BILL ANALYSIS
AB 1319
Page 1
Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 1319 (Krekorian) - As Amended: April 15, 2009
SUBJECT : Advance-Fee Talent Services.
SUMMARY : Recasts and revises provisions of existing law
regulating advance-fee talent services. Specifically, this bill
makes the following substantive changes to the existing
statutory requirements:
1 Establishes a definition for an "advance-fee talent
representation service" and prohibits a person from owning,
acting in the capacity of, advertising for or soliciting for,
or knowingly referring any person to such services.
2)Establishes a definition for fee-related "talent services" as
either a "talent counseling service," a "talent listing
service," or a "talent training service."
3)Defines 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.
4)Defines a "talent listing 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 any of the following:
a) A list of one or more auditions or employment
opportunities.
b) A list of one or more talent agents or talent managers,
including an associate, representative or designee thereof.
c) 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
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or designee thereof.
d) 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.
5)Defines 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.
6)Establishes a number of specified exemptions from the
requirements of this bill for various entities or individuals
that meet certain conditions.
7)Prohibits a "talent service," its directors, officer, agents
and employees from engaging in a number of specified
activities.
8)Prohibits 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.
9)Provides 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."
b) Provide a listing of an audition, job, or employment
opportunity without written permission for the listing. A
talent listing service shall 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
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date the permission was granted.
1)Revises requirements related to language and other provisions
for contracts between artists and talent services.
2)Prohibits a contract for fee-related talent services from
being automatically renewed.
3)Amends procedures related to the cancellation of contracts and
refunds.
4)Revises recordkeeping requirements.
5)Increases a bond requirement for talent services from $10,000
to $50,000.
6)Provides that a person, including an officer, director agent
or employee who violates these provisions is guilty of a
misdemeanor and eliminates a requirement that violation be
"willful" to constitute a misdemeanor.
7)Provides that damages for violations shall be no less than
three times the amount paid by the artist to the talent
service.
FISCAL EFFECT : Unknown
COMMENTS : Since 1959, California law has regulated "talent
agencies" by, among other things, requiring the licensure of
such agencies with the Labor Commissioner. "Talent agencies"
are defined as persons or corporations who engage in the
procuring, offering, promising or attempting to procure
employment or engagements for artists. In general, a talent
agency does not charge an up-front fee but instead procures
employment for an artist and then charges a commission fee or
similar compensation.
However, 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. At the time,
concerns were expressed that unscrupulous individuals were
posing as talent agents or talent managers and were requesting
large payments in exchange for promises of employment that they
could never deliver.
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That changed with the enactment of AB 884 (Kuehl), Chapter 626,
Statutes of 1999.
Among other things, AB 884 required a contract between an
advance-fee talent service and an artist to be in writing and to
contain specified provisions, including a right to cancel the
contract and to receive a refund, as specified. The bill also
required an advance-fee talent service to file a bond or deposit
in the amount of $10,000 with the Labor Commissioner. In
addition, AB 884 prohibited an advance-fee talent service from
engaging in specified activities, including making false,
misleading, or deceptive advertisements, giving an artist false
information, or charging a fee for registering or listing an
artist for employment in the entertainment industry.
The measure also provided that a person who willfully violates
any provision of the law was guilty of a misdemeanor and
authorized the Attorney General, a District Attorney or an city
attorney to bring an action for violation of the law. AB 884
also authorized an aggrieved person to bring a private action
and authorized the recovery of treble damages.
Subsequent legislation, 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.
In 2005, legislation was enacted to close an alleged loophole in
which unscrupulous individuals were finding a way around the law
by continuing to charge up-front fees for photographs or
"casting kits" while indicating that these services will lead to
employment. That measure was enacted as SB 1687 (Murray)
Chapter 2008, Statutes of 2004.
SUMMARY OF CHANGES PROPOSED BY THIS BILL :
This bill proposes to revamp and recast the provisions of law
regulating advance-fee talent services, adding several new
definitions and imposing new requirements, responsibilities or
prohibitions on providers of those services. In general, this
bill proposes to distinguish "advance-fee representation
services" (which are prohibited by the bill) from other types of
"fee-related talent services," which are subject to specific
regulation as set forth by the bill.
