Amicus Brief submitted by SAG-AFTRA/DGA/WGA and my Comments

No. 13-55545

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL CONFERENCE OF PERSONAL MANAGERS, INC.

Plaintiff—Appellant,

v.

EDMUND G. BROWN, JR. ET AL, Defendants—Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

THE HONORABLE DEAN D. PREGERSON, JUDGE, PRESIDING

DISTRICT COURT CASE NO. CV 12-09620 DDP (RZX)

Brief of Amici Curiae in Support of Defendants-Appellees by

Screen Actors Guild - American Federation of Television & Radio Artists,

Directors Guild of America, Inc. and Writers Guild of America, West, Inc.

ANTHONY R. SEGALL

ROTHNER, SEGALL & GREENSTONE

510 S. Marengo Avenue

Pasadena, CA 91101

Telephone: (626) 796-7555

Fax: (626) 577-0124 Counsel for Writers Guild of America, West, Inc.

DAVID B. DREYFUS

DIRECTORS GUILD OF AMERICA, INC.

7920 Sunset Boulevard

Los Angeles, CA 90046

Telephone: (310) 289-2012

Counsel for Directors Guild of America, Inc.

DUNCAN W. CRABTREE-IRELAND

DANIELLE S. VAN LIER

SCREEN ACTORS GUILD-

AMERICAN FEDERATION OF

TELEVISION AND RADIO ARTISTS

5757 Wilshire Blvd., 7th Fl.

Los Angeles, CA 90036

Telephone: (323) 549-6627

Facsimile: (323) 549-6624

Counsel for SAG-AFTRA and

Counsel of Record for Amici

Case: 13-55545 12/13/2013 ID: 8901747 DktEntry: 28 Page: 1 of 39

i

TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................... i

TABLE OF AUTHORITIES ................................................................................ ii

CORPORATE DISCLOSURE STATEMENT .................................................... iv

STATEMENT OF COMPLIANCE WITH RULE 29(c)(5) .................................. v

CONSENT OF THE PARTIES ............................................................................ v

INTEREST OF THE AMICI ................................................................................ 1

SUMMARY OF ARGUMENT ............................................................................ 4

ARGUMENT ....................................................................................................... 7

A. Agents and Managers Play Important, but Distinct, Roles in the

Entertainment Industry ................................................................................ 7

1. Agents Hold the Keys to Artists’ Careers Opportunities ......................... 7

2. Managers Counsel and Guide Artists’ Careers ........................................ 9

B. The Talent Agencies Act is a Remedial Law Intended to Protect Artists from

Those Who Could Take Advantage of Them ............................................ 11

1. History of the Talent Agencies Act ........................................................12

2. The California Entertainment Commission Concluded that, for the

Protection of Artists, Anyone Who Procures Employment for Artists

Must Be Licensed ..................................................................................14

3. The Talent Agencies Act Clearly Regulates the Procurement of

Employment ..........................................................................................18

4. The Unions Regulate Their Members’ Agents Under a Robust Set of

Rules that Augment and Supplement the Talent Agencies Act ...............20

5. The Law Regulating Procurement of Artists’ Employment is Clear .......21

C. Personal Managers Take a Calculated Risk When They Engage Without a

License in an Agent’s Licensed Activity ................................................... 22

1. Unlicensed Employment Procurement is Not a New Issue .....................22

2. The Risks Managers Face are Less Severe Post-Marathon ....................24

3. Similar Regulatory and Enforcement Principles Are Used in Other

Professions .............................................................................................26

CONCLUSION .................................................................................................. 30


ii

TABLE OF AUTHORITIES

CASES

Baron v. Los Angeles, 2 Cal.3d 535 (1970) ...........................................................27

Buchwald v. Superior Court, 254 Cal. App. 2d 347 (1967) ............................. 12, 13

Cal. Lab. Code §1700.26 ......................................................................................19

Greenlake Capital v. Bingo Investments, 185 Cal. App. 4th 731 (2010) ................29

Marathon Entertainment Inc. v. Blasi, 42 Cal. 4th 974 (2008) ....................... passim

MKB Management, Inc. v. Melikian, 184 Cal.App.4th 796 (2010) ........................29

Park v. Deftones, 71 Cal. App. 4th 1465 (1999) .............................................. 11, 23

People v. Merchants Protective Corp., 189 Cal. 531 (1922) .................................27

Venturi & Co. v. Pacific Malibu Dev. Corp., 172 Cal. App. 4th 1417 (Cal. Ct. App.

2009) .................................................................................................................29

Waisbren, v. Peppercorn Productions, Inc., 41 Cal. App. 4th 246 (1995) ....... passim

Yoo. v. Robi, 126 Cal. App. 4th 1089 (2005) ..........................................................23

STATUTES

Cal Bus & Prof Code § 6000, et seq. .....................................................................27

Cal. Bus. & Prof. Code § 2052(a) .........................................................................26

Cal. Bus. & Prof. Code §10130 ....................................................................... 27, 28

Cal. Bus. & Prof. Code §10131 .............................................................................28

Cal. Bus. & Prof. Code §6125 ...............................................................................27

Cal. Lab. Code §1700.15 ......................................................................................18

Cal. Lab. Code §1700.21 ......................................................................................19

Cal. Lab. Code §1700.23 ......................................................................................19

Cal. Lab. Code §1700.24 ......................................................................................19

Cal. Lab. Code §1700.26 ......................................................................................19

Cal. Lab. Code §1700.27 ......................................................................................19

Cal. Lab. Code §1700.4 .................................................................................. 13, 18

Cal. Lab. Code §1700.44 ......................................................................................14


iii

Cal. Lab. Code §1700.6 ........................................................................................18

Cal. Lab. Code §1700.7 ........................................................................................18

OTHER AUTHORITIES

Cal. Entertainment Comm’n Rep., May 23,1985, Cal. Doc. E2035 R4 1985 . passim

Devlin, Comment, The Talent Agencies Act: Reconciling the Controversies

Surrounding Lawyers, Managers, and Agents Participating in California's

Entertainment Industry, 28 Pepp. L. Rev. 381 (2001) .................................. 12, 13

Flores, Note, That’s a Wrap! (Or Is It?): The Unanswered Questions of

Severability Under California’s Talent Agencies Act After Marathon

Entertainment, Inc. v. Blasi, 97 GEO. L.J. 1333 (2009) .................................. 8, 10

O’Brien, Comment, Regulation of Attorneys Under California’s Talent Agencies

Act; A Tautological Approach to Protecting Artists, 80 CAL. L. REV. 471 (1992)

.......................................................................................................... 8, 10, 13, 14

Zelenski, Note, Talent Agents, Personal Managers, and Their Conflicts in the New

Hollywood, 76 S. CAL. L. REV. 979 (2003) ................................................ 8, 9, 10

CALIFORNIA LABOR COMMISSIONER CASES

Kesha Rose Sebert pka Ke$ha v. DAS Communications, Ltd., No. TAC 19800 (Cal.

