Does the Talent Agencies Act apply to attorneys?

September 21, 2016

By Rick Siegel
In the first law review article published after the 1978 enactment of the
Talent Agencies Act, attorney Neville Johnson wrote, "Two questions that
remain unresolved after passage of the TAA are when, if ever, 'procurement
activity' is permissible by an unlicensed 'talent agent,' and what quantum of
activity constitutes 'procurement activity.'" Johnson, "The Personal Manager in
the California Entertainment Industry," 52. S. Cal. L. Rev. 375 (1979).
Almost two-score later, those same questions remain. Of direct interest to
the transactional entertainment law community: whether attorneys have the same
risks of violating the act as producers, personal managers and other
representatives who work with artists but for one reason or another have not
obtained a talent agency license.
This concern became a legitimate fear after Solis v. Blancarte, the 2013
TAA determination in which the California labor commissioner determined that
a transactional attorney helping his client maximize his employment opportunity
had indeed violated Labor Code Section 1700.5 ("No person shall engage in or
carry on the occupation of a talent agency without first procuring a license
therefor from the Labor Commissioner."). Solis cites Marathon Entertainment v.
Blasi, 42 Cal. 4th 974, 986 (2008), in finding that the act "regulates conduct, not
labels, it is that act of procuring (or soliciting), not the title of one's business, that
qualifies one as a talent agency and subjects one to the Act's licensure and
related requirements." "As the foregoing makes perfectly clear," the court said,
"anyone who procures or solicits engagements for an artist is carrying on the
occupation of a talent agency and must be licensed."
However, an examination of the court's determination shines a spotlight
on what remains unclear, one of those decades-long lingering questions: Did
attorney-defendant in Solis, Blancarte, in point of fact procure or otherwise
solicit employment opportunities for his sportscaster client?
Per the determination, the parties relationship began when Blancarte
would "on certain occasions provide [ ] legal services" and "management type
services" to Solis in connection with the artist's "interest in breaking into
network television."

According the ruling, "KNBC approached [Solis] and expressed an

interest in hiring [him]." Solis then contacted Blancarte and asked him to handle
the negation of Solis' employment contact. Solis and Blancarte entered into an
engagement contract wherein Blancarte would get a 5 percent commission "on
all net monies paid to [Solis]" under the KNBC contract. "Thereafter,
[Blancarte] proceeded to negotiate an employment agreement for [Solis] with
KNBC."
Between 2002 and 2006, Blancarte "was paid the commissions due him
under the engagement contract," and Solis compensated Blancarte 5 percent
through the end of 2007 on the three-year renewal the attorney negotiated for
Solis in August 2006. At that time, Solis stopped compensating Blancarte.
The labor commissioner did not determine that Blancarte ever solicited or
procured other employment opportunities for his client, despite noting Solis'
assertion of an ESPN opportunity that "was arranged and presented" to him by
Blancarte.
However, the labor commissioner rejected Blancarte's contention that
there was no need for a talent agency license because, as a licensed attorney, "his
activities in negotiating the KNBC agreements on behalf of petitioner should be
treated as exempt from the licensing requirements of section 1700.5." The labor
commissioner said "[t]he provisions of the TAA do not contain or recognize any
such exemption. Moreover, [Blancarte] has provided no authority that would
support the propriety of applying or creating such an exception."
Unlike the State Contractor's Act - the licensing scheme the Talent
Agencies Act is most often compared to - the TAA does not specify what
activities require licensure. Just the opposite, in Marathon, the California
Supreme Court noted how "[t]he Act contains no definition, and the Labor
Commissioner has struggled over time to better delineate which actions involve
mere general assistance to an artist's career and which stray across the line to
illicit procurement."
There is, however, a more elemental authority, showing Blancarte may
not have needed an exemption at all, because his actions had nothing to do with
procurement: a dictionary:
"If the words used may be made reasonably certain by reference to the
common law, to the legislative history of the statute involved, or to the purpose
of that statute, the legislation will be sustained ... ; and a standard fixed by
language which is reasonably certain, judged by the foregoing rules, meets the
test of due process notwithstanding an element of degree in the definition as to
which estimates might differ. Further, even though all statutes regardless of
nature must be sufficiently clear to provide fair notice of prohibited conduct:

Reasonable certainty is all that is required. A statute will not be held void for
uncertainty if any reasonable and practical construction can be given its
language. It will be upheld if its terms may be made reasonably certain by
reference to other definable sources." Wachs v. Curry, 13 Cal. App. 4th 616,
627-28 (1993) (internal citations and quotations omitted).
The TAA's defenders use Wachs to silence its critics, noting how, "[n]one
of these commentators have suggested, however, the term 'procure' is so lacking
in objective content as to render the Act facially unconstitutional."
A lawsuit brought by the National Conference of Personal Managers is
working through the 9th U.S. Circuit Court of Appeals, claiming, among other
things, that Section 1700.4(a) is in violation of the due process clause of the 14th
Amendment to the U.S. Constitution. The appellees' principal brief, submitted
by Attorney General Kamala Harris for Labor Commissioner Julia Su, in part
depends upon Wachs reliance of a basic dictionary definition to solidify their
position: "As the court in Wachs recognized, the term 'procure' is not an 'esoteric
or complicated term [ ] devoid of common understanding.' United States v.
Osinger, 753 F.3d 939, 945 (9th Cir. 2014)." The brief notes how the Wachs
court found that to "'procure' means 'to get possession of: obtain, acquire, to
cause to happen or be done: bring about.' Id. at 628; see also Black's Law
Dictionary (10th ed. 2014) (defining 'procure' as 'to obtain (something)')."
The attorney general's brief notes how, "[b]ecause the terms 'procuring'
and 'employment' are not defined in the TAA, courts must construe them
"according to [their] ordinary, contemporary, common meaning." Human Life of
Wash. Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir. 2010) (citations omitted).
Likewise, the term "negotiate" is neither esoteric nor complicated, devoid
of meaning, and thus should be construed according to its common meaning: to
"(1) try to reach an agreement or compromise by discussion with others "his
government's willingness to negotiate" synonyms: discuss terms, talk, consult,
parley, confer, debate. (2) find a way over or through (an obstacle or difficult
path). "there was a puddle to be negotiated" synonyms: get around, get past, get
over, clear, cross." Oxford Dictionary of Current English (2009).
These two terms are clearly different: "Procure" is related to getting,
bringing about, creating an opportunity, while "negotiation" has to do with
refining and finding agreement to the specific terms of an opportunity that has
already solicited. Thus, as borne out by a simple check of a thesaurus, the terms
"procure" and "negotiate" are in no way synonymous (see, e.g.,
http://www.thesaurus.com/browse/negotiation).

Had this argument been forwarded in Solis, perhaps the labor

commissioner would have ruled different, finding there is no need for a license
and therefor no violation of Labor Code Sections 1700.4(a) and 1700.5 when an
unlicensed representative negotiates a deal for an artist that the representative
had not procured.
While the Legislature did not create or recognize an exemption for
attorneys in the Talent Agencies Act, there is nothing in the act barring attorneys
from engaging in one of their defined activities, being specialists in negotiation,
without the additional license. The community would be well served if the labor
commissioner chooses to examine and clarify this issue.
Rick Siegel is a former personal manager who is often engaged as an expert witness on
the history, construction and application of the Talent Agencies Act.