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Changes Relative to "Advance-Fee Representation Services"
This bill defines an "advance-fee talent representation service"
as a person that, for a fee, provides, holds themselves out as
providing, offers to provide, or represents it will make a
referral to another person who will provide an artist with any
of the following services:
Procuring or attempting to procure employment or an
engagement as an artist;
Procuring or attempting to procure an audition for
an artist;
Managing or directing the development of an artist's
career;
Procuring or attempting to procure a talent agent or
talent manager, including an associate, representative or
designee thereof.
The bill contains numerous specified exemptions from these
provisions, as specified below
This bill prohibits 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.
Violations of this prohibition are misdemeanors and subject to
certain other remedies, as specified below.
Changes Relative to "Fee-Related Talent Services"
This bill establishes a new definition for "fee-related talent
services," which consist of various specified activities. In
general, "fee-related talent services" are not prohibited by the
bill but are subject to specific regulation as discussed below.
Changes to Definitions
a) "Talent Service"
This bill defines a "talent service" to mean: (1) a talent
counseling service; (2) a talent listing service; or (3) a
talent training service. Those terms are in turn defined as
follows:
i) "Talent Counseling Service"
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This bill defines a "talent counseling service" to mean 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.
ii) "Talent Listing Service"
This bill defines a "talent listing service" to mean 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 any of the
following:
A list of one or more auditions or employment
opportunities.
A list of one or more talent agents or talent managers,
including an associate, representative or designee thereof.
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.
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.
i) "Talent Training Service"
This bill defines 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.
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a) Talent Scout"
This bill 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. The bill specifies that the principals of
a service are themselves talent scouts if they solicit on behalf
of the service.
b) Exemptions
This bill contains a number of exemptions and specifies that
these requirements do not apply to public educational
institutions, or private educational institutions,
psychologists, education psychologists, nonprofit corporations,
labor organizations, publications, public libraries or public
institutions that meet specified conditions. The provisions of
the bill also do not apply to a talent listing service if, among
other things, a majority interest in the service is owned by one
or more colleges, universities or alumni associations, as
specified.
Changes to "Prohibited Acts"
This bill provides that a "talent service", its directors,
officers, agents, and employees shall not do any of the
following:
Make or cause to be made any advertisement or
representation expressly or impliedly offering the
opportunity for an artist to meet with or audition before
any producer, director, casting director, or any associate
thereof, or any other person who makes, or is represented
to make, decisions for the process of hiring artists for
employment as an artist, or any talent agent or talent
manager, or any associate , representative or designee
thereof, unless the talent service maintains for inspection
and copying written evidence of the supporting facts,
including the name, business address, and job title of all
persons conducting the meeting or audition, and the title
of the production and the name of the production company.
Make or cause to be made any advertisement or
representation that any artist, whether identified or not,
has obtained an audition, employment opportunity, or
employment as an artist in whole or in part by use of the
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talent service unless the talent service maintains for
inspection and copying written evidence of the supporting
facts upon which the claim is based, including the name of
the artist and the date the contract was executed.
Charge or attempt to charge an artist for an audition or
employment opportunity.
Require an artist, as a condition for use of a talent
service, or to obtain any additional benefit or
preferential treatment from the talent service, to pay a
fee for creating or providing photographs, filmstrips,
videotapes, audition tapes, demonstration reels, or other
reproductions of the artist, Internet Web sites, casting or
talent brochures, or other promotional materials for the
artist.
Charge or attempt to charge an artist any fee not
disclosed, as specified.
Unless it is conspicuously disclosed to the artist prior
to the execution of the contract with the artist in a
separate writing provided to the artist to keep, refer an
artist to any person who charges the artist a fee for any
product in which the talent service, its directors,
officers, agents, or employees has a direct or indirect
financial interest.
Require an artist, as a condition for use of a talent
service, or as a condition for obtaining any additional
benefit or preferential treatment from the talent service,
to pay a fee to any other service in which the talent
service, its directors, officers, agents, or employees has
a direct or indirect financial interest.
Accept any compensation or other valuable consideration
for referring an artist to any person charging the artist a
fee.
Fail to remove an artist's Internet Web site and its
content within 10 days of a request by telephone, mail,
facsimile or electronic mail from the artist, or parent of
guardian of the artist if the artist is a minor.
The bill also prohibits 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.
Finally, the bill provides that a "talent listing service", and
its officers, directors, agents, and employees, shall not do
either of the following:
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Own, operate, or have a direct or indirect financial
interest in a "talent training service" or a "talent
counseling service."
