Talent Representation & Production Contracts
Everything you need to know about talent representation and talent production contracts, and what we can do as your attorney to ensure you’re protected
The entertainment business is one filled with intermediaries; agents, managers, and lawyers vying for representation of the next major talent. Unfortunately, it is also a business in which talent often gets the short end of the stick due to wolfish representatives and anxious artists who simply want a chance to have their talents seen or heard.
Whether you are an artist seeking representation or an up and coming rep looking to sign your first major star, let us help ensure you’re protected. We have knowledge and experience negotiating representation and drafting talent representation contracts for personal managers, agents, and business managers.
Before signing anything, have us take a look to advocate your position and ensure you’re protected. Equally important, if you think you got a raw deal from a representative, send us the contract so we can assess your options. The terms of your contact may be unconscionable, and therefore, void.
Here is a brief overview of the major talent representatives in the industry including what you should expect from their representation;
An agents job is to find work for their client. Agents should never get more than 10% of a client’s bookings unless they are somehow filling the role of another representative such as a personal manager.
Agents generally need to be professionally licensed in their respective states. This is the case in both California and New York, where the majority of talent agents reside. However, Michigan does not require a professional license for agents. You can find a state-by-state breakdown of license requirements here. Never sign with an unlicensed agent if state law requires so.
Although personal managers can sometimes resemble agents, they are much more concerned with career development as well as day-to-day activities of their clients. Personal managers are typically paid 15 to 20% of the artist gross income. The definition of “Gross income” can mean many things depending on your contract. You need a lawyer knowledgeable in the many nuances involved in these contracts to make sure you are protected.
Business managers are solely concerned with the financial aspects of their client’s careers. Their functions can range from paying bills to advising on investments. Business managers typically receive 5% of artist’s income.
Of all representatives, business managers have a strong fiduciary obligation to the client. If you have been contacted by a business manager for representation or you believe your business manager has breached their fiduciary duty contact us now!
Important Talent Contract Considerations & Clauses in Production Agreements
Talent production contracts can be extremely complex. Often times the lack of or poor quality of certain contract clauses and provisions can mean litigation, or worse, a judgment in the other parties favor. Whether you are a production company, record label, publishing company or contracted talent, we can help ensure that your talent production contracts cover every angle and ensure you’re fully protected.
All major record, publishing, and movie deals will include some form of a delivery clause. These clauses have been the subject of substantial litigation and need to be looked at by a keen and experienced eye. Before signing or having your talent sign your contract, you need to understand the delivery expectations. Let us draft or review your talent contracts to make sure you’re protected!
Often times, the artist is forced to sign away substantial or all of their creative control. Let us advocate on your behalf!
The entertainment industry is unique in that service contracts and releases with minors are common place. It’s important to keep in mind that minors have the right to disaffirm their contracts. To protect the interests of both minors and entertainment companies, some states, including California and New York, have enacted statutes specifically tailored towards contracting with minors for entertainment purposes. Under these statutes, a court will either approve or disapprove of the contract. If the contract is approved, then the minor loses his or her right to disaffirm it.
These contracts require strict scrutiny by a knowledgeable attorney. This is especially true when involving guardians and parents of the minor. Companies employing minors are also subject to a number of administrative restrictions to protect minor’s health and safety which we can also provide counsel on, as these regulations are state specific.
California is unique in that it limits the duration allowed to contract for in regards to personal service contracts, which is the type of contract talent contracts are. These are limited to 7 years.
Furthermore, California has a specific law for termination rights which primarily differs in that a “material breach” is required in order for the non-breaching party to rescind the contract.
Here are some of the more important provisions regarding termination that are usually included in talent contracts;
Pay Or Play Clause: Often included in talent agreements, a pay or play clause gives a company the right to discharge talent by paying some liquidated some.
Right To Cure: This provision requires the party alleging a breach to notify the other party of the alleged breach, and only if the breach is not cured within the stated period of time will there be deemed to have been a breach of the contract.
Force Majeure: This provision allows for temporary suspension of obligations in the case of delays caused by any act of God, acts of the government or any order, regulation, or action by any labor union or association of artists, etc.
While oral agreements are not recommended, they occur on a regular basis in the entertainment industry. However, an oral contract is unenforceable if it cannot be performed in less than a year pursuant to the statute of frauds.
However, the transfer of copyright ownership is never valid unless in writing and signed by the owner. This includes exclusive licenses, so extensively all book publishing, music publishing, record, and motion picture and television acquisition agreements. This rule does not apply to non-exclusive licenses which can be contracted orally.
Furthermore, if it is established that the parties did not intend their agreement to be binding until in writing and signed, there is no enforceable oral agreement.
Because so much oral and non-formal deal-making takes place before the signing of written contracts in the entertainment industry, the parole evidence rule often becomes very important in entertainment contracts. The parole evidence rule forbids parties from offering proof of a prior negotiation or oral statement that contradicts a clear unambiguous term of a written agreement. This makes it necessary to always have unambiguous contracts written by experienced and knowledgeable lawyers.
Whether a company can seek injunctive relief against talent requires very specific contractual language that is state specific. Always have us take a look first or draft talent contracts to suit your needs!
Giving credit where credit is due is an extremely important aspect of the entertainment industry and can define careers. Because of this, contracting for proper billing is extremely important.
Union and guild member credits are often decided pursuant to internal procedures. The Writers and Producers Guilds both have a thorough arbitration processes for determining credits for their members.
In the absence of a contractual clause concerning credit, the general rule is that there is no statutory or common law right to claim credit. The only exception to this is misattribution of credit which can violate the Lanham Act. This makes it ever more important to have a knowledgeable attorney at your side.
If you have not been credited and should have been, contact us now!
A most favored nations clause provides that an amount, a definition, or another aspect of a contractual relationship will be computed or defined in at least as favorable a manner as the computation or definition given to one or more third parties.
Litigation can be costly, bad for business, emotionally taxing, and overall destructive to the creative process. Because of this, an arbitration clause should always be on the table. Let us draft or review yours!
Contract Rescission or Reversion
Getting a talent contract rescinded can be very difficult. However, it can be done in the case of a total failure of consideration on behalf of the other contracting party. Contact us now to see if your contract is eligible for rescission!
Injunctions are unfortunately a common tool in any entertainment litigator’s toolbox. They can force an artist to return to work, and negative injunctions can even prevent individuals from working elsewhere. If you are facing an injunction or you would like to file one, contact us now for a free consultation!
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