You are on page 1of 26

Case No.

13-55545

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT


National Conference of Personal Managers, Inc.

Plaintiff-Appellant

vs.

Edmund G. Brown, Jr. et al

Defendants-Appellees


On Appeal from the
United States District Court,
Southern District of California
District Court Case Number CV 12-09620
The Honorable Dean D. Pregerson, Judge, Presiding


AMICUS CURIAE BRIEF OF MUSIC MANAGERS FORUMUS, TALENT
MANAGERS ASSOCIATION, ATTORNEY EDWIN F. MCPHERSON, AND
ENTERTAINMENT LAW PROFESSORS ROBERT C. LIND AND MICHAEL
M. EPSTEIN IN SUPPORT OF APPELLANTS OPENING BRIEF TO
REVERSE THE DECISION OF THE DISTRICT COURT.

ROBERT C. LIND MICHAEL M. EPSTEIN
Professor of Law Professor of Law
Supervisor, Amicus Project at Director, Amicus Project at
Southwestern Law School Southwestern Law School
3050 Wilshire Blvd. 3050 Wilshire Blvd.
Los Angeles, CA 90010 Los Angeles, CA 90010
Telephone: (213) 736-6785 Telephone: (213) 736-6774
Facsimile: (213) 738-6614 Facsimile: (213) 738-6614

Pro bono attorneys for above-referenced amici curiae.
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 1 of 26
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS...i
DISCLOSURE AND COMPLIANCE STATEMENTS. . . . . . . . . . . .ii
STATEMENT OF INTEREST AND IDENTIFICATION OF AMICI.. . . . . . .. ii
TABLE OF AUTHORITIES... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..vi
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... ... 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
The Talent Agencies Act Undermines Its Purpose Thereby Failing The Rational
Basis Test.. 2

A. The Current Enforcement of the Talent Agencies Act Is Contrary To Its
Legislative Protective Purpose ...2

1. Employment Procurement Does Not Interfere With The Acts Intended
Protections......6

2. Under Current Enforcement Of The Act, Artists Are Unjustly Enriched
And Given a Tool to Avoid Contractual Commitments....7

B. The Talent Agency Acts Prohibition Against Unlicensed Employment
Procurement Does Not Satisfy Due Process Standards Required To Justify
State Regulation.....9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 2 of 26
ii
STATEMENT OF COMPLIANCE TO RULE 29(c)(5)

Amici curiae state that (a) no party's counsel authored this brief in whole or
in part; (b) no party, nor counsel for either party, contributed money that was
intended to fund preparing or submitting this brief; and (c) no person other than
amici curiae, their members or their counsel contributed money that was intended
to fund preparing or submitting this brief.
CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure, all amici curiae state that
they are either non-profit organizations, professors at non-profit educational
institutions, or entertainment industry advocates. They have no parent companies
and have not issued shares of stock.
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. Attorney for Defendant-Appellees and
Plaintiff-Appellant have consented to the filing of the amicus brief.
STATEMENT OF INTEREST AND IDENTIFICATION OF AMICI

