Focus
LOS ANGELES DAILY JOURNAL z FRIDAY, JUNE 15, 2007 z PAGE 7
Entertainment Law
Whither Personal
Managers?
By Rick Siegel
A
n almost-incessant
debate has been
raging since Divi-
sion One of the 2nd
District Court of
Appeal determined
in Marathon Entertainment v.
Blasi that personal management
contracts “may be enforced un-
der the doctrine of severability
of contract” in the adjudication
of Talent Agencies Act disputes.
That debate has intensified with
the California Supreme Court’s
decision to accept the case for
review.
Almost nothing, however, has
been written about the other ques-
tion the court accepted for review:
“Are the licensing requirements of
the Talent Agencies Act (Labor
Code Section 1700 et seq) ap-
plicable to personal managers as
well as talent agents?” The quiet
about that question is inexpli-
cable because, regardless of how
the court rules, the decision will
have the most important impact
on the day-to-day workings of
Hollywood of any legal matter in
recent years.
An examination of the legisla-
tive history related to the passage
of California Assembly Bill 2535
(Talent Agencies Act of 1978)
shows that the original intent of
the bill was to incorporate tal-
ent agents, booking agents and
personal managers into a single
licensing scheme.
The act went through
‘Marathon
several drafts before
passage: in the Entertainment
fi rst four, personal
managers were to v. Blasi’ will
be regulated; in the have the most
fi fth and fi nal draft
of the bill — the ver- important
sion that was enact- impact on
ed — all references
to the occupation of the day-to-
personal manage- day workings
ment were excised.
The Sept. 8, 1978, of Hollywood
Enrolled Bill Report
of any legal
of AB 2535 notes,
“Personal managers, matter in
included in the scope
of earlier versions of recent years.
the bill, have been
excluded from the current bill.”
Marathon contends that the inclu-
sion and subsequent rejection of
the proposed statutes that would
have incorporated managers into
the tenets of the act exclude them
from such regulation.
Besides some of the elemental
tenets of contract and statutory
construction, a century of case
law buttresses Marathon’s point
of view. The most notable is that
“[t]he rejection by the Legislature
of a specific provision contained
in an act as originally introduced
is most persuasive to the conclu-
sion that the act should not be
construed to include the omitted
provision.” Beverly v. Anderson, 76
Cal.App.4th 480 (1999).
As represented by Blasi and
the amicus briefs presented to
the court by the Association of
Talent Agents and a consortium
of the various entertainment labor
guilds (SAG, AFTRA, WGA and
DGA), there are two contrary
arguments.
Their fi rst argument parallels
Waisbren v. Peppercorn Produc-
tions, 43 Cal.App.4th 246 (1995),
the case law guiding Talent
Agencies Act court and Labor
Commission determinations.
This approach’s root contention
is that the act regulates not an oc-
cupation but the defi ned activity of
what a talent agent does: “a person
or corporation who engages in the
occupation of procuring, offering,
promising, or attempting to pro-
cure employment or engagements
for an artist or artists.” Labor
Code Section 1700.4 (a). Follow-
ing Waisbren, anyone who at-
tempts to procure employment for
an artist, even once, fi rst must get
a California talent agency license,
irrespective of the procurer’s
claimed occupation.
However, Waisbren overlooks
the Legislature’s choice to call it
the Talent Agencies Act, not the
“Artists Procurers Act” or the
“Talent Representatives Act,”
either of which would have incor-
porated anyone who procured.
The Legislature specifically chose
not to regulate everyone who pro-
cures, focusing instead on those
whose primary fiduciary respon-
sibility is procurement.
The legislative history provides
the needed clarity:
In creating the Tal-
ent Agencies Act,
the Legislature
changed the defi -
nition of the regu-
lated occupation
from what it was in
the set of statutes
the act replaced,
the Artists’ Manag-
ers Act. That act
regulated those
“in the occupation
of advising, coun-
seling or directing
artists” and those
who “procure for
an artist only in
connection with
and as a part of their duties and
obligations, … while the TA A
regulates those in the “occupation
of procuring” and those who “may,
in addition, counsel or direct art-
ists in the development of their
careers.”
