Agents of Influence, By Contract and Contrast

Image Courtesy of the Associated Press

The Writers Guild of America (WGA) and the Association of Talent Agents (ATA) has been negotiating with each other for weeks, if not months now.  At stake is the future of the relationship between talent (the writers) and their representative (the agents).  To date, no agreement has been made.

What is up for debate, mainly, is whether agents will subject themselves to a “Code of Conduct” and either get rid of packaging fees or potentially share those fees with their clients.  Breaking that down to basic terms, the WGA union and their members want a change in the relationship with their agents that has existed for years as the norm and the status quo

On the one hand, managers and agents will say packaging is the lifeblood of their success on taking writers and teaming them up with actors in specific content projects.  In other words, the financial power is in the packaging of talent groups together so that the development and production process is easier for the studios in the film and television business.

On the other hand, a long history of conflicts of interest, a low profile, and lower pay than some of their talent counterparts who by contract and contrast appear on screen, writers have now been instructed to fire their agents as a deal was not struck between the WGA and the ATA.  As of Sunday morning, some writers have indeed fired their agents.

At the foundation of practicality, a major concern going forward is how non-registered agents (e.g., attorneys and managers) can work with talent, specifically the recently unrepresented writers who fired their agents, where the Talent Agencies Act (TAA) in California requires that the procuring of all talent “entertainment” employment be brokered through an agent but for two exceptions (1) where an individual is in association/working with a registered agent, or (2) music clients. 

There are four solutions to the dilemma:

1. Attorneys Get Licensed as Agents

Attorneys become licensed talent agents, wear two hats (agent or attorney, but not at the same time that could prove difficult), and are automatically subject to the State Bar of California’s Rules of Professional Conduct (Rules).  The Rules, however, are why many agents (in entertainment and sports) do not practice law. Namely, the Rules against in-person contact and the multi-jurisdictional practice of law are too difficult to implement when running a successful agency. The ATA also has its own self-implemented policy on its agents/agencies rules and responsibilities.

2. Agents and Attorneys Dealmake Together

Attorneys team up with industry-ready licensed talent agents and broker deals together where again the attorney would be subject to the Rules and possibly would have to institute, via the Rules and similar requirements, supervisory responsibilities over the agent to make sure that the ethical rules and prohibitions against conflicts of interest are adhered to throughout the dealmaking process.  Specifically, attorneys refraining from packaging while getting paid a flat fee or retainer for their services versus backend percentages, unless agreed to in writing with the client in advance of the deal being made. 

3. Writers Hire Back the Same or New Agents under Changed Circumstances

Writers could hire their agents back, or different agents, and make individual deals separate from the WGA-ATA dispute disallowing packaging while adhering to a code of conduct.  

4. Change or Eliminate the TAA

The TAA could be changed to allow for attorneys to automatically become “licensed” by nature of their license to practice law, which this author has written about previously, but again would still be subject to the attorney-client relationship standards and best practices.  The main argument here is that the TAA is an unreasonable restraint on trade as antitrust activity against attorneys, and managers.  Furthermore, that attorneys routinely do the work of agents, or rather that agents routinely do the work of attorneys, yet one is required to get licensed by the State of California Department of Industrial Relations, but not the State Bar of California.

What will happen?  Time will tell.  Some individual agencies have been more receptive to the code of conduct and packaging fees requests, but regardless the industry is ripe for change.      

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