Amici Curiae Music Managers Forum-US (MMF-US), Talent Managers
Association (TMA), and Edwin F. McPherson are major advocates for the talent
management and entertainment industry whose members or clients will be
adversely impacted if the District Courts decision is upheld. Amici have a
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 3 of 26
iii
substantial and serious interest in a decision that will expose managers and other
entertainment industry participants to the voiding of contracts and the forfeit of
compensation by the State of California. Most leads of films and series regular
roles are cast in California, and many music industry contracts are signed in
California, so managers need to be able to work in conjunction with agents and
casting directors and producers in California and other states. It is therefore
essential that managers be able to represent talent, no matter which U.S. state the
manager or talent is located in. The nature of entertainment industry today is that
production frequently occurs in more than one state, requiring talent to work with
different producers and different agents in each state.
The TMA, MMF-US and Edwin F. McPherson support the Appellant
because for decades the California Talent Agencies Act and the California Labor
Commissioner have unfairly singled out personal managers and deprived them of
their constitutional rights. Amici Professors Robert C. Lind and Michael M.
Epstein have a strong interest in assuring that the industry evolves fairly and
profitably for managers, talent agencies, and talent.
Amicus TMA was founded in 1955 as an association of professional talent
managers, virtually all of whom would be subject to disgorgement of
compensation under the Talent Agencies Act. The TMA exists for the benefit of
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 4 of 26
iv
its members, the casting, agent and producing communities and talent in all areas
of the entertainment industry.
Amicus MMF-US, founded in 1993, is an association comprised of managers
in the music industry, and many of its members risk disgorgement under the Talent
Agencies Act. The MMF-US exists to further the interests of managers and their
artists in all fields of the music industry, including live performance, recording and
music publishing matters. The TMA and MMF-US membership consists of
managers located in California and in many different states.
Amicus Robert C. Lind is the Director Emeritus of the Donald E. Biederman
Entertainment and Media Law Institute, a Professor of Law at Southwestern Law
School, and author of numerous entertainment and copyright law books, treatises,
and articles. He is a supervising attorney for the pro bono Amicus Project at
Southwestern Law School.
Amicus Michael M. Epstein is the Director of the Amicus Project and a
Professor of Law at Southwestern Law School where he writes and teaches in the
areas of entertainment and communications law. He is the Supervising Editor of
the Journal of International Media and Entertainment Law, published by the
American Bar Association and the Biederman Institute.
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 5 of 26
v
Amicus Edwin F. McPherson is an attorney with thirty years experience in
entertainment law concerning managers, artists, producers, agents, and other
entertainment industry participants and has served as a consultant and expert
witness in regard to the Talent Agencies Act.

Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 6 of 26
vi

TABLE OF AUTHORITIES
CASES
Page
SUPREME COURT CASE
F.C.C. v. Beach Commcns, Inc., 508 U.S. 307 (1993).7
FEDERAL CASES
Baer v. City of Wauwatosa, 716 F.2d 1117 (7th Cir. 1983)....................................11
Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)..13
Lock v. Shore, 634 F.3d 1185 (11th Cir. 2011)...11
Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008).......14
Pick Up v. Brown, No. 13-15023, WL 456249 (9th Cir. Aug. 29, 2013) ...11
STATE CASES
Cornwell v. California Bd. of Barbering and Cosmetology, 962 F. Supp. 1260
(S.D. Cal 1997) ...14
Griffiths v. Superior Court, 96 Cal. App. 4th 757 (2002).....10, 11, 12, 13
Howard Entertainment, Inc. v. Kudrow, 208 Cal. App. 4th 1102 (2012).....4
Hughes v. Bd. of Architectural Examiners, 17 Cal. 4th 763 (Cal. 1998)10
In re Arthur W., 171 Cal. App. 3d 179 (1985) ...10


Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 7 of 26
vii
TABLE OF AUTHORITIES
STATE CASES Cont.
Marathon Entertainment, Inc. v. Blasi,
42 Cal. 4th 974 (Cal. 2008) ..3, 4, 5, 6, 8, 9, 12
Marek v. Bd. of Podiatric Medicine, 16 Cal. App. 4th 1089 (1993).. 10
Rand. v. Bd. of Psychology, 206 Cal. App. 4th 565 (2012).10
Rhodes v. Herz, (N.Y. App. Div. 2011) 84 A.D. 3d 1.15
Styne v. Stevens, 26 Cal. 4th 42 (Cal. 2001) .. ......1
Waisbren v. Peppercorn Prods., Inc., 41 Cal. App. 4th 236 (1995).............8
Whitcomb v. Emerson, 46 Cal. App. 2d 263 (Cal. 1941)....13

LABOR COMMISSION DETERMINATIONS
Billy Blanks Jr. v. Ricco, No. TAC 7163 (Cal. Lab. Commn Jan, 9, 2009).....9
Derek v. Callan, No. TAC 18-80 (Cal. Lab. Commn Jan. 14, 1982).....12
Krutonog v. Chapman, No. TAC 3351 (Cal. Lab. Commn Oct. 31, 2012).8

Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 8 of 26
viii

TABLE OF AUTHORITIES

STATUTES

Page
California Labor Code 1700.4 (West 2011) ......2, 7
California Labor Code 1700.6 (West 2011) ......7
California Labor Code 1700.7 (West 2011).......7
California Labor Code 1700.9 (West 2011) ......7
California Labor Code 1700.15 (West 2011).....7
California Labor Code 1700.25 (West 2011).....7
California Labor Code 1700.34 (West 2011).7
California Labor Code 1700.35 (West 2011).....7
New York General Business Code 171(8) (McKinney 1996)..15
Report of the California Entertainment Commn, May 23, 1985
(Cal. Doc. E203 R4)....2, 8

