold face here? I’ll try this It is 100% illegal. A manager can not negotiate contracts on behalf of clients. Did that work?
This is true, but it can’t be negotiated with a manager—which is why studios don’t do it (maybe things have changed…I assume not, despite the unsupported (and, frankly wild ) claims posted here). Yes, contracts can be ‘negotiated’ directly with writers, no lawyer or agent required.
This is one of the crucial laws that keeps manager’s “conflict of interest” on par with the rest of the industry. What I am saying is that if the writer is sensible, there’s little reason for the manager’s conflict of interest to rise above the ‘conflicted’ background noise; that it is wrong to assume the relationship between writers and “producing” managers is autmatically tainted by a conflict of interest. We’re talking about managers in this thread, but as it occurs at ‘every single level of the entertainment world’… I’m sure you would agree that managers are being unfairly singled out.
Yes, many BA execs are attorneys.
Broughcut:
This is how you bold:
STUDIOS NEGOTIATE WITH MANAGERS ALL THE TIME
This isn’t the business of accounting. It’s the business of show and a studio will negotiate with whomever the artist tells them to negotiate with. What, do you think a studio questions the qualifications of a person on the other end of the phone?
And here is where you’re confused.
The Talent Agency Act regulates individuals from procuring and accepting a commission from talent. It does not, however, prohibit 3rd parties from negotiating with managers. Because well…that wouldn’t make any sense. As an individual, you can give power of attorney to absolutely anyone of legal age and sound mind. Do you think that if a studio negotiates with a manager that somehow that negates the deal?
I’ll answer for you.
It doesn’t.
If you wrote a screenplay and told a studio to negotiate with your uncle Paulie who works at the fish market…perfectly legal.
No, it just negates the commission. The Talent Agency Act has, in fact, been interpreted and enforced as a law that prevents any who is not a licensed talent agent from charging a commission for the procurement or negotiation of an artist’s employment. Negotiation is considered part and parcel with procurement.
You can argue that it shouldn’t, but that doesn’t change the fact that it is currently considered illegal by the governing authority (The California State Labor Commission).
Rick — thanks for explaining. I see what you meant now.
You’re in an unfortunate situation — it seems you provide a valuable but extralegal service, and you’re unprotected from clients who choose to weasel. I’d hope you could depend on their sense of fairness, but I guess not.
Curious… do clients who cut managers out ever give a cover story for doing so, or do they actually admit that they just don’t want to pay the commission? I know this is Hollywood, but yipes.
Craig,
My analysis of the law has been the culmination of first, two years of trying to create legislative change, and then over four years of defending my legal rights. And with those four years, I can confidently state that while your views of what is written in the TAA is more accepted, it is also wrong.
1) While correct when you say that my appellate court win did not contradict previous case law, you are incorrect in saying that there is a “voluminous amount of case law” that contradicts our view.
Only five TAA cases that have ever been decided by the Court of Appeals. None spoke to the applicability issues that we have raised. And because they ruled for us on severance, our Court considered themselves restrained from ruling on a constitutional issue after finding a ruling for us on statutory grounds.
Bottom line: our arguments have never been ruled upon by any previous court and Blasi’s counsel is not saying that they have been.
2) You write that the TAA prohibits and/or penalizes one for “procuring work for an artist, per the TAA” exists. It does neither: the words prohibit or penalty, nor any synonym thereof, can be found in the statutes.
The current enforcement meshes §1700.5, which states that one must obtain a license before carrying on the occupation of a talent agent; and §1700.4(a), which defines an agent as one who procures and may also direct and counsel.
But we are the first case to ask a Court to decide whether the TAA, without the needed by law prohibitive or penalizing statutes, can still enforce forfeitures for licensing violations.
Further, as our Appellate Court pointed out, long standing law holds that any licensing violations creates issues between the violator and the state, not the violator and the person they did work for. As such, even when there is unlicensed procurement, the representation/client contract should remain in effect.
And that’s not my analysis of the law, Craig, that’s our Court’s analysis.
And as for you, Broughcut, you may be a terrific writer, but your knowledge of how show business works is lacking. During my 16 years in management I have dealt with NBC, Fox, CBS, UPN, Sony, Warner Brothers, Paramount, Universal, HBO, Dreamworks, Imagine, Playtone and a litany of smaller production companies’ business affairs execs. They all knew I was a manager, not an agent. No one ever asked if I were licensed; it was not an issue. There is nothing illegal with negotiating with anyone; even as Kevin Arbounet notes, Uncle Paulie from the fish market.