Lab. Comm’n Mar. 27, 2012) ............................................................................26

Plana v. Quinn, No. TAC 15652 (Cal. Lab. Comm’n Feb. 24, 2012 .....................26

Solis v. Blancarte, No. TAC 27089 (Cal. Lab. Comm’n Sep, 30, 2013) ................26

Yoakam v. The Fitzgerald Hartley Co., No. TAC 8774 (Cal. Lab. Comm’n Jan, 11,

2010) .................................................................................................................26


iv

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rules 26.1 and 29(c) of the Federal Rules of Appellate

Procedure, Amici provide the following disclosures of corporate identity:

Amicus Screen Actors Guild-American Federation of Television and Radio

Artists certifies that it is a Delaware non-profit corporation doing business as a

labor organization; it does not offer stock; and it has no parent corporation.

Amicus Directors Guild of America, Inc. certifies that it is a California non-

profit corporation doing business as a labor organization; it does not offer stock;

and it has no parent corporation.

Amicus Writers Guild of America, West, Inc. certifies that it is a California

non-profit corporation doing business as a labor organization; it does not offer

stock; and it has no parent corporation.


v

STATEMENT OF COMPLIANCE WITH RULE 29(c)(5)

Counsel for the parties did not author this brief. The parties have not

contributed money intended to fund preparing or submitting the brief. No person

other than amici curiae, their members, or their counsel contributed money that

was intended to fund preparing or submitting the brief.

CONSENT OF THE PARTIES

In accordance with Ninth Circuit Rule 29-3, Amici have sought the consent

of the parties to file an amicus curiae brief. Counsel for the parties have consented

to the filing of this brief.


1

INTEREST OF THE AMICI

Amicus Screen Actors Guild-American Federation of Television and Radio

Artists (“SAG-AFTRA”) is the nation’s largest labor union representing working

media artists. SAG-AFTRA represents over 165,000 actors, announcers,

broadcasters, journalists, dancers, DJs, news writers, news editors, program hosts,

puppeteers, recording artists, singers, stunt performers, voiceover artists and other

media professionals. In 2012, SAG-AFTRA was formed through the merger of two

labor unions: Screen Actors Guild (“SAG”) and the American Federation of

Television and Radio Artists (“AFTRA”). SAG-AFTRA members are the faces

and voices that entertain and inform America and the world. SAG-AFTRA exists

to secure strong protections for media artists.

Amicus Writers Guild of America, West, Inc. (“WGAW”) is a labor

organization and the collective bargaining representative of approximately 11,000

professional writers in the motion picture, television and new media industries.

The WGAW’s mission is to protect the economic and creative rights of the writers

it represents.

Amicus Directors Guild of America, Inc. (“DGA”) was founded in 1936 to

protect the economic and creative rights of Directors. Over the years, its

membership has expanded to include the entire directorial team, including Unit

Production Managers, Assistant Directors, Associate Directors, Stage Managers,


2

and Production Associates. DGA’s over 15,000 members live and work

throughout the United States and abroad, and are vital contributors to the

production of feature films, television programs, documentaries, news and sports

programs, commercials, and content made for the Internet and other new media.

DGA seeks to protect the legal, economic, and artistic rights of directorial teams,

and advocates for their creative freedom.

Through their internal regulations and agreements with non-profit trade

associations, such as the Association of Talent Agents (“ATA”) and National

Association of Talent Representatives (“NATR”), the Unions extensively regulate

the relationship between their members and agents who represent them. With

limited exceptions, each Union requires that talent agents who represent its

members be franchised by the Union. The Unions’ regulations establish standards

of conduct and include conditions and limitations that augment and supplement

provisions in the Talent Agencies Act (the “Act”). They also create standard form

contracts for talent representation and impose limits or prohibitions on agents’

economic interest in production activities.

While the Unions do not regulate their members’ relationships with personal

managers, SAG-AFTRA recently released a draft “Personal Manager Code of

Ethics and Conduct” (“Managers Code”) and has begun soliciting input from the

manager community. The Managers Code is an effort to recognize the role


3

managers play in the industry and to formalize relationships between SAG-

AFTRA and the managers who represent its members.

The Unions’ ability to protect their members is dependent on strong and

uniform enforcement of laws like the Talent Agencies Act. Only a few states have

substantive regulations to govern the artist-agent relationship. In all other states,

the Unions’ members have only the Union franchises for protection. If unregulated

persons are allowed to perform the same functions as agents, without the same

regulation, this intricate framework will start to decay. California is a leader in

regulations related to the entertainment industry; if its regulations fail, other states

are sure to follow.

Accordingly, the Unions and their members have a fundamental interest in

ensuring these protections are not eroded and have an interest in this litigation.


ricksiegel

Sticky Note

so what works fine for all other states can't work for California? Why aren't they asking other states for regulations?

4

SUMMARY OF ARGUMENT

The entertainment industry is unique in many ways. It attracts diverse

participants – from wide-eyed aspiring actors1 who hope to be the “next big thing”

to unscrupulous individuals who prey upon artists’ hopes and dreams.2 The

industry is founded on creativity and the desire to create art and entertainment but

is supported by financial motives. Sometimes, these elements do not mix properly

and the desire for profit overwhelms any good in the relationship.

Working artists typically rely on a small army of people to support their

careers – an army that varies in size as the artist’s career develops. Agents find

and secure job opportunities and negotiate its terms; personal managers counsel

and guide artists, often advising on which job opportunities to pursue; business

managers assist with financial management; attorneys provide legal services;

publicists promote the artist and guide him in his dealings with the media; and the

applicable Union provides benefits and protections, including minimum standards

for wages and working conditions. Each support function plays a particular role in

1 In 2011 approximately 88% of SAG-AFTRA members earned twenty five

thousand dollars ($25,000) or less from their work under SAG-AFTRA freelance

contracts, while less than two percent (2%) had freelance earnings in excess of two

hundred thousand dollars ($200,000). The earnings figures include all income

under SAG-AFTRA freelance contracts, including residuals.

2 It is not uncommon for actors, in particular, but also some writers, directors

and members of film and television crews, to work long hours and under poor

conditions, for little or no compensation, simply to get a foot in the door in the

hope of building a career.


ricksiegel

Sticky Note

none of this has to do with managers, and in fact it's not uncommon for those entering any profession to work under such conditions.