LEGISLATIVE HEARINGS
The Licensing and Regulation of Artists, Personal Managers, and Musicians Book:
Hearings Before the California Legislature Senate Committee and Industrial
Relations 222 (1975).........3


Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 9 of 26
ix
TABLE OF AUTHORITIES

OTHER AUTHORITIES
Busch, Walking on the California Talent Agency Acts Thin Ice: Personal
Managers Beware! Forbes (March 25, 2013)
http://www.forbes.com/sites/richardbusch/2013/03/25/walking-on-the-california-
talent-agency-acts-thin-ice-personal-managers-beware/...4

McPherson, Is the California Legislature Listening? 35 L.A. Law. 48 (May, 2012)
....7, 14

OBrien, Regulation of Attorneys Under Californias Talent Agencies Act; A
Tautological Approach to Protecting Artists, 80 Cal. L. Rev. 492 (1992) 492
(1992).3, 4

Robertson, Dont Bite the Hand That Feeds: A Call for a Return to an Equitable
Talent Agencies Act Standard, 20 Hastings Comm. & Ent. L.J. 223 (1997)2, 6

Jim Herron Zamora, Talent Agency Held in Sexual Assaults, L.A. Times, Oct. 8,
1992, at B16
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 10 of 26
1
SUMMARY OF THE ARGUMENT
The Talent Agencies Acts (Act or TAA) original remedial purpose, to
protect artists seeking professional employment from the abuses of talent
agencies, Styne v. Stevens, 26 Cal. 4th 42, 49 (Cal. 2001), arguably satisfied
rational basis review in the early and mid-twentieth century when the original
version of the Act was enacted. Its prohibition on unlicensed employment
procurement however, does not serve its purpose, nor does it maintain a nexus to
any harm as required to satisfy rational basis review standards. The entertainment
industry has changed under the impact of new media and increased competition;
the typical aspiring artist relies on a manager to represent her before she can be
represented by an agent. Although managers fill this void, they are being deprived
of due compensation by individual artists due to the interpretation of this Act.
Managers, who are critical to burgeoning artists careers, are presently being
unjustifiably deprived of freely bargained for and earned commissions under the
Acts current enforcement. While the state may regulate certain trades or activities
if the regulations satisfy rational basis review, the manner by which the Talent
Agencies Act is being enforced is irrational and unjust. The Labor Commissioner
has voided managers contracts with artists who have benefited from managers
services and then used the Act to avoid compensation due under the contract. Used
in this way, the Act does not justly serve artists, but primarily protects talent agents
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 11 of 26
2
that have attempted to exert dominance in the procurement of employment for
artists.
ARGUMENT
The Talent Agencies Act Undermines Its Purpose, Thereby Failing The
Rational Basis Test.
A. The Current Enforcement of the Talent Agencies Act Is Contrary To
Its Legislative Protective Purpose.
The Talent Agencies Act (formerly the Artist Management Act) was
intended to be a prophylactic measure protecting developing artists from
improprieties by talent agents because of [their] strong reliance upon their agents
for employment. See Report of the California Entertainment Commn, May 23,
1985, Cal. Doc. E2035 R4 1985, at 3-4. Paradoxically, the protections intended by
the Legislature to shield artists from harm are being used as a sword against talent
managers, who are otherwise performing in good faith services for which artists
have freely bargained for and ratified by receiving the benefits thereof. Chip
Robertson, Note, Dont Bite the Hand That Feeds: A Call for a Return to an
Equitable Talent Agencies Act Standard, 20 Hastings Comm. & Ent L.J. 223, 264-
65 (1997).
The Act purports to regulate a talent agency, defined as a person or
corporation who engages in the occupation of procuring, offering, promising, or
attempting to procure employment or engagements for an artist by establishing
standards for agents conduct with artists. Cal. Lab Code 1700.4 (West 2011).
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 12 of 26
3
The Legislature was concerned about females being lured into prostitution under
the auspices of furthering their careers. James M. OBrien III, Comment,
Regulation of Attorneys Under Californias Talent Agencies Act: A Tautological
Approach to Protecting Artists, 80 Cal. L. Rev. 471, 493 (1992) (citing The
Licensing and Regulation of Artists, Personal Managers, and Musicians Booking
Agencies: Hearings Before the California Legislature Senate Committee on
Industrial Relations 222 (1975) (testimony of Roger Davis, First Vice President of
the Artists' Managers Guild)). The regulation was enacted to also address similarly
important concerns about minors being sent to work in bars or other unsuitable
locations and managers fee-splitting with venues that booked artists. Id.
The 1943 California Talent Agencies Act evolved from only generally
regulating employment in 1913, to the 1978 version that specifically applied to
talent agents. After the Labor Commissioner decided not to establish a separate
licensing scheme for personal managers, Marathon Entertainment Inc., v. Blasi, 42
Cal. 4th 974, 984-85 (Cal. 2008), the regulations name changed from the Artists
Managers Act to the Talent Agencies Act. OBrien, supra, at 493. The Act was
further amended in 1982, to, in part, create an Entertainment Commission, exempt
procurement of recording contracts from the Act, and allow for an unlicensed
person to procure employment with and at the request of a licensed talent agent.
Marathon, 42 Cal. 4th at 985. In 1985, the Entertainment Commission noted that
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 13 of 26
4
any and all procurement of employment came under the Act and that the Labor
Commissioner has acted accordingly, including establishing that attorneys come
within the purview of the Act. OBrien, supra, at 496.
The Act however, has not kept up with the changes in the entertainment
industry. As talent agencies increased in sizeagents could no longer give their
clients the personal attention they had in the past,

