BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: July 8, 2009 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 1319
Author: Krekorian
Version: June 28, 2009
SUBJECT
Talent services.
KEY ISSUE
Should the Legislature prohibit advance-fee talent services and
revise provisions of existing law on fee-related talent
services?
PURPOSE
To revise and recast existing fee-related talent service laws in
order to diminish the frequency of fraud and abuse among
fee-related talent service providers.
ANALYSIS
Existing law provides for the regulation and licensure of talent
agencies, specifically defining talent agency as a person or
corporation who engages in the occupation of procuring,
offering, promising, or attempting to procure employment or
engagements for an artist or artists, including career advice
and development. Talent agencies involved with the music
industry are exempted.
Existing law defines "advance-fee talent services" as someone
who does any of the following services:
a) Procuring or attempting to procure employment or an
engagement as an artist;
b) Procuring or attempting to procure an audition for an
artist;
c) Managing or directing the development of an artist's
career; or
d) Procuring or attempting to procure a talent agent or
talent manager, including an associate, representative or
designee thereof.
Existing law also contains special requirements for individuals
who provide advance-fee talent services, and requires specific
contract language to distinguish advance-fee talent services
from talent agencies.
This bill would repeal in its entirety the Labor Code chapter
that addresses advance-fee talent services, and would:
1) Prohibit a person from owning, acting in the capacity
of, advertising for or soliciting for, or knowingly
referring any person to an "advance-fee talent
representation service" as defined above. This would also
include a person that charges an artist a fee for any other
product or service in order for the artist to obtain, from
or through the person, any of the services listed above.
2) Create four distinct Fee Related Talent Services: talent
counseling, talent listing, talent training, and talent
scout.
a) Define a " talent counseling service " as a person who
is not otherwise any artist's talent manager and who, for
a fee, provides or offers to provide, holds themselves
out as providing, or represents it will make a referral
to another person who will provide an artist with career
counseling, career consulting, vocational guidance,
aptitude testing, career evaluation, or career planning
as an artist.
b) Define a " talent listing service " as a person who,
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for a fee, provides or offers to provide, holds
themselves out as providing, or represents it will make a
referral to another person who will provide an artist
with any of the following:
i) A list of one or more auditions or employment
opportunities;
ii) A list of one or more talent agents or talent
managers, including an associate, representative, or
designee thereof;
iii) A search, or providing the artist with the ability
to perform a self-directed search, of any database for
an audition or employment opportunity, or a database
of talent agents or talent managers, or an associate,
representative, or designee thereof; or
iv) Storage or maintenance of any of the following for
distribution or disclosure to a talent agent, talent
manager, or an associate, representative, or designee
thereof, or to a person represented as offering an
audition or employment opportunity: the artist's name,
photograph, Internet Web site, filmstrip, videotape,
audition tape, demonstration reel, resume, portfolio,
or other reproduction or promotional material of the
artist, or an artist's schedule of availability for an
audition or employment opportunity.
a) Define a " talent training service " as a person who,
for a fee, provides or offers to provide, holds
themselves out as providing, or represents it will make a
referral to another person who will provide an artist
with lessons, coaching, seminars, workshops, or similar
training as an artist.
b)^^^^^Defines a " talent scout " as an individual employed,
appointed, or authorized by a talent service, who
solicits or attempts to solicit an artist for the purpose
of becoming a client of the service.
c)^^^^^Establish a definition for fee-related "talent
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services" as either a "talent counseling service," a
"talent listing service," or a "talent training service."
This bill would also:
1) Exempt from the requirements of this bill the following
organizations:
a) A public educational institution;
b) A nonprofit corporation, as defined;
c) A labor organization;
d) A newspaper, bona fide newsletter, magazine, trade
or professional journal, or other publication of general
circulation, whether in print or on the Internet, that
has as its main purpose the dissemination of news,
reports, trade or professional information; or
e) A public institution.
1) Prohibit a "talent service," its directors, officer,
agents, and employees from engaging in a number of
specified activities, including false advertisement, charge
certain additional fees, and referring an artist to a
service where the directors, officer, agents, and employees
have either a direct or indirect financial interest.
2) Prohibit a "talent training service" and a "talent
counseling service," and its officers, directors, agents,
and employees from operating or having a direct or indirect
financial interest in a talent listing service.