5

an artist’s career. Some of the role differentiation arises from the individuals’

skills; others are the result of regulatory schemes designed to protect the artist.

The unique nature of the entertainment industry, particularly the

mechanisms by which artists obtain employment and the brief duration common to

most industry jobs, gives those gatekeepers to employment immense power. Few

artists are in a position to scrutinize or challenge those who hold control over their

employment opportunities. For these reasons, and in light of recurring abuses at

artists’ expense, the California Legislature has long recognized the need for

regulation of those who hold such power: the procurers of employment; the agents.

The Talent Agencies Act and the Unions’ franchise systems are critical to

protecting vulnerable individuals in an environment where aspirants will do almost

anything to “make it big.” These protections help balance the power between

artists and their representatives. Although an agent is technically retained by the

artist, most artists are not in a position of power vis a vis their agents. To the

contrary, the agent holds the keys to the actor’s career and is in the position to

come between an artist and his work. Accordingly, agents are strictly regulated.

Agents’ conduct and their relationships with their clients are strictly

regulated by the Talent Agencies Act, which provides that only licensed talent

agents may procure employment on behalf of artists. The Act, and decades of

cases interpreting it, sets forth a functional test for determining who is a talent


ricksiegel

Sticky Note

but it doesn't, that's the point of this suit.

ricksiegel

Sticky Note

generalization that falls apart with specifics

6

agent and, thus, who must be licensed. The test is simple – one who procures

employment for an artist is an agent, irrespective of his title, and he must be

licensed as such. This bright-line functional test is critical to the efficacy of the Act

and to protecting artists.

Functional tests defining the bounds of a regulated profession are not unique

to the Talent Agencies Act. Several other professions, notably law and real estate,

utilize similar conduct-based tests to determine who falls within the licensing

structure’s purview.

Personal managers take a calculated risk when engaging in activities covered

by the Act. Although the consequences can be severe, there is little to no

regulatory oversight of managers’ activities and disputes typically arise only when

the manager-client relationship deteriorates. Even in such cases, the manager’s

unlawful activity can be severed from the rest to allow compensation for the lawful

acts.


ricksiegel

Sticky Note

this is why attorneys need to be supportive of the NCOPM's efforts

7

ARGUMENT

One may envision celebrities when thinking of artists in the entertainment

industry; but the primary beneficiaries of the Act are those who are, or who aspire

to be, working artists. It is these individuals who are most vulnerable to abuses by

their advisers. Most advisers are reputable and act in the artist’s best interest. But

some provide services at rates and under conditions that are unfavorable and unfair

or seek to take advantage of vulnerable artists.

Many advisers provide valuable guidance and counseling services to artists.

This guidance may be especially valuable to those artists who do not understand

the ins-and-outs of the industry and career they have chosen. But that guidance

and counseling must be offered within the boundaries of the law.

A. Agents and Managers Play Important, but Distinct, Roles in the

Entertainment Industry

Agents and managers are two of the most important representatives in an

artist’s career. Agents are the gatekeepers to an artist’s employment, serving as the

middlemen between artists and their potential employers and negotiating the terms

of that employment. Managers counsel and provide guidance on the course of an

artist’s career, including on the selection of other advisers and job opportunities.

1. Agents Hold the Keys to Artists’ Careers Opportunities

The most important role an artist’s agent plays is that of intermediary to

potential employment. Agents are the middlemen between artists and potential


ricksiegel

Sticky Note

so we hire the agent and supervise them but don't get involved in procurement that's irrational

8

employers, responsible for submitting their clients for job opportunities and

negotiating the terms of their employment. Flores, Note, That’s a Wrap! (Or Is

It?): The Unanswered Questions of Severability Under California’s Talent

Agencies Act After Marathon Entertainment, Inc. v. Blasi, 97 GEO. L.J. 1333, 1337

(2009). They solicit film and television engagements and live appearances or

might aid an artist in licensing rights to his or others’ creative works. Id. The

agent’s primary function is to market the artist’s talent and get him the best

possible deal. O’Brien, Comment, Regulation of Attorneys Under California’s

Talent Agencies Act; A Tautological Approach to Protecting Artists, 80 CAL. L.

REV. 471, 478-9 (1992).

Artists are typically employed on individual short-term projects for a variety

of employers rather than establishing long-term relationships with a single

employer. Zelenski, Note, Talent Agents, Personal Managers, and Their Conflicts

in the New Hollywood, 76 S. CAL. L. REV. 979, 981 (2003). Accordingly, agents

work to establish relationships with a multitude of employers, negotiating the best

possible terms each time. Id. “Generally speaking, an agent’s focus is on the deal:

on negotiating numerous short-term, project-specific engagements between buyers

and sellers.” Marathon Entertainment Inc. v. Blasi, 42 Cal. 4th 974, 983 (2008)

(citing, Zelenski, 76 S. CAL. L. REV. at 981).


9

Agents are typically paid a commission on their clients’ gross earnings.

Zelenski, 76 S. CAL. L. REV. at 981. Consequently, an “agent’s livelihood depends

on cultivating valuable connections on both sides of the artistic labor market.”

Marathon, 42 Cal. 4th at 983 (citing, Birdthistle, A Contested Ascendancy:

Problems with Personal Managers Acting as Producers (2000) 20 Loyola L.A. L.

Rev. 493, 502-03). Because agents’ earnings are dependent on their clients’

transitory employment, they have incentive to represent a large number of clients

and to obtain for them as much work as possible. Zelenski, 76 S. CAL. L. REV. at

981. But the nature of this relationship has potential to put the agents’ self-interest

in conflict with their clients’. Id. Accordingly, the relationship between talent

agents and their clients is regulated.

2. Managers Counsel and Guide Artists’ Careers

Personal managers play an important role in an artist’s career. Typically

having fewer clients than an agent, they are often an artist’s trusted adviser,

providing counsel and carefully guiding his career. Managers invest time, and

sometimes money, in the hope their clients will eventually be successful.

Managers traditionally “oversee the artist’s day-to-day activities as well as

develop long-term strategies for the artist’s career growth, counseling in the

selection of job material, other personnel to be employed by the artist, and the

proper vehicles for showcasing or promoting the artist’s talent.” Flores, 97 GEO.


ricksiegel

Sticky Note

nope, that's all camacho did, all that Park did

10

L.J. at 1338. They “work in conjunction with other third-party handlers and advise

[the artist] on career decisions… they [also]…. oversee the deals that have been

brokered by [the artist’s] agents.” Zelenski, 76 S. CAL. L. REV. at 982. “The

essence of their service… is counseling the artist in the development of his/her

professional career” and their fees reflect not only the value of an intangible

service but the greater risk which is assumed by the personal manager in the

eventual artistic success of their clients.” Cal. Entertainment Comm’n Rep., May

23,1985, Cal. Doc. E2035 R4 1985 at p. 9.