thus managers became more
customarily involved in day to day work with artists and interfacing with their
agents. Howard Entertainment, Inc., v. Kudrow, 208 Cal. App. 4th 1102, 1109 10
(2012). Accordingly, the roles of agent and manager became less distinguishable,
tending to overlap. Marathon, 42 Cal. 4th at 980 (Cal. 2008). The Court observed
that [t]the occasional procurement of employment opportunities may be standard
operating procedure for many managers and an understood goal when not-yet-
established talents, lacking access to the few licensed agents in Hollywood, hire
managers to promote their careers.

Id.
In spite of the increasing industry reliance on managers, they have suffered
an estimated total loss in revenues of $250,000,000 in the last forty years as a
result of artists using the Act to avoid paying due commissions for received
services. Richard Busch, Walking on the California Talent Agency Acts Thin Ice:
Personal Managers Beware!, Forbes (March 25, 2013, 11:19 AM),
http://www.forbes.com/sites/richardbusch/2013/03/25/walking-on-the-california-
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 14 of 26
5
talent-agency-acts-thin-ice-personal-managers-beware/. Indeed, Marathon held
that the Labor Commissioners views are entitled to substantial weight if not
clearly erroneous such that all unlicensed employment procurement was violative
of the Act, and therefore unlawful. Marathon, 42 Cal. 4th at 987-88. However,
although also resolving to apply the TAA even to incidental procurement,
Marathon did so only on statutory grounds. Id. at 988.
Additionally, the Marathon Court expressed concern that although
[a]dopted with the best of intentions, the Act and guild regulations aimed at
protecting artists evidently have resulted in a limited pool of licensed talent
agencies, and in combination with high demand for talent agency services, created
the right condition for a black market for unlicensed talent agency services. Id. at
997. The Court described the resulting remedies for talent under the Act as a blunt
and unwieldy instrument. Id. (observing that the ability for talent to void any
contractual agreements to pay managers fees that are construed as related to
procuring employment may well punish most severely those managers who work
hardest and advocate most successfully for their clients, allowing the clients to
establish themselves, making themselves marketable to licensed talent agencies,
and be in a position to turn and renege on commissions).
The resulting inequity from the Acts current enforcement does not comport
with the legislative objectives of the Act, nor does it serve the entertainment
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 15 of 26
6
industry or artists overall. Procuring employment produces no harm to an up and
coming artist whose earning power is too small to attract a licensed agent. The
threat of immoral talent agents promising work to aspiring artists being lured into
establishments of ill repute is not being protected simply by requiring a license for
procurement.
The other parts of the Act can still be enforced without punishing people
who are in no other way violating the Act, or any other California law. The moral
concerns of the Legislature are not addressed by punishing unlicensed procurement
and requiring agency licenses. E.g., Jim Herron Zamora, Talent Agent Held in
Sexual Assaults, L.A. Times, Oct. 8, 1992, at B1 (one of several reported incidents
of moral conduct violations by licensed agents). Yet, as attorneys acknowledge off-
the-record, artists may, in bad faith, use the TAA to get out from under an
otherwise lawful contract on the technicality. Therefore, [i]s it likely that
managers will invest time and money developing an artist while knowing that they
will never be paid for it? Edwin F. McPherson, Is the California Legislature
Listening?, 35 L.A. Law. 48, 48 (May, 2012). The Acts current enforcement does
no justice to managers and is not protecting talent as much as it is protecting agents
and constraining an industry.


Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 16 of 26
7
1. Employment Procurement Does Not Interfere With the Acts
Intended Protections.
The Talent Agencies Act addresses particular concerns in keeping with the
Legislative purpose of protecting artists. A moral character application is required
( 1700.6, 1700.7); workplace safety is regulated ( 1700.9); a separate client
trust account is mandatory for fees collected on behalf of talent ( 1700.25), and a
surety bond is also required ( 1700.15). Additionally, the Act protects talent from
being sent to an unsafe prohibited place ( 1700.33), minors from being sent to a
saloon or place where intoxicating liquors are sold to be consumed on the
premises ( 1700.34), and it prevents talent agencies from knowingly permitting
any persons of bad character, prostitutes, gamblers, intoxicated persons, or
procurers to frequent, or be employed in, the place of business of the talent
agency. ( 1700.35).
The protections promulgated in the Act, in response to legitimate concerns
about harms, may be left in tact without unjustly enriching artists who are not
victim to any of these abuses, but rather converting the TAA into a tool for
avoiding contractual commitments. Presently, however, artists get out of their
contractual obligations simply by alleging that managers or producers engaged in
efforts to launch the artists career, or secure a promotional or performance
opportunity as unlicensed procurement. The resulting harm is only to the procurer.
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 17 of 26
8
2. Under Current Enforcement of the Act, Artists Are Unjustly
Enriched and Given a Tool to Avoid Contractual Commitments.
The Entertainment Commission wanted to strictly enforce the Acts
prohibitions against unlicensed procurement of employment in order to compel
adherence to the Act. Waisbren v. Peppercorn Prods., Inc. 41 Cal. App. 4th 246,
258 (1995). The result, however, is a bastardization of the intent and purpose of
Act that has been used, not to protect talent, but to hurt managers.
Talent contracts with managers and others have been voided merely because
the work the person did was construed by the Labor Commissioner as procuring
employment, thereby justifying disgorgement of the service providers expectancy
interest. E.g., Park v. Deftones, 71 Cal. App. 4th 1465, 1465 (1999) (where a music
band manager was not paid due commissions because of evidence presented to the
Labor Commissioner that the manager had procured performance engagements
while also trying to obtain a recording agreement); see also, Krutonog v. Chapman,
No. TAC 3351 (Cal. Lab. Commn Oct. 31, 2012) (where a producer, who
developed a project over ten years after optioning life story rights and selling a
reality television show, lost more than half a million dollars in commissions
because his producing work was construed as unlicensed managerial procurement);
and Marathon Entertainment, 42 Cal. 4th at 998 (personal manager unable to
recover a commission for having procured a lead role in a television series for an
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 18 of 26
9
actress who benefited from the managers ongoing financial, professional, and
personal support).
Most absurdly, even a partnership agreement was of no avail to the person
expecting a ten percent commission for co-creating a fitness program, but
receiving nothing for his time and effort when securing promotional spots for the
program on television was deemed procurement. Billy Blanks Jr. v. Ricco, No.
TAC 7163 (Cal. Lab. Commn Jan. 9, 2009). These are just a few examples of
unjust enrichment that does not serve the Acts overall protective purpose because
it does nothing to protect the artist from the dangers associated with the immoral
conduct concern. There is no harm to an artist if none of the Acts other provisions
are violated. There is, however, injustice and serious economic harm to the person,
who in acting in good faith in serving the client, is victimized by the artists
manipulation of the Act.
B. The Talent Agencies Acts Prohibition Against Unlicensed Employment
Procurement Does Not Satisfy Due Process Standards Required to
Justify State Regulation.