3) Provide that a "talent listing service," and its
officers, directors, agents, and employees shall not do
either of the following:
a) Own, operate, or have a direct or indirect financial
interest in a "talent training service" or a "talent
counseling service"; or
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b) Provide a listing of an audition, job, or employment
opportunity without written permission for the listing.
A talent listing service would have to keep and maintain
a copy of all original listings; the name, business
address, and business telephone number of the person
granting permission to the talent listing service to use
the listing; and the date the permission was granted.
1) Revise requirements related to language and other
provisions for contracts between artists and talent
services.
2) Prohibit a contract for fee-related talent services
from having a term of more than one year and being
automatically renewed, as well as amend procedures related
to the cancellation of contracts and refunds.
3) Revise and expand existing recordkeeping requirements,
including:
a) The name and address of each artist contracting with
the talent service.
b) The amount of the fees paid by or for the artist
during the term of the contract with the talent service.
c) The amount of fees reimbursed and proof they were
not an advance for a third party;
d) The original contract issued between the talent
service and the artist; and
e) Documented proof of certain advertisement claims.
1) Increase a bond requirement for talent services from
$10,000 to $50,000.
2) Provide that a person, including an officer, director
agent, or employee who willfully violates these provisions
is guilty of a misdemeanor.
3) Provide that damages for violations shall be no less
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than three times the amount paid by the artist to the
talent service.
COMMENTS
1. Need for this bill?
According to the Los Angeles City Attorney's Office and the
Better Business Bureau of the Southland, complaints about
acting and modeling scams have doubled every year since 2006,
and are expected to do so again in 2009. During that time,
in Southern California alone, there have been approximately
1,000 complaints and an additional 143,000 inquiries. The
Orange County District Attorney's Office has communicated
similar concerns and their support for this bill.
2. Staff Comments:
The Prohibition of Advance-Fee Talent Services:
This bill would completely prohibit "advance-fee
representation services," and would also prohibit a person
from owning, acting in the capacity of, advertising for or
soliciting for, or knowingly referring a person to any
advance-fee talent representation service. In other words, a
person could not charge fees in exchange for procuring an
agent or manager for an artist, or for referring an artist to
such a service.
Prior to 1999, California law did not regulate persons engaged
in the solicitation of advance-fee payments from an artists
prior to employment being secured. In response to concern that
unscrupulous individuals were posing as talent agents or
talent managers and requesting large payments in exchange for
promises of employment that they could never deliver, the
Legislature enacted AB 884 (Kuehl), Chapter 626, Statutes of
1999.
This bill would recast and revise these provisions of existing
law to prohibit advance-fee talent services, specify distinct
types of fee-related talent services, and expand the
regulations for other fee-related talent services.
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Four Distinct Fee-Related Services and New Prohibitions:
"Fee-related talent services" would be broken up into four
categories: talent counseling, talent listing, talent
training, and talent scout. Each category is distinct, and
with the possible exception of a talent scout, mutually
exclusive. The definition for each class is discussed above.
Existing law contains a list of prohibited acts for
"advance-fee talent services." One significant addition to
existing law is that this bill would prohibit talent training
and counseling services from operating a talent listing
service, and vice versa. Talent listing services would also
be prohibited from listing jobs or auditions unless they have
written permission for each listing.
This bill would generally expand on the existing prohibitions
to include the following acts:
a) Advertising auditions for employment without
maintaining for inspection and copying specified written
information supporting the authenticity of the audition;
b) Advertising successful alumni stories without
maintaining for inspection proof of the same;
c) Charging for auditions or employment;
d) Requiring an artist, as a condition of use of the
service or to obtain preferential treatment, to pay for
creating or providing photos or promotional materials;
e) Charging fees not disclosed in the contract;
f) Referring an artist for auditions or photos to a
place where the service has a financial interest;
g) Requiring an artist, as a condition of the use of
the service or to obtain preferential treatment, to pay
any fee to a place where the service has a financial
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interest;
h) Accepting compensation for referring an artist to a
person charging the artist a fee;
i) Failing to remove information about, or photographs
of, an artist displayed on an Internet Web sites that
talent service has the authority to design or alter; and
j) Falsely or misleadingly advertising logos or
trademarks of, among others, a studio production company,
talent agency, or labor organization.
