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July 2022
Vol. 21, No. 10

Music and the Law

An interview with California-Licensed Talent Agent Emily Bartell

by Brian WitkinJune, 2022

1. BACKGROUND

Emily Bartell

When you hear the words “talent agent” a variety of images may come to your mind—a man dressed in a suit furiously yelling on an intense phone call, a person on a tour bus managing the set times for an artist, or a sophisticated-looking individual alongside an actor behind the theatre stage. This is partly because the roles of talent agent and manager are often confused and, even more, conflated with other titles used in the industry, such as entertainment attorney, and tour manager.
Recently, I sat down with my friend and licensed California talent agent, Emily Bartell to discuss the role of a talent agent.
2. TALENT AGENTS, GENERALLY SPEAKING
Emily, what exactly does a talent agent do?
California law defines a talent agent as a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists. As a talent agent, you secure work and fair contracts, make sure of the conditions for the booking, make sure not to overbook, make sure not to book in the same area of town too close to another booking, and help promote.
Talent agents earn a commission on the income of the artist, whether it be a concert, tour, or other event. Since their commission rates are regulated by the Labor Commissioner (typically around 10%), agents usually have a roster of artists that they work with, as opposed to just one or two. In the music business talent agents typically book live performances and tours.
It is important to understand the specific role of a talent agent as separate from a manager. An artist may be an actor, musical performer, director, writer, cinematographer, composer, or a model.
3. LICENSURE REQUIREMENTS

Slack Key ‘Ohana, one of the bands Emily has booked at Navajo Live.

Essentially, you will need a talent agent license if you are helping an artist secure any type of employment opportunity. As mentioned above, the definition of artists is very broad (i.e., not just musicians) and so is how the labor board defines soliciting and procuring employment. If you are arranging and negotiating opportunities for the artist, you are also acting within the scope of an agent. As explained above, agents usually have an incentive to represent more established artists that are decently recognized with a significant body of work, rather than artists who are just getting their feet off the ground.
In the state of California, talent agents must acquire a license from the Labor Commissioner and meet the requirements as defined in the California Labor Code § 1700. An individual or company seeking to apply for a license can do so either online or by mail and must pay annual license fees among other requirements.
To obtain a license, you must apply online or via mail and be able to document a variety of information, such as proof of identity, personal history, contract with the artist, fee schedule, and workers’ compensation insurance, to name a few. In addition, you must deposit a surety bond in the sum of $50,000, which requires additional financial information. Finally, you must pay a filing fee of $25 and an annual fee of $225 and an additional $50 for every branch office if you are located in more than one location in California.
4. HOW TO GET AN AGENT

What do you look for in an artist?
Well, obviously I’m looking for talent. Is there something about their sound that makes me want to hear more? Is the band connecting to the audience? Are they bookable?
If a band is just starting out, do they understand that they need to put in the work? You can tell by watching and listening to a band if they are just playing for the gig or are a regimented outfit, a band that has a regular schedule of practice and rehearsals. They understand going around town and playing out at all the open mics in town, playing on off nights, playing to build their brand. Or do they expect to get choice gigs right away, without building their following.  
Sometimes you will come across a band that you just get a feeling about with their music, but their presentation is holding them back. Maybe the band name doesn’t work, or the stage appearance doesn’t bring out the energy of the music. Is the band mature enough to discuss making some changes?
What do you recommend to musicians looking to get an agent?
I think the band must first decide what they want as a long-range goal for the band. Do they want to play gigs in between working their day jobs? Are all the members of the band committed to the band at the same level? Are they intent on being a local band or envision recording and touring? They can find gigs on their own, but first they need to build their brand by playing out. If interest is built, the band will start getting calls to play. Some bands have the time to do their own bookings while others realize they can’t do it all, they don’t want to deal with the calls and negotiating, so then they might decide to retain an agent
5. MANAGERS
How does the role of a manager differentiate from that of a talent agent?
A manager should have a belief in the band’s vision. The manager must do more than just making sure the band gets booked. The manager should be interested in discussing the bands career strategies, looking at their long-term career goals to help them plan for the future, but they also need to be their advocate for their personal mental and physical health while handling the day-to-day tasks for the band (i.e., negotiating contracts; scheduling shows, interviews, and appearances; collecting payments, enforcing contracts, etc.…). And another area the manager should handle is as the go between for any interpersonal conflicts that may arise among band members. “
So, the role of a manager is much broader than that of a talent agent. Managers are more involved in the day-to-day affairs of the artist and generally advise their clients on all aspects of their careers, even in the beginning stages.
Managers do not have to be licensed by the state; instead, their relationship is usually governed by a management contract between the manager and the artist. Most important, a manager cannot procure employment for an artist under the law. It they do, there can be severe consequences.
6. RAMIFICATIONS OF BOOKING WITHOUT A LICENSE
If you are a manager or other person acting as an agent (i.e., engaging in any type of procurement activity), who has not obtained the proper license, your client is permitted to file a complaint with the Labor Commissioner, who has the power to rescind the representation contract and order the disgorgement of all commissions that were paid in violation of the law. This provides an opportunity for artists to get out of their deals with managers, labels, or any other entity that is procuring employment for them without holding a license. This is a big deal, and the Labor Board typically gives great deference to artists in the context of booking without a license.
If you are a manager that decides to engage in the business of procuring employment for your client, then you must obtain a license and be subject to the requirements and payment caps that come along with it. Situations like this become sticky when managers are pressured by their artists to engage in this type of work, especially when a manager is seeking the best opportunities for the artist and is the most familiar with the artist’s work and goals. So, consider hiring a music attorney to consult with if there’s any ambiguity or if you need professional assistance obtaining a license.
 
ABOUT BRIAN WITKIN
Brian Witkin runs a boutique entertainment law firm in San Diego. He is also an award-winning musician, producer, and CEO of Pacific Records. Brian has spent nearly two decades in the record business and is a Grammy® Voting Member of the Recording Academy. Brian’s father, Joe Witkin, was the original keyboard player of Sha Na Na, who performed at the iconic Woodstock Festival in 1969.
Note: This article is for general informational purposes only and does not establish an attorney-client relationship. The information is deemed reliable but not guaranteed. Every situation is different, and the general information contained in this article may not apply to your specific situation. The author and publisher assume no responsibility for actions taken based upon the contents of this article. Seek the advice of counsel for your specific situation.
©Law Offices of Brian A. Witkin 2022.
 

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