Social and economic policy or statutory classification, if it does not infringe
on fundamental constitutional rights (such as free speech), may be upheld when it
bears a rational relation to a legitimate legislative purpose and is neither arbitrary
nor discriminatory. F.C.C. v. Beach Commcns, Inc., 508 U.S. 307, 315 (1993).
This Court held that a statute passes constitutional muster if it is rationally related
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 19 of 26
10
to a legitimate state interest. Merrifield v. Lockyer, 547 F.3d 978, 984 fn. 9 (9th
Cir. 2008). For example, consumer interests and regulation of public health are
considered legitimate government interests. Id. at 986. However, if the statute is
unrelated to these interests, [it] lacks a rational basis. Id. (emphasis in original).
Additionally, a statute constitutionally can prohibit an individual from
practicing a lawful trade only for reasons related to his or her fitness or
competence to practice it. Griffiths v. Superior Court, 96 Cal. App. 4th 757, 770
(2002) (citing Hughes v. Bd. of Architectural Examrs, 17 Cal. 4th 763, 788 (Cal.
1998)). A licensing statute is constitutional only if there is a showing of a nexus
between the licensees conduct and the licensees fitness or competence to
practice. Marek v. Bd. of Podiatric Med., 16 Cal. App. 4th 1089, 1096 (1993).
Government regulation satisfies judicial review of the due process rational basis
standard as long as it can be rationally surmised or hypothesized that the enactment
is procedurally fair and reasonably related to a proper legislative goal and public
interest. In re Arthur W., 171 Cal. App. 3d 179, 185 (1985).
The Talent Agencies Acts prohibition on unlicensed procurement of
employment is without a rational basis. It is distinguishable from licensing regimes
that are held to meet due process standards such as, for example: medical care
licensing, see, e.g., Griffiths, 96 Cal. App. 4th at 769-70 (holding that enforcing
conduct standards related to convictions involving alcohol consumption as part of
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 20 of 26
11
medical licensing requirements were valid exercises of state police power);
psychological treatment, see, e.g., Rand v. Bd. of Psychology, 206 Cal. App. 4th
565, 582, 590 (2012) (holding that practicing forensic psychology is subject to
professional conduct standards and licensing regulations and that the potential for
harm to psychological services to consumers provides the necessary nexus even
without harm having occurred); pest-control, see, e.g., Merrifield, 547 F.3d at 988
(California has a legitimate public health interest in requiring all structural pest
controllers to obtain a license [and be trained].) (emphasis in original); gun sales
are justifiably regulated, e.g., Baer v. City of Wauwatosa, 716 F.2d 1117, 1123 (7th
Cir. 1983) (concluding the substantive validity of governmental licensing
requirement given the danger to the public innate in gun sales); and interior
designing poses safety risks justifying regulation, see, e.g., Lock v. Shore, 634 F.3d
1185, 1196 (11th Cir. 2011) (upholding Floridas licensing requirement was
upheld based on a legitimate state interest in protecting public safety by ensuring
that interior designers were trained to comply with fire and building codes)
(emphasis added). Lastly, this Court found that mental health services for minors is
justifiably regulated and meets rational basis review because of the governments
interest in the protecting the well-being of minors. Pick Up v. Brown, No. 12-
17681, 13-15023, 2013 WL 4564249, at *11-12 (9th Cir. Aug. 29, 2013). The
common denominator in these holdings is health, safety, or training requirements.
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 21 of 26
12
Additionally, they protect against grave harm that may result from these services
being done improperly; hence, the regulations satisfy the nexus requirement under
rational basis review. These justifications do not apply to the Labor
Commissioners enforcement of the TAA against managers, producers, or business
partners who happen to secure engagements that benefit their clients.
The Labor Commissioner has equated the TAA requirement to that for real
estate and liquor sales. Derek v. Callan, No. TAC 18-80 (Cal. Lab. Commr Jan.
14, 1982). The harms resulting from the reckless unregulated sales of homes are
indeed life-altering. The same is true for sales of potentially deleterious substances
such as liquor. Unlike the aforementioned licensing requirements that involve
health, safety risks, training and/or education, however, the TAA has no such
requirement. No similar risks of harm result from unlicensed procurement of an
opportunity from which talent benefits. The individual artist is enriched indeed,
albeit unjustly. The artist class as a whole will not. Marathon, 42 Cal. 4th at 998.
Additionally, the fact that recording contracts are exempt from the Acts
alleged protections reveals the irrationality of the remaining ban on procurement.
Firstly, the music industry offers as much potential harm as any other
entertainment sector, and secondly, it is irrational that the same individual artist