I
n ignoring that specificity,
Waisbren confl icts with the
legal principle of ejusdem ge-
neris: “‘Where general words
follow the enumeration of par-
ticular classes of persons or things,
the general words will be construed
as applicable only to persons or
things of the same general nature
or class as those enumerated. [It]
is based on the obvious reason that
if the [writer] had intended the gen-
eral words to be used in their unre-
stricted sense, [he or she] would
not have mentioned the particular
things or classes of things which
would in that event become mere
surplusage.’” Lawrence v. Walzer
& Gabrielson, 207 Cal.App.3d 1501
(1989), quoting Scally v. Pacific Gas
& Electric Co. 23 Cal.App.3d 806
(1972).
“Ejusdem generis applies wheth-
er specific words follow general
words in a statute or vice versa.
In either event, the general term
or category is ‘restricted to those
things that are similar to those
which are enumerated specifi -
cally.’” Martin v. Holiday Inns Inc.,
199 Cal.App.3d 1434 (1988); 2A
Sutherland, Statutory Construc-
tion (4th ed. 1984) Intrinsic Aids,
Section 47.17, p. 166.
As per the principle of ejusdem
generis and the above holdings of
Lawrence and Martin, once the
Legislature enumerated the “par-
ticular class” of talent agents, the
words related to the act should be
“construed as applicable only to”
those whose occupation is talent
agenting.
The other argument tacitly
admits that managers had been
Successful
business habits
excluded from regulation in 1978.
However, managers later became
subject to the act’s regulation with
begin before you
are successful.
the Legislature’s ratification of
the recommendations of the 1984
California Entertainment Com-
mission, a layperson committee
created to study and refi ne the
existing act and “transform that
statute into a model statute of its
kind in the United States.” Report
T
of the commission.
he way you manage your practice
T
he report itself is filled
with contradictions, at
one point saying “the
when you’re starting out will affect
industry would be best
served without the
the success of your entire career. That’s
imposition of civil or criminal sanc-
tions for violation of the Act,” later why one of the most profitable routines a
stating that procurement should
be the sole domain of the licensed new attorney can begin is to start each
agent, and elsewhere declaring that
“there is no rationale or practical business day with the Daily Journal. You’ll
justification for the enactment of a
law requiring the licensing of per- be starting with the state’s leading source
sonal managers.”
The two statutes relevant to pro-
curement are Labor Code Section of daily information for the legal
1700.5, which demands that those
in the occupation of talent agent- community and you’ll be better prepared
ing fi rst obtain a talent agency li-
cense, and the coupling defi nition for the trials and decisions your new
statute, Section 1700.4(a). The
commission left Section 1700.5
untouched, and its only contribu-
career brings you.
tion to Section 1700.4(a) was rec-
ommending the sunset provisions
of AB 997 be deleted, leaving the
defi nition of ‘talent agent’ exactly
as the commission found it. With
READ THE DAILY JOURNAL EVERY DAY,
no substantive change to the laws
themselves, the commission’s BECAUSE KEEPING INFORMED IS
other suggestions are irrelevant.
The relevant legislative history, THE WAY LAWYERS BECOME
and therefore intent, is what was
discussed, debated and incorpo- LAW PROFESSIONALS.
rated into the Talent Agencies Act
of 1978.
These understandings do not
moot the importance of the court’s
consideration of severability. As
the act is enforced, a licensed
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talent agency that does not have
the statutes conspicuously posted
department at 866/531-1492 and start
(and almost none of them does) is
in violation of the act. And any vio- delivery immediately. Or log on to
lation, even one as immaterial as
that, disgorges the agency/client www.dailyjournal.com and sign up online.
contract, no matter that contract’s
worth. See Wilson v. Sirens Model
Management, TAC: 13/14-96. The
original rationale for the creation
of the act — to ensure a separa-
tion between those who employ
artists and those who serve as
their employment counselors and
avoid obvious confl icts of interest
— is needed today as much as
ever. However, the Legislature
has spoken on this issue, and the
courts must listen; without new www.dailyjournal.com
legislation, personal managers
must remain free of the act’s re-
straints.
Rick Siegel is a personal manager
and president of Marathon Enter-
tainment.