As the “personal manager” title indicates, the relationship between an artist

and his manager is often personal as well as professional. Managers may advise on

or manage the artist’s finances or may even lend the artist money in times of need.

O’Brien, 80 CAL. L. REV. at 482. The manager may advise on and serve as a liaison

with the artist’s other representatives. Id. And a manager may serve as an artist’s

confidante or personal advisor, helping to manage personal relationships and other

aspects of an artist’s life. Id. In essence, the personal manager helps give the artist

room to be an artist. Id.

The case law recognizes this role. “The primary function of the personal

manager is that of advising, counselling [sic], directing and coordinating the artist

in the development of [his] career.” Waisbren, v. Peppercorn Productions, Inc., 41

Cal. App. 4th 246, 252 (1995) (quoting O’Brien, 80 CAL. L. REV. at 481-482).See


ricksiegel

Sticky Note

and when there is no others interested, who protects their clients interest then?

11

also Marathon, 42 Cal. 4th at 982; Park v. Deftones, 71 Cal. App. 4th 1465, 1469-

70 (1999). “They advise in both business and personal matters, frequently lend

money to young artists, and serve as spokespersons for the artist. Park, 71 Cal.

App. 4th 1470 (citing Waisbren, 41 Cal. App. 4th at 259). Managers “typically

accept a higher risk clientele and offer a much broader range of services, focusing

on advising and counseling each artist with an eye to making the artist as

marketable and attractive to talent buyers as possible….” Marathon, 42 Cal. 4th at

983-84. Lacking regulatory hurdles, and because they have a “greater degree of

involvement and risk, managers typically have a smaller client base and charge

higher commissions than agents [and] may also produce their client’s work and

thus receive compensation in that fashion.” Id.

B. The Talent Agencies Act is a Remedial Law Intended to Protect Artists

from Those Who Could Take Advantage of Them

The Talent Agencies Act is a remedial statute that strictly regulates talent

agents’ conduct and their relationship with their clients. Like many other

professional licensing statutes, it provides a detailed regulatory and licensing

structure and includes various protections against misconduct by talent agents.

Pursuant to the Act, only licensed talent agencies may procure employment on

behalf of artists. The Act, and the cases interpreting it, sets forth a functional test

for determining who is a talent agent and, thus, who must be licensed. The test is


ricksiegel

Sticky Note

creating a better sales product has nothing to do with procurement?

12

simple – if one procures employment for an artist, he is an agent, regardless of

what title he assumes, and must be licensed as such.

The Act strictly regulates talent agents to ensure the welfare of artists. See,

Waisbren, 41 Cal. App. 4th 246. It is a remedial law, designed to correct past

abuses, that was enacted for the protection of artists. Buchwald v. Superior Court,

254 Cal. App. 2d 347, 350-351 (1967). As such, it should be liberally construed to

promote its general intent. Waisbren, 41 Cal. App. 4th at 254, (citing Henning v.

Industrial Welfare Comm., 46 Cal. 3d. 1262 (1988)). The provisions plaintiffs-

appellants point to as vague are broadly crafted to ensure the Acts protections are

directed at regulated actions, not simply job titles.

1. History of the Talent Agencies Act

Procurement of artists’ employment has been regulated for nearly a century.

The Private Employment Agencies Law of 1913 included the first regulations

aimed at protecting artists’ from abuses at the hands of their representatives.

Devlin, Comment, The Talent Agencies Act: Reconciling the Controversies

Surrounding Lawyers, Managers, and Agents Participating in California's

Entertainment Industry, 28 Pepp. L. Rev. 381 (2001). These regulations were

incorporated into the California Labor Code when the Artist Managers Law was

enacted in 1937. Id. The “artist manager” was added in 1943 and then, in 1959,


ricksiegel

Highlight

ricksiegel

Sticky Note

except Buchwald, as the reply brief will make clear, is bad law; the court misinterpreted five precedents to make its holding

13

was separated from that Act into its own section. O’Brien, 80 CAL. L. REV. at 493-

94.

The California Legislature repealed certain provisions in 1967 but left the

regulation of artist managers in the Labor Code. Devlin, 28 Pepp. L. Rev. at 387.

From 1943, when first added to the Employment Agencies Act, until 1978 when

the law was renamed the Talent Agencies Act, “artist manager” was defined as:

“[A] person who engages in the occupation of advising,

counseling, or directing artists in the development or

advancement of their careers and who procures, offers,

promises or attempts to procure employment or

engagements…”

Buchwald v. Superior Court, 254 Cal. App. 2d 347, 350 fn.2 (1967) The Act was

renamed the Talent Agencies Act in 1978. O’Brien, 80 CAL. L. REV. at 494. The

term “talent agent,” was, and still is, defined as:

“[a] person or corporation who engages in the occupation

of procuring, offering, promising or attempting to

procure employment engagement for an artist or artists.”

Cal. Lab. Code §1700.4. The definition allows that a talent agent “may, in

addition, counsel or direct artists in the development of their professional careers.”

Cal. Lab. Code §1700.4. While the early definition was broad, the post-1978

definition made clear that the Act’s regulatory focus was on the act of procuring

employment, with recognition that those who procure employment – talent agents


ricksiegel

Sticky Note

where does this clear? You can't just say something to make it so

14

– may also incidentally engage in other activities related to artists’ professional

careers.

The Legislature made several amendments to the Act in 1982 including

creating certain safe harbors. Particularly, the Legislature added a safe-harbor

provision for unlicensed individuals, such as personal managers, to work “in

conjunction with, and at the request of, a duly licensed and franchised talent

agency in the negotiation of an employment contract.” Cal. Lab. Code §1700.44.

At the same time, it created the California Entertainment Commission (the

“Commission”) to study the Act and, if applicable, to suggest changes. O’Brien, 80

CAL. L. REV. at 494-5.

2. The California Entertainment Commission Concluded that, for

the Protection of Artists, Anyone Who Procures Employment for

Artists Must Be Licensed

The California Legislature created the California Entertainment Commission

in 1982 to study the laws and practices of California and other states relating to the

regulation of artists’ agents and representatives. Waisbren, 41 Cal. App. 4th at p.

256. The Commission consisted of the Labor Commissioner, three talent agents,

three personal managers, and three artists, ensuring that all affected parties had a

voice in the process. Cal. Entertainment Comm’n Rep. at pp. 1- 2. The

Commission’s 1985 report formed the basis for the 1986 amendments to the Talent

Agencies Act. Waisbren, 41 Cal. App. 4th at 258.


