Manager vs. Agent
by Sue Basko, esq.
For more info, please see:
Manager vs. Agent: What's the difference? A manager helps guide a career, but does not get work for the client. An agent is the one that gets work for the client. Procuring employment is the dividing line. In California, this is a line clearly drawn in law, backed up by Labor Board cases that are somewhat shocking and counterintuitive. Music managers who did well for their clients, doing things at their request, later found themselves the subject of proceedings meant to take their earnings from them.
In this post, I talk about managers being unregulated. Managers are regulated in the sense that they cannot engage in the activities reserved for agents. If a manager procures employment, negotiates a show contract, negotiates a ticket price, etc., the manager is then (in most states) illegally acting as an agent, and can then be subject to the penalties of doing so, which can be very harsh.
For more info, See: What is a Talent Agent and How Do I Get One?
Under California law, an agent must be licensed and follow the California Talent Agency Act. Music managers that procure employment in violation of the Talent Agency Act can find their management contracts void -- or more currently, severable. They can also be subject to disgorgement of their earnings. Until recently, the disgorgement was for all the money earned by the manager; just lately, the rules have changed and the disgorgement is only for the acts of procuring employment. Still- that's pretty harsh. The idea is that the State strictly wants anyone that helps anyone in the entertainment fields secure work to be licensed as a talent agent - and they will strictly punish those who do otherwise. If you are considering being an agent, you must be licensed by the State and follow the law. If you are thinking of being a manager, you must know the law, which is quite complex, to be sure you stay within the legally allowed duties of a manager. If you cross over into the territory reserved for agents, you can find yourself in great jeopardy.
Conversely, if you are a musician or other person employing a manager, you also ought to know the law, so that you are cautious never to ask a manager to do anything that can be construed as procuring employment for you. You want to be fair, right?
In Illinois, talent agents are considered employment agencies, licensed by the State, and are subject to a special provision in the law for "theatrical employment agencies," which covers any kind of employment as an entertainer. Illinois entertainment law is not nearly as developed as California law, simply because there is so much less entertainment business being conducted in Illinois. Bear in mind that any entertainment activity taking place in California follows California law, even if the entertainer and/or his representatives are from outside the state.
The New York talent agency law is very similar to the Illinois law. Both require contracts to be pre-approved by the State, rates to be approved and posted, contracts made in triplicate with the employee/client given a copy, assurances by the agency that the employer has not failed to pay an employee or left anyone "stranded" in the past few years; Illinois specifies 2 years and New York specifies 5 years.
By "stranded," the law means leaving anyone in a different location without transportation home. That may sound antiquated, but I am aware of a performer to whom this happened just this year. A big new magic show supposedly planned a tour, promising employment to performers and crew, but the tour never materialized. At least one contracted performer quit her job and travelled to a different state to be in the show, only to discover the magic show tour was not happening. She was, in fact, stranded -- and jobless and homeless, too.
The interesting thing is that when I had read the contract for my client, a man who was to be on the magic show crew, I could tell this show tour was never going to happen. I could tell that just from reading the contract. It was obvious to me from the contract that those running the show did not know what they were doing, were unaware of the laws to which they would be subject (their first shows were to be in California), and that the whole thing was never going to happen. I told my client this from the get-go. I also warned him that if the tour did take place, and if he did work on it, to protect himself against being stranded by always carrying his identification on his person, and always having enough money on him to get home. Also, have a cell phone that will work where you are going. If going to a foreign country, keep your passport with you at all times.
There was no agent involved in offering the contracts for the magic show. The show ran ads and potential employees responded and were interviewed. If there had been an agent involved, the agent would have been responsible for checking out the past record of the magic show producers. However, as a new show producer, the magic show probably had no past record. Be aware that it can really be useful to work with an experienced lawyer, because they may be able to sniff out, as I could, that things were amiss. I could tell, just from the contracts, that the group had never run a large-scale show or tour, and that there were many laws and provisions they were unaware of. Among other things, their beginning itinerary was not even set. How would they be booking locations and selling tickets if they did not even know where they would be? I was able to give my client awareness and protection. There are many forms of protection available for the performer, but it is up to the performer to make use of them.
The legal provisions regarding agents protect you, the entertainer. In order to find you work, and collect your pay for you, and divvy it up, the person has to follow strict legal provisions. These laws came about as a remedy to assist the entertainment fields, since so many actors and musicians were ripped off by those who were supposed to be caretaking of them. And -- a good agent is there to protect you from unscrupulous employers. Using an agent gives you a double wall of protection. Using an agent and a lawyer gives you a triple wall.
If you want to move on up with your career, you must find people (manager, agent, lawyer) that know the California system and operate by those rules and laws. Otherwise, you are a hot potato. California is where most of the popular music and movie industry resides. You must be working with people that know the system, otherwise you will do things wrong, legally and practically, and harm yourself or rule yourself out. Remember -- if it is taking place in California -- even if you are from elsewhere -- it goes according to California law.
Californians are very protective of their system, especially of the agency system. Many or most agents are lawyers by training, and for good reason -- the entertainment field is complex and requires a huge amount of legal knowledge.
In California, when working with movies, agency law is supplemented by provisions set forth by SAG (Screen Actors' Guild) rules and contracts, if SAG actors or a SAG production is involved. When dealing with screenplays, the agency laws of the State are supplemented by the WGA (Writers Guild of America) rules and contracts, if a union writer or production is involved.
So what does a manager do? A manager guides your career and advises you. What are some of the basics to look for?
1) A manager must be located where you are. If a manager is in a different city and wants to work with you, the manager will ask if you can move there.
2) A manager should be able to help you get an agent, so you can get work.
3) A manager should have a limited roster of clients and not be spread too thin.
4) A manager should not charge you money upfront.
5) A manager should present a contract that is fair and within the law. Always have the contract checked out by a music or film lawyer (depending on if it is for a music or actor manager).
6) A manager should have top-notch organizational skills, writing ability, computer skills, good phone skills, and should be able to connect with people.
7) A manager is not an agent.
8) A good manager will work closely with a lawyer, who will negotiate contracts for you.
Warning: I have seen a lot of management contracts. The vast majority of them are confused and illegal, attempting to practice agency outside the law. I have seen some contracts that are shockingly unfair. Because managers are unregulated, this is the area that has all the loose-cannon screwballs in entertainment migrating to it: They cannot be agents, so they choose to be managers. Don't rush. Get a lawyer. Use caution.
A good manager is golden. If you have a good manager, you can concentrate your time and thought into your art. Also, a manager guides, and this is important, especially for young musicians and actors. Some of the best managers are women, due to having such skills as attention to detail, ability to relate with others, and office/computer skills.
Where does a lawyer come in? A lawyer can procure you a recording contract. A lawyer can help get you an agent. A lawyer can help get you a manager. A lawyer can negotiate the contracts on all these things as well as on gigs, recording contracts, etc.
Are you confused? Just remember: A manager is unregulated and advises you. An agent is regulated and helps you get work. A lawyer negotiates deals and contracts and can procure and negotiate a recording contract.