Additional Requirements for Talent Services:
An additional requirement for talent services involved
advertising and solicitation . Mainly, AB 1319 requires that a
solicitation or advertisement for an artist to perform or
demonstrate any talent for the talent service, or to appear
for an interview, shall clearly and conspicuously state, "This
is not an audition for employment or for obtaining a talent
agent or talent management." Moreover, AB 1319 prohibits
talent service uses success stories without appropriate
documentation.
AB 1319 also increases the necessary bonding requirements from
$10,000 to $50,000 for talent services and requires the bond
to be filed prior to advertising or engaging in business.
This is the same boding requirement found in existing law for
talent agents.
Existing law also provides, whenever a bond is made in lieu of
a deposit, a person asserting the claim against the deposit
shall establish the claim by furnishing evidence to the Labor
Commissioner of a money judgment entered by a court, and
evidence that the person was injured as a result of an
unlawful act by a talent service.
This bill would instead provide that a person asserting a
claim shall establish the claim by furnishing evidence of
either an injury resulting from an unlawful act or omission by
a talent service or of a money judgment entered by the court.
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Thus, a person would not have to furnish evidence of a money
judgment in order to establish a claim on the deposit.
Damages:
Existing law provides that a person who willfully violates
these provisions of law is guilty of a misdemeanor, punishable
by imprisonment or a $10,000 fine or both. Existing law also
provides that the amount awarded for damages may be up to
three times the damages actually incurred, but not less than
the amount paid by the artist to the advance-fee talent
service.
This bill is largely the same, providing that an owner,
officer, director, agent, or employee of a talent service who
willfully violates the law is guilty of a misdemeanor,
punishable by imprisonment or a $10,000 fine or both. This
bill also includes the possibility of treble damages.
3. Talent Competitions and Advance-Fee Talent Services:
The opponents of this measure have raised a concern on the
possibility that the definition of "advance-fee talent
representation service" may be interpreted to cover talent
conventions/competitions, such as those hosted by
International Modeling and Talent Association (IMAT) and the
International Presentation of Performers (iPOP). According to
the Association, acting and modeling schools offer their
students an opportunity to go to these talent
conventions/competitions for a fee, which includes the cost of
transportation, hotel, tickets to the convention, and the cost
of the tickets to the awards banquet.
In looking at the definition of a "fee" on page 3, lines 25
through 38, and page 4, lines 1 through 13, it does not appear
that the services described by the opponents would be
considered a fee. Specifically, on page 3, lines 28 through
38, and page 4, lines 1 through 3, reads:
(2) (A) Reimbursements for out-of-pocket costs
actually incurred by the payee on behalf of the
artist for services rendered or goods provided to the
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artist by an independent third party if all of the
following conditions are met:
(i) The payee has no direct or indirect financial
interest in the third party.
(ii) The payee does not accept any referral fee,
kickback, or other consideration for referring the
artist;
(iii) The services rendered or goods provided for the
out-of-pocket costs are not, and are not represented
to be, a condition for the payee to register or list
the artist with the payee.
Therefore, if the model and talent agencies involved with
these conventions only charge for services rendered, have no
financial interest, receive no fees or kickbacks, aren't
conditional on representation, and are appropriately
documented in the employee's records, such trips would fall
outside of the prohibition on advance-fee talent services.
Moreover, Committee staff notes that there is currently no
language in this bill that prohibits participation in a
competition, as this is different from employment or
auditions.
4. Possible Amendments:
In several places in this bill, most notably page 4, line 20,
the term "talent manager" is referenced:
"Talent counseling service" means a person that is not
otherwise the talent manager of an artist and who, for a
fee from, or on behalf of, an artist, provides or offers
to provide, holds itself out as providing, or represents
it will make a referral to another person who will
provide, an artist with career counseling, career
consulting, vocational guidance, aptitude testing,
career evaluation, or career planning as an artist.
(Emphasis Added)
While the concept of a talent manager exists in current law,
it is not defined in this bill. This could create a
potentially serious loophole, and undermine the purpose of
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reducing fraud and abuse in this area of the law.
Therefore, the Committee may wish to consider the following
amendments:
1. On page 5, between lines 5 and 6, insert the
following:
(h) "Talent manager" means a person that receives no fee,
as defined in this Act, from, or on behalf of an artist,
to manage or direct the development of an artist's
career.
2. On page 5, line 6, strike out (h) and insert (i);
3. On page 5, line 11, strike out (i) and insert (j);
4. On page 5, line 13, strike out (j) and insert (k)
5. Proponent Arguments :
Proponents note that AB 1319 will address a growing trend of
fraud and abuse that has double every year since 2006.