15

In its report, the Commission addressed six principal issues, two of which

are particularly relevant. Those three issues are:

“1. Under what conditions or circumstances, if any,

should a personal manager or anyone other than a licensed

talent agent be allowed to procure… employment or

engagements… for an artist without being licensed as a

talent agent? …

“5. Should the entire Act be repealed and/or should there

be a separate licensing law for personal managers? …”

Cal. Entertainment Comm’n Rep. at p. 5.

The Commission’s conclusion was clear – the Act regulates procurement of

employment and, to protect artists, anyone who procures employment must be

licensed, regardless of job title. Specifically, the Commission concluded that

“personal managers or anyone not licensed as a talent agent should not, under any

condition or circumstances, be allowed to procure employment for an artist without

being licensed as a talent agent,” other than as already permitted by the Act. Cal.

Entertainment Comm’n Rep. at p 6.

Although its response was clear, “[w]hen, if ever, may a personal manager

or… anyone other than a licensed Talent Agent, procure employment for an artist”

without a license was the “principal, and philosophically the most difficult issue”


ricksiegel

Sticky Note

only they've got the pages all wrong, it's 13, and the only relevant thing is according to Marathon, is the recommendations, and on page 14 they recommended that 1700.44 and on 15, no legislative intent can be found, so this non legislative committee's conclusions are irrelvent, especially since they didn't state there should b a prohibitionaer statute.

16

in the Commission’s meetings. Cal. Entertainment Comm’n Rep. at p. 7.

Recognizing the managers’ contention that sometimes they engage in “limited

activities which could be construed as procuring employment,” activity that is

“only a minor and incidental part of their services to the artists,” the Commission

did attempt to formulate a compromise to allow limited unlicensed procurement

activity. Id. at 9-11. The Commission considered exempting “casual

conversations” regarding an artist or manager involvement in contract negotiations,

as well as exemptions where no fee or commission is charged. Id. at p.10-11.

Nonetheless, the Commission concluded that the prohibitions against

unlicensed procurement must remain total and without exceptions. Id. at p. 11.

After attempting to craft a compromise, the Commission concluded that:

“the prohibitions of the Act over the activities of anyone

procuring employment for an artist without being

licensed as a talent agent must remain, as they are today,

total. Exceptions in the nature of incidental, occasional or

infrequent activities relating in any way to procuring

employment for an artist cannot be permitted: one either

is, or is not, licensed as a talent agent, and, if not so

licensed, one cannot expect to engage, with impunity, in

any activity relating to the service which a talent agent is

licensed to render. There can be no ‘sometimes’ talent

agent, just as there can be no ‘sometimes’ professional in

any other licensed field of endeavor.”

Id. at 11-12.

The Commission also deemed it unnecessary to license personal managers

because the act of procurement is regulated, not the person. It concluded that,


ricksiegel

Sticky Note

the conclusions are contradictary and irrelevant. What matters is the recommendations, that's what the legislature adopted.

17

“[f]or the protection of artists, anyone who procures employment for an artist

should be licensed.” Id. at p. 30. The Commission opined that any licensing

scheme for personal managers would be needlessly duplicative with the Act,

reiterating that “[i]t is not a person who is being licensed…: rather, it is the activity

of procuring employment.” Id. at p. 20.

The Commission took into careful consideration the interests of agents,

managers, and artists, and acknowledged the long-standing tensions between the

roles of agents and managers. It concluded that the Act was clear and meaningful

and that any acts of procurement without a talent agency license, no matter how

“incidental, occasional or infrequent” are prohibited. This view – that a license is

required for procurement activities – was recognized as the intent of the

Legislature and expressly adopted by the Waisbren court, and has remained the

prevailing law to date. Waisbren, 41 Cal. App. 4th at 259. As the court noted,

“[b]y creating the Commission, accepting the Report, and codifying the

Commision’s recommendations in the Act, the Legislature approved the

Commission’s view” that one cannot be permitted to procure employment for an

artist without a license, and that “the Act imposes a total prohibition on the

procurement efforts of unlicensed persons. Id. (citing Cal. Entertainment Comm’n

Rep. at p. 11) (emphasis in original).


ricksiegel

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Waisbren was totally mooted by Marathon

18

This recognition by the Commission, by commentators, and by case law puts

managers on notice of the role they are legally permitted to perform and the lines

they are not permitted to cross.

3. The Talent Agencies Act Clearly Regulates the Procurement of

Employment

Under the Act, anyone who seeks to procure employment for an artist,

irrespective of title, must be licensed as a talent agent. The Act is clear in that

regard,3 as are decades of administrative and judicial decisions interpreting it. The

Talent Agencies Act provides a comprehensive regulatory scheme for the licensing

of talent agents.4 Pursuant to the Act, in order to obtain a talent agency license, the

agent must submit a detailed application plus fingerprints and an affidavit of good

moral character. Cal. Lab. Code §1700.6. The agent must also obtain and submit a

surety bond (or acceptable alternative) in the amount of fifty thousand dollars

($50,000). Cal. Lab. Code §1700.15. The Labor Commissioner has the authority to

investigate a talent agency prior to granting a license. Cal. Lab. Code §1700.7.

3 The Act defines “talent agency” as “a person or corporation who engages in

the occupation of procuring, offering, promising, or attempting to procure

employment or engagements for … artists…” Cal. Lab. Code §1700.4. The Act

defines “artists” to include a range of individuals in the entertainment industry,

including actors, radio artists, directors, writers, and “other artists and persons

rendering professional services” in the entertainment industry. Id. 4 Similarly, each of the Unions has its own regulatory scheme for the

franchising of talent agents. The Unions’ requirements are often parallel to the

Act’s regulations and, in some instances provide for stricter scrutiny of and

additional assurances from the applicant agent.


ricksiegel

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this statute only defines what an agent does, it doesn't prohibit anything

19

The Act provides for oversight of licensed talent agents. Under the Act, an

agency must seek and obtain Labor Commissioner approval of all forms of

contracts to be used in contracting with its clients and must obtain Labor

Commissioner approval prior to transferring any interest in the agency. Cal. Lab.

Code §§1700.23, 1700.30. Additionally, the agency must file its schedule of fees

and must maintain certain records5 that are subject to inspection by the Labor

Commissioner. Cal. Lab. Code §§1700.24, 1700.26, 1700.27).

For the protection of artists, the Act also prescribes certain protections and

penalties. It requires that talent agents maintain a client trust account and that all

funds received and held on behalf of an artist be deposited into that account. Cal.

