2009 Legislation Affecting “Fee-Related Talent Services” and “Advance Fee Talent Services”
AB 1319 (Chapter 286, Statutes of 2009), with an effective date of January 1, 2010, repeals and adds Chapter 4.5, commencing with Section 1701) of Part 6, Division 2, of the Labor Code. The Bill rewrites California’s Advance-Fee Talent Services Act eliminating the existing provisions governing Advance-Fee Talent Services and creating a new category of talent services subject to regulation as well as requirements for performance by those talent services.
Chapter 4.5 creates a new category of “Fee-Related Talent Services”. Article 1 of the chapter provides detailed definitions outlining the requirements of activities subject to regulation as follows:• Labor Code section 1701(b): "Audition" means any activity for the purpose of obtaining employment, compensated or not, as an artist whereby an artist meets with, interviews or performs before, or displays his or her talent before, any person, including a producer, a director, or a casting director, or an associate, representative, or designee of a producer, director, or casting director, who has, or is represented to have, input into the decision to select an artist for an employment opportunity. An "audition" may be in-person or through electronic means, live or recorded, and may include a performance or other display of the artist's promotional materials
• Labor Code section 1701(d): "Fee" means any money or other valuable consideration paid or promised to be paid by or on behalf of an artist for services rendered or to be rendered by any person conducting business under this chapter. "Fee" does not include the following:
- (1) A fee calculated as a percentage of the income earned by the artist for his or her employment as an artist.
- (2) (A) Reimbursements for out-of-pocket costs actually incurred by the payee on behalf of the artist for services rendered or goods provided to the artist by an independent third party if all of the following conditions are met:
- (i) The payee has no direct or indirect financial interest in the third party.
- (ii) The payee does not accept any referral fee, kickback, or other consideration for referring the artist.
- (iii) The services rendered or goods provided for the out-of-pocket costs are not, and are not represented to be, a condition for the payee to register or list the artist with the payee.
- (iv) The payee maintains adequate records to establish that the amount to be reimbursed was actually advanced or owed to a third party and that the third party is not a person with whom the payee has a direct or indirect financial interest or from whom the payee receives any consideration for referring the artist. To satisfy this condition, the payee shall maintain the records for at least three years and make them available for inspection and copying within 24 hours of a written request by the Labor Commissioner, the Attorney General, a district attorney, a city attorney, or a state or local enforcement agency.
- (B) A person asserting a defense based upon this paragraph has the burden of producing evidence to support the defense.
- "Talent listing service" means a person who, for a fee from, or on behalf of, an artist, provides or offers to provide, or advertises or represents itself as providing, an artist, directly or by referral to another person, with any of the following:
(1) A list of one or more auditions or employment opportunities.
(2) A list of talent agents or talent managers, including an associate, representative, or designee thereof.
(3) 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.
(4) Storage or maintenance for distribution or disclosure to a person represented as offering an audition or employment opportunity, or to a talent agent, talent manager, or an associate, representative, or designee of a talent agent or talent manager, of either of the following: (A) an 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 (B) an artist's schedule of availability for an audition or employment opportunity. (Labor Code section 1701(g))
- "Talent counseling service" means a person who does not manage or direct the development of an artist's career and who, for a fee from, or on behalf of, an artist, provides or offers to provide, or advertises or represents itself as providing, that artist, directly or by referral to another person, with career counseling, vocational guidance, aptitude testing, or career evaluation as an artist. (Labor Code section 1701(f))
- "Talent scout" means 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 principals of a service are themselves talent scouts if they solicit on behalf of the service. (Labor Code section 1701(h))
Article 2 of Chapter 4.5, at Labor Code section 1702, provides that no person shall own, operate or refer a person to an advance-fee talent representation service. “Advance-fee talent representation service” is defined at Labor Code section 1702.1 as:
- (a)"Advance-fee talent representation service" means a person who provides or offers to provide, or advertises or represents itself as providing, an artist, directly or by referral to another person, with one or more of the following services described below, provided that the person charges or receives a fee from or on behalf of an artist for photographs, Internet Web sites, or other reproductions or other promotional materials as an artist; lessons, coaching, seminars, workshops, or similar training for an artist; or for one or more of the following services:
- (1) Procuring or attempting to procure an employment opportunity or an engagement as an artist.
- (2) Procuring or attempting to procure an audition for an artist.
- (3) Managing or directing the development of an artist's career.
- (4) Procuring or attempting to procure a talent agent or talent manager, including an associate, representative, or designee of a talent agent or talent manager.
- (b) "Advance-fee talent representation service" also means a person who charges or receives a fee from, or on behalf of, an artist for any product or service required for the artist to obtain, from or through the person, any of the services described in paragraphs (1) to (4), inclusive, of subdivision (a).
Labor Code section 1702.4 provides for exclusions from Article 2 as follows:
- (a) A public educational institution.
- (b) A nonprofit corporation, organized to achieve economic adjustment and civic betterment, give vocational guidance, including employment counseling services, and assist in the placement of its members or others, if all of the following conditions exist:
- (1) None of the corporation's directors, officers, or employees receive any compensation other than a nominal salary for services performed for the corporation.
- (2) The corporation does not charge a fee for its services, although it may request a voluntary contribution.
- (3) The corporation uses any membership dues or fees solely for maintenance.
- (c) A nonprofit corporation, formed in good faith for the promotion and advancement of the general professional interests of its members, that maintains a placement service principally engaged to secure employment for its members with the state or a county, city, district, or other public agency under contracts providing employment for one year or longer, or with a nonprofit corporation exempted by subdivision (b).
- (d) A labor organization, as defined in Section 1117.
- (e) A newspaper, bona fide newsletter, magazine, trade or professional journal, or other publication of general circulation, whether in print or on the Internet, that has as its main purpose the dissemination of news, reports, trade or professional information, or information not intended to assist in locating, securing, or procuring employment or assignments for others.
- (f) A public institution.
Article 3 of the Bill, beginning at Labor Code 1703,
- Requires specific language and provisions that must be included in all contracts;
- Provides for a 10 day cancellation period;
- Requires talent services to file a $50,000 bond or deposit in lieu of the bond required pursuant to section 995.710 of the Code of Civil Procedure with the Labor Commissioner; and
- Makes a willful violation of its provisions a misdemeanor and subject to a civil action
See AB 1319 for full text of Bill.