may be able to have his manager procure a recording contract, but not a public
performance or appearance in film or on the Internet that furthers his career.
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 22 of 26
13
The Talent Agencies Act is more similar to licensing regimes held to be
irrational and unconstitutional. Rules of construction require interpreting statutes to
ensure that they meet the Legislatures intent to be Constitutional. Griffiths, 96 Cal.
App. 4th at 769. Consequently, not all licensing regimes are upheld as
Constitutional. This Court held that it was unconstitutional for the state to require a
hair stylist to get a cosmetology license. Merrifield, 547 F.3d at 984, 987 (this
Court agreeing that the only imaginable justification [of the regulation] was
economic protectionism of the cosmetology industry which it deemed
illegitimate); see Cornwell v. California Bd. of Barbering and Cosmetology, 962
F. Supp. 1260, 1274 (S.D. Cal. 1997) (holding that requiring a masseuse to get a
cosmetology license to cover some overlapping services, or otherwise bar her from
working as such, was a deprivation of her property rights, a restriction of her
liberty, and unconstitutional); see also, Whitcomb v. Emerson, 46 Cal. App. 2d 263
(Cal. 1941) (holding that an unreasonable interference with ones livelihood in a
legitimate business is an unconstitutional deprivation of ones property rights and a
restriction on ones liberty). Whitcomb, though older, has not been overruled.
This Court approved of the Sixth Circuits determination that the
governments inclusion of casket merchants within the licensing requirement for
funeral directors violated due process. Merrifield, 547 F.3d at 985 (citing
Craigmiles v. Giles, 312 F.3d 220, 222 (6th Cir. 2002)). The Court concluded that
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 23 of 26
14
the licensing law imposed a licensing requirement burden upon casket merchants
merely to prevent economic competition with funeral directors. Craigmiles, 312
F.3d 220 at 225. As such, the law failed rational basis review. Merrifield, 547 F.3d
at 985. Accordingly, it is exactly this type of protectionism at issue that prohibits
managers from procuring employment under the TAA. One attorney who has
frequently written about the inequities the Act observed that the Association of
Talent Agents (ATA) is very vocal about maintaining the TAAs contemporary
enforcement and even challenged an amendment proposed by the Beverly Hills
Bar Association to exempt lawyers from the Act. McPherson, supra, at 48.
Prohibiting unlicensed employment procurement by talent managers or
producers is not a legitimate government interest because there is no nexus
between the regulation and the harm. The harm that the TAA seeks to prevent is
separate from the act of procurement. The protection only relates to the means of
procurement, which may still be regulated by the Act. There is no protection to
anyone, other than talent agencies, arising from disgorgement of fees that would
otherwise be perfectly lawful. Under these circumstances, the licensing scheme
exceeds its authority under rational basis review when it unjustly enriches a
beneficiary of services that are performed no more or less harmfully, with or
without a Talent Agencies license. When the contract between manager and artist
would otherwise be lawful, it should not be voided simply because the manager
Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 24 of 26
15
does not have a talent agency license that does not involve any special training or
education. In New York, the other major entertainment industry jurisdiction, the
General Business Law regulating employment agencies does not promulgate a
private right of action; the remedies are purely administrative. See, Rhodes v. Herz,
84 A.D. 3d 1 (N.Y. App. Div. 2011). Additionally, there is a safe harbor for
incidental procurement in the business of managing entertainments, exhibitions or
performances. N.Y. Gen. Bus. Law 171(8).
CONCLUSION
The Talent Agencies Act was intended to protect artists; it should not be
sanctioned as a weapon against their managerial representation, producing or business
partners, or lawyers. The prohibition on unlicensed employment procurement is wholly
disconnected from the harms that the Legislature is rationally interested in protecting.
There is nothing rational about voiding contracts that were freely bargained for because
procurement was unlicensed when the requisite license requires no training or education
whatsoever. This Court should find the prohibition on procurement of employment to be
inconsistent with rational basis review and unconstitutional.

Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 25 of 26
16
This brief was researched and written by Orly Ravid, a student in the Amicus
Project Practicum at Southwestern Law School, under the supervision of the undersigned.
Dated: October 16, 2013 Respectfully Submitted

______________________
s/ Robert C. Lind
s/ Michael M. Epstein

Pro bono attorneys, THE AMICUS PROJECT AT SOUTHWESTERN LAW SCHOOL


Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 26 of 26