Lab. Code §1700.25. Any such funds must be paid over to the artist within a

specified time frame and a specific dispute resolution mechanism is codified in the

Act in the event the agent does not comply. Id. The Act also provides a mechanism

whereby the Labor Commissioner can suspend or revoke a license for an agent’s

misconduct. Cal. Lab. Code §1700.21. This critical enforcement mechanism is

notably absent with personal managers.

Another fundamental and crucial protection encompassed within the Act, but

absent among the unlicensed, is the surety bond mandated as a prerequisite to

5 These records include a list of the agent’s clients and records pertaining to

the work procured on behalf of those clients, including the client’s earnings and

fees received by the agent. Cal. Lab. Code §1700.26.


ricksiegel

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something we should have, but it shouldn't be 50K which does no good to anyone, but related to held monies by the representative

20

licensure. The surety bond ensures that artists who suffer monetary loss due to an

agent’s mishandling of client funds will be able to find some redress. The process

of claiming against the bonds is relatively quick and simple and allows the artist to

recover some or all of his mishandled funds.6 If an unlicensed individual

mishandles artists’ funds, the only remedy is litigation – a costly and often slow

alternative with no guarantee of recovery, even if the artist obtains a judgment in

his favor. Many artists do not have the wherewithal to pursue their remedies

through the courts, leaving them twice victimized.

4. The Unions Regulate Their Members’ Agents Under a Robust Set

of Rules that Augment and Supplement the Talent Agencies Act

As a complement to the Act’s licensing and regulatory requirements, the

Unions extensively regulate the relationship between their members and the talent

agents who represent them.7 Chief among these regulations is the requirement that

talent agents who represent their members be franchised. 8 These franchise

6 SAG-AFTRA, for example, assists its members in making claims against

surety bonds in appropriate situations. There have been several instances where

claims have totaled tens of thousands of dollars and at least one recent incident in

which the misappropriated funds amounted to several hundred thousand dollars.

7 SAG, Codified Agency Regs., rule 16(g); AFTRA, Regs. Governing Agents,

rule 12-C; DGA, Agency Agrmt.between Directors Guild of America and

Association of Talent Agents; WGA, Artists’ Manager Basic Agreement of 1976.

8 Although SAG-AFTRA’s membership rules include a prohibition of its

members working with agents who are not franchised, Screen Actors Guild had

stayed enforcement of this rule for those members who are represented by ATA


ricksiegel

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that's ridiculous. What agency isn't holding 50K of clients monies at any one time? and not true, they go to the Labor Commissioner

ricksiegel

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There is nothing in the legislative history of the Act that says artists deserve greater rights than others who may not have the wherewithal to pursue remedies in a court

21

agreements establish standards of conduct for agents and require compliance with

certain conditions, limitations, and protections that augment and supplement the

Act. 9 For example, the Unions’ franchises: authorize certain types of inspections

of prospective agents, including site inspections; require the use of contracts

promulgated or approved by the Union; limit commissions on certain income

streams; and limit or prohibit financial interests that may pose a conflict of interest

with an agent’s clients. Additionally, certain of the Unions may require the agent

post additional surety bonds with the Union.

The Act and the Union franchises include many protections for artists that

unlicensed individuals avoid. Without the protections and remedies incorporated

in the Act and the Union franchises, vulnerable artists may be without a remedy in

instances of malfeasance. Moreover, each of the Unions’ franchise agreements

incorporates an arbitration procedure that either the artist or the agent can institute

when a dispute arises under the franchise.

5. The Law Regulating Procurement of Artists’ Employment is Clear

and/or NATR-member agents pending further action, a policy which SAG-AFTRA

has left in place for work under legacy-SAG agreements. The Basic Contract

between SAG and the ATA and NATR, which governed the formal relationship

between them, expired on or about October 20, 2000 and no amendment or

extension has since been entered into, other than a fifteen (15) month period during

which ATA and/or NATR-member agents maintained the status quo.

9 Each of the Unions requires that a talent agent seeking to represent its

members have a valid license as a prerequisite to becoming franchised.


ricksiegel

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so if manager holds back money, the artist has no recourse? They would ask a court to be made whole

22

A court’s primary role in interpreting a statute is to effectuate the intent of

the legislature.10

The Talent Agencies Act and decades of case law interpreting it

are clear – one who procures employment for an artist is a talent agent and must be

licensed as such. The California Entertainment Commission wrestled with

possible compromises that would allow unlicensed individuals to engage in limited

acts of procurement, ultimately finding that, for the protection of artists, there

could be no compromise and the prohibition must be total. The Legislature adopted

this finding in adopting the Commission’s report. Waisbren, 41 Cal. App. 4th at

258-59. It would not be appropriate for the court to disrupt that careful balance.

C. Personal Managers Take a Calculated Risk When They Engage

Without a License in an Agent’s Licensed Activity

1. Unlicensed Employment Procurement is Not a New Issue

Some personal managers engage in unlawful procurement activity and are,

or reasonably should be, aware of the risks involved in their activity. Plaintiff-

Appellant’s own manager amici represent several high-profile examples. While

some managers believe they should not be subject to the Act, it would be

10

The Legislature’s clear intent has been to strengthen the Act’s ability to protect

performers against those who would seek to take advantage of them. On January

1, 2006, Senate Bill 184 took effect, raising the amount of the surety bond talent

agencies must deposit with the California Labor Commissioner from $10,000 to

$50,000. This sizeable increase in the State’s Talent Agency Bond underlines the

Legislature’s intent to not only support the existing Act, but to strengthen its

umbrella protection over artists in this State.


ricksiegel

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this is a flat out lie.

ricksiegel

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hmmm.... the CA ent "commission was organized in early 1983 (pg 3) and submitted its report in December of 1985. (pg 1) And after studying the Act for three years, the commission found that "no clear legislative intent can be discerned" relevant to whether one needed a license to procure employment for an artist."

ricksiegel

Sticky Note

engage in activities that are completely lawful but have been enforced wrongly as unlawful. There is no law, it's a myth.

23

disingenuous for a talent manager of any experience to claim he is unaware that

procuring employment for his clients subjects him to potential liability.

The Act, its legislative history and decades of case law interpreting it make

clear that procurement of employment by anyone other than a licensed agent is

unlawful. Accordingly, until recently, courts have consistently held that under

which managers engage in unlawful procurement are void ab initio. See, e.g.Yoo.

v. Robi, 126 Cal. App. 4th 1089 (2005) (acts of procurement rendered contract

between manager and singer void despite express recognition that manager was not

an agent); Park, 71 Cal. App. 4th 1465 (personal manager’s unlicensed

procurement of engagements for a band rendered the parties’ contract void);

Waisbren, 41 Cal. App. 4th 246 (incidental or occasional acts of procurement by

manager were sufficient to render the parties’ contract unenforceable).