Proponents argue that with the unprecedented popularity of
"American Idol" and other reality television programming, the
false promise of instant stardom has increasingly become a
fertile ground for talent peddlers to scam the public,
victimizing children and young adults in particular. The
proponents argue that this fraud is accomplished through
deceptive newspaper, Internet and radio advertisements and by
phony "talent scouts," that invite individuals to an
"audition" which turns out to be a "bait and switch" attempt
to sell photographs, classes and listing services.
The proponents also note that this bill would require that
each contract contain a clause allowing the artist to request
removal of his/her information and/or photographs from a
talent service's Internet Web site, protecting the rights of
the artist. Proponents contend that talent services should
not be advertising artist success stories unless they can
prove the artists actually utilized their services.
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Finally, the proponents note that the additional bond
requirements will ensure that funds area available if an
individual or family is victimized by a talent service
provider. Proponents argue that it is not difficult to post
a bond, nor it is required to post $50,000 in order to obtain
one. According to the proponents, a talent service would only
be required to pay between 1.5 percent and 5 percent of the
bond amount per year ($500 to $2500), depending on the
service's credit score.
6. Opponent Arguments :
The Association of Talent and Modeling Agencies takes an
opposed unless amended position on AB 1319, arguing that
certain provisions within AB 1319 are unreasonable,
unnecessary, and extremely burdensome to law-abiding talent
and modeling service agencies.
First, the Association is concerned that the definition of
"advance-fee talent representation service" may be interpreted
to cover talent conventions/competitions, such as those hosted
by International Modeling and Talent Association (IMAT) and
the International Presentation of Performers (iPOP).
According to the Association, acting and modeling schools
offer their students an opportunity to go to these talent
conventions/competitions for a fee, which includes the cost of
transportation, hotel, tickets to the convention, and the cost
of the tickets to the awards banquet. The Association is
concerned that if this bill prohibits referring artists to
these conventions, iPOP, IMAT, and other convention hosts will
move to other venues. The Association suggests amending the
bill to permit that advance-fee services be provided to
students already enrolled with a modeling or talent service.
Second, the Association is concerned with the bill's
requirement that a talent service remove information about, or
photographs of, an artist displayed on the talent service's
Internet Web site within 10 days of a request from the artist.
The Association asserts that this would allow an artist to
unilaterally breach a negotiated agreement with an acting or
modeling school where the school offers to train the artist
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for a fee and the right to use their name and likeness as
someone who has attended the school. Further, the Association
is concerned that talent services would not be permitted to
advertise artist success stories unless they have a written
contract for that artist. The Association states that some
talent training services, such as John Robert Powers, were
established at a time when written contracts were either not
issued or maintained and thus do not have actual signed
contracts with many of their pre-1960 artist. The Association
asserts that these talent service providers should not be
precluded from continuing to advertise those artists. The
Association suggests amending the bill to allow for an
exception if the artist and talent training service have a
valid contract where the artist agrees to allow the use
his/her name and likeness by the talent training service.
Third, the Association states that the increased bond
requirement from $10,000 to $50,000 is excessive and
unreasonable. It suggests maintaining the $10,000 bond
requirement for companies with a physical presence in
California, and requiring a $50,000 bond for those companies
who do not have a physical presence in the state.
7. Prior Legislation :
SB 1687 (Murray), Chapter 288, Statutes of 2004 closed a
loophole for those who charging up-front fees for photographs
or "casting kits" while indicating that these services will
lead to employment.
AB 2860 (Kuehl), Chapter 878, Statutes of 2000 corrected a
drafting error to narrow the law to avoid regulating
individuals who served merely as photographers, costume
designers, drama coaches, or in similar occupations but not
engaging in advance-fee talent services.
AB 884 (Kuehl) Chapter 626, Statutes of 1999, which was
discussed above, first created the definition and regulatory
structure for advance-fee talent services.
SUPPORT
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Senate Committee on Labor and Industrial Relations
Los Angles Office of the City Attorney, Rockard J. Delgadillo
(Sponsor)
Orange County District Attorney, Tony Rackauckas
Screen Actors Guild (SAG)
Association of Talent Agents (ATA) -Neutral
OPPOSITION
Association of Talent and Modeling Agencies
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Senate Committee on Labor and Industrial Relations