Provide a listing of an audition, job, or employment
opportunity without written permission for the listing. A
talent listing service shall 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.
Changes Regarding Contract Agreement Provisions and
Recordkeeping Requirements
a) General Contract Provisions
Current law requires every contract between an artist and an
advance-fee talent service to be in writing and contained
certain specified language and provisions. This bill changes
the required contract language as follows:
First, the bill requires the contract to contain evidence of
compliance with applicable bonding requirements, including the
name of the bonding company and bond number, if any, and a
statement indicating that a $50,000 bond must be posted with the
Labor Commissioner.
Second, the bill adds new boilerplate language that must be
included in every contract stating that the talent service is a
"talent counseling service", "talent listing service" or "talent
training service." The boilerplate language specifies that only
a licensed talent agent can engage in procuring, offering,
promising, or attempting to procure employment or engagements
for an artist.
Third, the bill specifies that, for contracts executed over the
Internet, the talent service shall give the artist clear and
conspicuous notice of the contract terms and provide the artist
the ability to acknowledge receipt of the terms before
acknowledging agreement thereto. The bill provides that in any
dispute regarding compliance with this requirement, the talent
service shall have the burden of proving that the artist
received the terms and acknowledged agreement thereto.
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Finally, the bill also provides that if a talent service offers
to list or display information about an artist, including a
photograph, on the service's Internet Web site, or on a Web site
that the service has authority to design or alter, the contract
shall contain a notice that the talent service will remove the
listing and content within 10 days of a request by the artist
or, in the case of a minor, the artist's parent or guardian. The
contract shall include a valid telephone number, mailing
address, facsimile and e-mail address for the talent service to
which a request for removal may be made.
b) Non-Automatic Renewal
This bill prohibits a contract for fee-related talent services
from being automatically renewed.
c) Changes to Contract Cancellation/Refund Procedures
Under current law, an artist may cancel a contract for
advance-fee talent services, without any penalty or obligation,
within 10 business days from the date of execution of the
contract. In the event that an artist cancels the contract, the
advance-fee talent service is required to refund in full any
advance fees within 10 days. If payment is not refunded within
10 days, the advance-fee talent service is required to pay the
artists an additional sum equal to the amount of the fee.
In addition under current law, if the artist does not receive
the services that were promised or that the artist was led to
believe would be performed, fees are to be refunded. If
repayment is not made within 48 hours of the demand, the
advance-fee talent service is required to pay the artist an
additional sum equal to the amount of the fee.
This bill proposes to amend these cancellation/refund
procedures.
First, the bill provides that an artist may cancel a contract
for talent training services within 10 business days of
execution of the contract by mailing or delivering or sending by
facsimile to the talent service a signed and dated copy of the
cancellation notice or any other written notice of cancellation,
or by sending a notice of cancellation by the Internet if the
contract was executed in part or in whole through the Internet.
The bill requires a talent service to refund all fees paid by,
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or on behalf of an artist within 10 business days after delivery
of the cancellation notice.
Second, the bill provides that, unless a talent service
conspicuously discloses in the contract that cancellation is
prohibited after the ten-day cancellation period, an artist may
cancel a contract for talent services at any time after the
10-day cancellation period and receive a refund on a pro rata
basis by mailing or delivering or sending by facsimile to the
talent service a signed and dated copy of the cancellation
notice or any other written notice of cancellation, or by
sending a notice of cancellation by the Internet if the contract
was executed in part or in whole through the Internet. The bill
requires a talent service to refund all fees paid by, or on
behalf of an artist on a pro rata basis within 10 business days
after delivery of the cancellation notice.
d) Advertisements
This bill provides that an advertisement soliciting artists to
perform or demonstrate any talent, 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."
e) Recordkeeping Requirements
Existing law requires every person engaging is the business of
an advance-fee talent service to keep and maintain records as
specified.
This bill revises those recordkeeping requirements to specify
that these records shall include all of the following:
The name and address of each artist contracting with
that talent service.
The amount of the fees paid by or for the artist during
the term of the contract with the talent service.
The name, address, date of birth, social security
number, federal tax identification number, and driver's
license number and state of issuance thereof, of the owner
of the service, and the corporate officers if the service
is owned by a corporation.