The calculated risk inherent in unlicensed procurement can be analogized to

risks many drivers take. Many drivers do not abide by posted speed limits,

recognizing that law enforcement does not have the means to stop every driver

who exceeds it. They rationalize that even if caught, the penalties may not be so

severe if they were not exceeding the limit by too much. The driver gauges the

traffic and surroundings, estimating how fast he can go before he risks drawing

attention to his vehicle. Similarly, many unlicensed and uninsured individuals


ricksiegel

Sticky Note

unless they'd actually read the TAA and took it on its face.

ricksiegel

Sticky Note

this is true. And per Marathon, all of these courts were incorrect.

24

drive on a daily basis – whether out of convenience or necessity – trying to avoid

law enforcement attention, knowing they risk a citation or worse.

Just as speeding or unlicensed drivers know that an officer can be waiting

around the next corner, personal managers know that each act of unlicensed

procurement puts them at risk of being caught. Whether done for the client’s

benefit or his own, the manager accepts the inherent risk.

2. The Risks Managers Face are Less Severe Post-Marathon

The landscape for agent-manager disputes changed in 2008 when the

Supreme Court of California held that a manager’s lawful acts can be severed from

those, such as employment procurement, found to be illegal. In Marathon

Entertainment v. Blasi, a management company sued its client for, among other

claims, breach of an oral contract when she terminated the contract and ceased

paying commissions. Marathon, 42 Cal. 4th 974, 981. The actress claimed

Marathon violated the Act by soliciting and procuring employment on her behalf

without a license. Id. The Labor Commissioner voided the contract ab initio and

barred the manager from recovery. Id. After a trial de novo and subsequent appeal,

the Court of Appeal concluded that the Act applied to personal managers but that

the doctrine of severability, as embodied in Civil Code §1599, should apply to the

controversy. Id. at 982 (citing Cal. Civ. Code §1599).


ricksiegel

Sticky Note

except there are clear signs that say how fast you can go and statutes clearly defining what the consequences are if the speeder does get caught. If the TAA had a prohibition statute and a penalty provision, then this analogy would have merit.

25

The California Supreme Court affirmed the lower court’s unanimous holding

that the Act applied to personal managers. The court correctly noted that the Act

“regulates conduct, not labels; it is the act of procuring (or soliciting), not the title

of one’s business, that qualifies one as a talent agency and subjects one to the

Act’s… requirements.” Marathon, 42 Cal. 4th at 986 (citing Cal. Civ. Code

§1700.4, subd. (a)). Echoing the unanimous Court of Appeal, it held that “a

personal manager who solicits or procures employment for his artist-client is

subject to and must abide by the Act.” Id. (citations omitted).

The Court recognized that management contracts could include both legal

and illegal provisions. Noting that California had codified the common law

doctrine that when “a contract has several distinct objects, of which one at least is

lawful, and one at least is unlawful… the contract is void as to the latter and valid

as to the rest.” Marathon, 42 Cal. 4th at 991 (quoting Cal. Civ. Code §1599). The

Court noted that “[i]n deciding whether severance is available… ‘[t]he overarching

inquiry is whether “the interests of justice… would be furthered” ‘by severance.’”

Id. at 996 (quoting “Armendariz v. Foundation Health Psychcare Services, Inc., 24

Cal. 4th 83 at 124). If ‘the illegal provision can be extirpated from the contract by

means of severance or restriction, then such severance and restriction are

appropriate.’” Id. Noting that the “doctrine is equitable and fact specific,” the


ricksiegel

Sticky Note

true. And this case will show that this finding was wrong because it is based upon Buchwald which was bad law, and was done despite the lack of a prohibition or penalty provision relevant to licensing.

26

Court deferred its application to the Labor Commission and the trial courts.

Marathon, 42 Cal. 4th at 998.

In the years since Marathon was decided, the Labor Commissioner has

exercised her discretion to sever unlawful acts. See, e.g. Kesha Rose Sebert pka

Ke$ha v. DAS Communications, Ltd., No. TAC 19800 (Cal. Lab. Comm’n Mar.

27, 2012) (applying the doctrine of severability to reduce a manager’s commission

despite finding that the illegal activities “were substantial and significant”); Plana

v. Quinn, No. TAC 15652 (Cal. Lab. Comm’n Feb. 24, 2012) (applying the

doctrine of severability because the "management services took up the bulk of the

relationship"); Yoakam v. The Fitzgerald Hartley Co., No. TAC 8774 (Cal. Lab.

Comm’n Jan, 11, 2010) (applying the doctrine of severability upon finding that the

procurement was collateral to the main purpose of an agreement and insubstantial).

But see, Solis v. Blancarte, No. TAC 27089 (Cal. Lab. Comm’n Sep, 30, 2013)

(finding no basis for severance where the central purpose of the parties’ agreement

was illegal).

3. Similar Regulatory and Enforcement Principles Are Used in

Other Professions

Laws restricting activities to licensed professionals are not limited to the

entertainment industry. The practice of medicine is restricted to licensed doctors.

Cal. Bus. & Prof. Code § 2052(a) (“[A]ny person who practices or attempts to

practice… any system or mode of treating the sick or afflicted in this state, or who


27

diagnoses, treats, operates for, or prescribes for any ailment… without having … a

valid, unrevoked, or unsuspended certificate… is guilty of a public offense”). Real

estate brokers are similarly licensed. Cal. Bus. & Prof. Code §10130 (“It is

unlawful for any person to engage in the business of, act in the capacity of,

advertise as, or assume to act as a real estate broker or a real estate salesperson

within this state without first obtaining a real estate license…”) And only lawyers

licensed in the state may engage in the practice of law.11

Cal Bus & Prof Code §

6000, et seq.

Notably the State Bar Act does not define “practice of law,” just as the

Talent Agencies Act does not define “procure employment,” deferring to the

common law and common sense. “(T)he Legislature… used the term 'practice law'

without defining it. The conclusion is obvious and inescapable that in so doing it

accepted both the definition already judicially supplied for the term and the

declaration of the Supreme Court… that it had a sufficiently definite meaning to

need no further definition.” Baron v. Los Angeles, 2 Cal.3d 535, 542-43 (1970).

See also, People v. Merchants Protective Corp., 189 Cal. 531, 535 (1922) (quoting

People v. Alfani, 227 N. Y. 334 (1919) (“The legislature is presumed to have used

the words as persons generally would understand them… 'to practice as an attorney

at law' means to do the work as a business which is commonly and usually done by

11

“No person shall practice law in California unless the person is an active

member of the State Bar.” Cal. Bus. & Prof. Code §6125.


ricksiegel

Sticky Note

this is the epitome of why there's a suit. This statute doesn't say doctors diagnose, treat, operate and prescribe and the public and adjudicators must surmise illegality, it clearly states that doing those activities without a valid medical certificate "is guilty of a public offense." The TAA has no such clarity.

ricksiegel

Sticky Note

can one negotiate contracts, one of the major defining activities of an attorney, without a license? How do you know?

