When I get my new copy of Magic magazine, I turn immediately to Jeff McBride's column, which I always find extremely interesting. This month's issue is no exception. In his column, Mr. McBride discusses what a manager can do for the magician, pointing out in essence what a another professional can do for the professional entertainer.
He's absolutely right, of course. In the spirit of "the lawyer who represents himself has a fool for a client" and "the shoemaker's children go barefoot," the magician who tries to do it all herself should realize not just that she cannot know everything but that she should put certain tasks in the hands of those who really do know better than she how to get certain things done. At the crucial time in her career, she should think about hiring a personal manager, a business manger, and/or an agent, when those people are necessary. Mr. McBride doesn't mention, though, and I'm certain it's from a lack of column space, and not because he doesn't know, that when hiring a talent agent, the magician may have to make certain that her agent may need to be licensed by the state. Not all states require that agents be licensed, but some do. These include the states with some of the biggest concentrations of entertainers and entertainment businesses, California and New York. Tennessee, the home of Nashville and its big entertainment community, does not have a talent agent licensing requirement, however.
Why is asking whether one's agent is licensed or not an important question? Well, in states like California that require agents to be licensed, someone who performs work that an agent ordinarily does but who is not licensed as an agent can run into difficulties in a number of ways. Take for example a contract between a personal manager and an artist (say a magician), in which the personal manager acts not just as a manager but also as someone who "procures employment" on occasion for the magician. The contract may specify that the manager receives a percentage not just for his services as manager but also for his services in procuring that employment. Suppose further that at some point in the future he and the magician have a spat and she decides to fire him as her manager and tells him not only that she won't pay him the manager's fee but that she also won't pay him the agent fee either, because, after all, he isn't a licensed agent. (The following discussion pertains only to the agent fee; the failure to pay the manager percentage is another issue).
For many years this particular situation was unclear under the California Talent Agencies Act, because courts didn't really explain what "procuring employment" meant. In a January 2008 case Marathon Entertainment v. Blasi, decided by the California Supreme Court, things got a little clearer.
Prior to Marathon Entertainment v. Blasi, a client whose personal manager did "procure employment," and who then decided that she didn't want to pay the personal manager a percentage that would correspond to an agent's fee might argue that the personal manager wasn't an agent and that either the contract was completely void or that the "agent" part of the contract was void. But in Marathon Entertainment, the Court ruled that 1) personal managers who act like agents are subject to the Talent Agencies Act and that the Labor Commissioner, the agency in charge of talent agents, has the authority to decide 2) the extent to which a personal manager has "procured employment" and whether that means the manager is subject to the Act; if so the part of the contract may be severable from the rest of the contract (which has to do with the manager's duties as manager). But the Labor Commissioner does not have to sever that part of the contract.
Says the Court in Marathon Entertainment:
We note we are not called on to decide, and do not decide, what precisely constitutes “procurement” under the Act. The Act contains no definition, and the Labor Commissioner has struggled over time to better delineate which actions involve mere general assistance to an artist's career and which stray across the line to illicit procurement. Here, however, the Labor Commissioner concluded Marathon had engaged in various instances of procurement, the trial court concluded there was no material dispute that Marathon had done so, and Marathon has not further challenged that conclusion. We thus take it as a given that Marathon has engaged in one or more acts of procurement and that (as the parties also agree) Marathon has no talent agency license to do so.
The Act applies to: "actors and actresses rendering services on the legitimate stage and in the production of motion pictures, radio artists, musical artists, musical organizations, directors of legitimate stage, motion picture and radio productions, musical directors, writers, cinematographers, composers, lyricists, arrangers, models, and other artists and persons rendering professional services in motion picture, theatrical, radio, television and other entertainment enterprises." (§ 1700.4, subd. (b).)
So, inquiring whether states require agents to be licensed, and whether one's own agent is licensed, may seem like a mundane or nitpicky inquiry, but it can save one a lot of headaches in future.
Update: See Mr. Siegel's interesting comment on this post. BTW, I wasn't advocating or critiquing the court's ruling in Marathon. I was just pointing out why a magician might want to check on the status of her agent. Please don't cast nasturiums at me. Thanks.