The legal name, principal residence address, date of
birth, and driver's license number and state of issuance
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thereof, of every talent scout, as defined in subdivision
(g) of Section 1701, and the name(s) each talent scout uses
while soliciting. No talent scout shall use the same name
as used by any other talent scout soliciting for the
service and no service shall permit a talent scout to use
the same name as used by any other talent scout soliciting
for the service.
Other specified information.
Any other information that the Labor Commissioner
requires.
This bill also requires that all books, records, and other
papers kept by a talent service shall be open during the hours
of 9:00 a.m. to 5:00 p.m., Monday through Friday, except legal
holidays to inspection by any peace officer or to any
representative from the Labor Commissioner, Attorney General,
district attorney, or any city attorney.
The bill also requires every talent service to furnish to the
Labor Commissioner, police, Attorney General, district attorney,
or city attorney, upon request, a true copy of those books,
records, and papers, or any portion thereof, and to make reports
as the Labor Commissioner requires.
Changes to Bond Requirements and Fees
Existing law provides that, prior to "engaging in the business
or acting in the capacity of an advance-fee talent service", a
person shall file with the Labor Commissioner a bond in the
amount of $10,000 or a deposit in lieu of the bond, as
specified.
This bill amends the law to requiring such bonding from a talent
service prior to "advertising or engaging in business."
This bill also increases the amount of the bond required from
$10,000 to $50,000.
Changes to Remedies
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.
This bill instead provides that a person, "including an owner,
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officer, director, agent, or employee of a talent service" who
violates the law is guilty of a misdemeanor. The bill also
eliminates the requirement that the violation be "willful."
Current law 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 changes those damages to "not less than three times
the amount paid by the artist, or on behalf of the artist, to
the talent service or the advance-fee talent representation
service."
ARGUMENTS IN SUPPORT :
This measure is co-sponsored by Los Angeles City Attorney Rocky
Delgadillo, the Screen Actors Guild (SAG), and the Better
Business Bureau - Southland.
According to the author's office:
"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. This fraud is
accomplished through deceptive newspaper, Internet and
radio advertisements and by phony 'talent scouts', who
descend upon parents at shopping malls and community fairs,
offer the unsolicited opinion that their child has star
potential, and invite them to an 'audition'- which turns
out to be a 'bait and switch' attempt to sell photographs,
classes and listing services.
While the number of consumers swindled multiplies, talent
scams run rampant because our current laws do not address
the types of fraud they employ and do not provide law
enforcement with the tools to address the problem.
According to statistics from 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
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complaints and an additional 143,000 inquiries, revealing a
massive public interest in businesses that promote instant
stardom. Since the amount of loss to an individual victim
frequently amounts to $1,000 or more, this is a crime that
results in millions of dollars in loss.
Aside from causing substantial monetary loss - usually to
persons who can least afford it - talent scams cause severe
emotional harm to victims, who go from the initial feeling
of elation after learning they have passed the 'audition,'
to extreme disappointment when it is revealed that the
audition and promise of acting jobs was a lie to sell them
photos, classes or websites. Obviously, this has even a
greater impact upon children. Even when a parent chooses
not to pay for the service, the resentment of their
children strains relationships.
Another byproduct of the talent scam is that offenders
obtain personal information about their clients which can
lead to identity theft.
Plus, there is a genuine concern expressed by parent's
groups that the failure to adequately regulate this
industry allows pedophiles and other unscrupulous persons a
means to gain access to minors.
[This bill] is a comprehensive solution to the problem of
abusive business practices and fraud that permeates the
advance-fee talent industry. It provides law enforcement
with the tools necessary to protect the public and children
in particular.
Existing law makes it a misdemeanor offense, punishable by
jail, for talent representation services (agents, manager,
career counselors) to charge potential actors and models
fees for classes, photos or registration, or to follow
other requirements, including using written contracts
containing a 10-day right of cancellation, maintaining
records and posting a $10,000 bond with the State Labor
Commissioner.
At present, there are no laws which regulate talent
training service or talent listing services, the avenues
which have been exploited by talent scammers."
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REGISTERED SUPPORT / OPPOSITION :
Support
Better Business Bureau of Southland (co-sponsor)
California District Attorneys Association
Office of Los Angeles City Attorney Rockard J. Delgadillo
(co-sponsor)
Screen Actors Guild (co-sponsor)
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091