28

lawyers in this country.”). As with the Talent Agencies Act, these regulatory acts

use a functional test, rather than one’s job title, to determine who falls within their

purview.

The efficacy of the Talent Agencies Act’s functional test can be seen in

courts’ application of Marathon to other licensed professions. The holding –

allowing the severance of lawful and unlicensed conduct – has been applied to

compensation disputes in other regulated professions, notably real estate.

California's Real Estate Law bears some similarity to the Talent Agencies

Act, particularly in the functional test defining its coverage. It provides: "[i]t is

unlawful for any person to engage in the business, act in the capacity of, advertise

or assume to act as a real estate broker or a real estate salesman within this state

without first obtaining a real estate license ...” Cal. Bus. & Prof. Code §10130. A

real estate broker is: “a person who, for a compensation or in expectation of a

compensation…does or negotiates to do one or more of” five listed acts. Cal. Bus.

& Prof. Code §10131. Like the Talent Agencies Act, the definition is functional,

providing that it is the acts performed rather than the individual’s job title that

subject him to regulation.

In Venturi & Company v. Pacific Malibu Development Corporation, the

parties’ contract required the plaintiff to provide a range of services, some that

require a real estate broker license, which the plaintiff did not possess. Venturi &


ricksiegel

Sticky Note

except the Real Estate Law has statutes that define what only licensees can do, and how violations of the Act can lose their license or be found guilty of a misdemeanor.

29

Co. v. Pacific Malibu Dev. Corp., 172 Cal. App. 4th 1417, 1421 (Cal. Ct. App.

2009). Citing to Marathon, the court recognized that some of the plaintiff’s actions

may have been lawful without a license. Id. at 1423 (citing Marathon, 42 Cal. 4th

at

980-81). Accordingly, it vacated the lower court’s grant of summary judgment for

the defendant. Id. at 1425.

Similarly, in MKB Management, Inc. v. Melikian, a property management

company sued a property owner who failed to compensate it for services under the

parties’ agreement. MKB Management, Inc. v. Melikian, 184 Cal.App.4th 796, 800

(2010). The defendants argued that the company could not recover because it did

not possess a real estate broker license. Id. at 801. After a detailed review of the

Blasi court’s severability analysis, the court determined severance was appropriate

because some of the plaintiff’s acts did not require a license. Id. at 803-05.

In Greenlake Capital v. Bingo Investments, the court once again undertook a

detailed analysis of Marathon, as well as Venturi and MKB Management, to

determine if a financial adviser who was not a licensed real estate broker could

recover when some elements of the parties’ relationship required a license.

Greenlake Capital v. Bingo Investments, 185 Cal. App. 4th 731 (2010). The court

again remanded the case for a determination of whether severability was

appropriate in the complicated factual situation where some acts may have been

lawful without a license. Id. at 743.


30

As illustrated above, the Talent Agencies Act is hardly unique in using a

functional definition to determine who falls within its purview.

Individuals who represent artists can be either managers or agents, but they

cannot be both. Each role has its limitations and its benefits. If one procures

employment, they are considered agents and are therefore subject to the licensing

requirements and other applicable restrictions and obligations found in the Act and

the Unions’ franchises. Alternatively, they can forego the ability to procure

employment and act as a manager, thus avoiding the licensing requirements,

commission limits, and other restrictions and obligations that agents must abide by.

CONCLUSION

Courts have repeatedly upheld the constitutionality of the Talent Agencies

Act. It may be that there are areas in which it can be updated to provide greater

certainty. But the Act, and decades of interpretation of it, is clear that those who

procure employment must be licensed or they risk consequences for their violation.

As the Entertainment Commission clearly stated, “there can be no ‘sometimes’

talent agent, just as there can be no ‘sometimes’ professional in any other licensed

field of endeavor.” Cal. Entertainment Comm’n Rep. at p. 11-12. If one seeks to

procure employment for artists, he is an agent and must be licensed. If Plaintiffs-

Appellants believe that the Act has outlived its usefulness and should be repealed

or amended, their remedy is to seek such changes through the democratic process.


ricksiegel

Sticky Note

hmm.... when?

ricksiegel

Sticky Note

I ask the Amici what could possibly be repealed to make what they claim is unlawful and make it lawful? If the answer is nothing -- and the answer is nothing -- then there is nothing that makes any activity unlawful.

ricksiegel

Sticky Note

and again, what is procuring employment? Does it include creating the sales materials? Hiring and supervising the sales staff? Certainly that is part of the sales process. And this brief ignores perhaps the greatest contribution SAG has repeatedly says managers provide -- representing artists before or after agents are willing to do so. Perhaps thats because if managers were to follow the fantasy that the Amici present in this brief, it would be impossible for a manager to represent and service a client without an agent already in place.

31

For the foregoing reasons and those in the Appellee’s Brief, Amici

respectfully urge this Court to affirm the decision below.

Dated: December 13, 2013 Respectfully submitted,

By: /s/ Duncan W. Crabtree-Ireland


DANIELLE S. VAN LIER

SCREEN ACTORS GUILD-AMERICAN

FEDERATION OF TELEVISION AND RADIO

ARTISTS

Counsel of Record for Amici

ANTHONY R. SEGALL

ROTHNER, SEGALL & GREENSTONE

Counsel for Writers Guild of America, West,

Inc.

DAVID B. DREYFUS

DIRECTORS GUILD OF AMERICA, INC.


CERTIFICATE OF COMPLIANCE

I certify pursuant to Federal Rules of Appellate Procedure 32(a)(7)(C) that the

attached brief is proportionately spaced, has a typeface of 14 points, and contains

6,997 words, excluding those parts of the brief that the Rule exempts from the

word-count limitation, which is less than the 7,000 words permitted by Fed. R.

App. P. 29(d).

Dated: December 13, 2013 Respectfully submitted,

By: /s/ Duncan W. Crabtree-Ireland



CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Brief of Amici

Curiae in Support of Defendants-Appellees by Screen Actors Guild - American

Federation of Television & Radio Artists, Directors Guild of America, Inc. and

Writers Guild of America, West, Inc. with the Clerk of the Court for the United

States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF

system on December 13, 2013.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

/s/ Duncan Crabtree-Ireland

DUNCAN CRABTREE-IRELAND


Documents

Amicus Brief submitted by SAG-AFTRA/DGA/WGA and my Comments