And as much as I appreciate Kevin’s words, I don’t understand what he meant by writing the TAA “regulates individuals from procuring and accepting a commission from talent.” It has been enforced as such, but it was not written that way.
Now back to the Giants-Saints game.
Rick:
“Accepted” tends to go hand in hand with “correct” when dealing with the law.
The voluminous case law to which I refer is the history with the Labor Commission and State Supreme Court, not the court of appeals.
Your argument about the words “prohibit” or “penalty” are weak, IMO. If a statue says “Only Rick Siegel may sleep with his wife,” I’m fairly certain I’m prohibited from sleeping with your wife, regardless of the lack of the word “prohibit.”
It’s misleading to say that the court said in Blasi that when there’s unlicensed procurement, the contract should remain in effect. That’s true, but didn’t they also say that any commissions resulting from unlicensed procurement should be disgorged? Didn’t they also say that any portion of the contract resulting from unlicensed procurement should be severed?
Correct me if I’m wrong.
The severability thing seems reasonable to me. I read the decision on that Weezer case, for example, and the procurement ended up coming down to the manager setting up a single small club gig (IIRC, it was more like a practice gig before going out on tour) for which they took no commission. And, for that, the entire management contract was voided and the commissions that were paid for what was, apparently, legitimate management work had to be refunded to the band members.
Of course, as far as I know, I have no vote on the appellate courts, so my opinion probably doesn’t count for much.
Craig:
Right.
This is what I was trying to explain to Broughcut. Studios negotiate with managers all the time but for some reason he refused to believe it.
It’s not written that way but yes, that’s how it is enforced.
But then again you misspelled my last name (it’s Arbouet not Arbounet), so you are not dead to me.:)
Merry Christmas everyone!
And remember…I want 10% of everyone’s gifts.
Craig,
You may be of the opinion that the argument about the words ‘prohibit’ or ‘penalty’ is weak, but know the argument it isn’t mine, it’s the holding from the 1961 CA Supreme Court case Reid v. Overland Machine Products. (“The imposition by statute of a penalty implies a prohibition of the act referred to and a contract founded upon such act is void.”)
Nor is it a weak way to use existing cases in my favor: it’s important that those subject to laws must be able to find those laws, otherwise there is a problem with constitutional due process because of their vagueness.
Craig, do you really think someone should be subject to laws that are completely unwritten? That without any verbiage that tells someone that their actions are not prohibited and/or will be subject to penalty or any sort? I cannot imagine that. Craig? Craig? Can you imagine that being fair?
And, no, our appellate court did not decree that, “when there’s unlicensed procurement, the contract should remain in effect” AND “any commissions resulting from unlicensed procurement should be disgorged.” Just the opposite, the Court sent the case back to the Labor Commission with the instructions to see what portions of the contract should be enforced.Tom, to answer your question, I don’t think there’s ever been a client who thought they were ripping off their ex-managers. Their rationalization is that they paid the manager while they were clients, why should they have to pay when they no longer want to have the manager’s help? Course, that’s like not wanting to continuing paying for your mortgage after getting the bank’s help in buying the house. “Hey, I’m already in the home, why do I still have to pay the damn bank?”
And could you or somebody explain the term “extralegal?” If it ain’t unlawful, and it ain’t, then it’s lawful, and should be so enforced.Ryan, thanks for your thoughts on severance. But let’s say Wheezer asked The Firm to get them all their work, which they then did. Should the management firm lose the right to get their 15% which the band then gets to keep?
The 1915 CA Supreme Court case that our Appellate court cited says no. That as long as the efforts involved in the parties’ contract was lawful, (and procuring work is lawful; it is not like agreeing to rob a bank or set fire to a home) those who violate licensing statutes can only be subject to penalties to the State and that their contract would remain unaffected. Besides being established law for almost a century, how is that not fair? And don’t managers have the right to enjoy the same laws as every other Californian?Kevin’s comment, that the law is “not written that way but yes, that’s how it is enforced,” perfectly encapsulates our argument. Laws must be enforced as the Legislators’ wrote them, not as judges have previously ruled. The current enforcement is both incorrect and unconstitutional, it must be changed.
And that’s why the WGA leaders must be urged not to lobby through an amicus brief for the continued mis-enforcement which has compromised my profession for a generation: it is being enforced in a way that the legislature neither wrote nor intended.