Porn 101: Choosing An Agent – Part 2

In part one of this article ( Please see: http://adultbizlaw.com/porn-101-choosing-an-agent/ ) I discussed whether a performer should choose a bonded and licensed agent, whom those agents are and what does a proper talent agency contract look like. In this article I will discuss what difference moving to and living in Los Angeles can have to a performer’s career and what your agent can and cannot do in regards to their representation.

Moving to Los Angeles?

The decision to move to Los Angeles to pursue a career in adult is not an easy one. Los Angeles can be an expensive area to live. Rents are usually higher then in other non-metropolitan areas ($1000-$3000 per month for a 1-2 bedroom apartment). Food and dining out can be expensive in Los Angeles as well. Obviously anyone can live anywhere on a budget but for the most part it will be more expensive to live in Los Angeles then most places.

However, not living in Los Angeles will likely mean that the performer will be booked less than a performer that lives in Los Angeles. Living in Los Angeles means that you are more available to work. If a performer lives in Oklahoma and a director/producer wants to cast her in a scene, he/she would have to wait for the performer to come to Los Angeles. That is likely not going to happen, unless the performer is a “pornstar.” If another performer “flakes” on the scene then the producer/director will likely call the agent and ask for a replacement performer to be sent to set immediately. A performer not living in Los Angeles will not have the opportunity for that job. Agents will often push local performers more so then those that live out of state.

A performer living in Los Angeles will usually be booked more since he/she would be more readily available to be booked. Also, living in Los Angeles will allow that performer to meet and develop relationships with more producers/directors/talent in the industry. The more people a performer knows the more opportunities he/she usually has to work. Many new performers think that once they get an agent their work is done. From talent I have talked to over the years it seems as though they believe that their agent is going to be “pounding the pavement” looking for work for them. That is not usually how it happens.

Directors/Producers usually decide on who they may want for a particular movie or scene based on physical attributes ie., hair color, race, breast size or willingness to perform a particular sex act ect. That director/producer will go to the various agent’s websites looking for performers that fit that requirement. When the director/producer finds such talent he/she will starting making phone calls to the agent to inquire into the availability of a particular performer. The job will usually go to a local performer since the producer has less worry about a local performer showing up on the date of the shoot.

An agent does not and cannot sit on the phone calling every production company with potential work for their clients. Some agents do send out email blasts and some even still do what are called “go-sees.” Other than that performers should not expect much more from their agents in the way of promotion. That is something talent has to do for themselves either in person who using social media such as Facebook and Twitter. Many performers are also now hiring a publicist to also promote them within the industry. This is something that I highly recommend. A good publicist will be able to secure appearances and interviews that may lead to more work.

Obviously, living in Los Angeles and meeting the directors/producers will increase a performer’s circle of friends and increase their potential chances for work. However, living in Los Angeles does not guaranty a performer more work, just the opportunity to meet those people that might offer them more work. Moving to Los Angeles is a decision that has to be considered carefully. The increase in living expenses might off set the amount of income earned through any additional work that the performer receives. As a general rule though it is my experience that performers living in Los Angeles do get booked more often then those that are not.

What Can an Agent Legally Do ?

On January 24, 2009 an article I wrote titled “Balancing Talent Agents, Performers and Producers” was published on XBiz.com and in their XBiz World Magazine (Please see: http://www.xbiz.com/articles/104087/fattorosi ). Even though this article is over three years old many of the things I wrote about remain true. Below are some excerpts from that article. I would suggest that anyone reading this article also read my original article linked to above.

Kill Fees: Are They Allowed ?

Producers can charged performers kill fees in case the performer does not perform as required by the producer. Kill fees are a legally confusing situation. If a performer flakes on a shoot, the producer will suffer damages. A kill fee is a contract term between the producer and the performer, not between the agent and the performer.

Kill fees cannot be used by an agent to punish a performer for not performing the scene. Also, a kill fee cannot be charged to a performer unless they understood before accepting the job offer that a kill fee is part of the contract for taking the job. A performer can instruct their agent not to book them for any producers that require kill fees. Also, a performer should request all information pertaining to kill fees prior to accepting any scene and that information should be in writing.

If an agent attempts to charge a performer a kill fee without having the performer accept the kill fee as a term of that employment, the agent would be violating their duty to the performer and that performer could file a Petition to Determine Controversy to have any charged kill fees refunded as well as possibly challenging the underlying contract with the agent. Thus, agents charge a kill fee at their own peril.

Cashing a Performer’s Check ?

Some agents also request that performers sign an agreement called a “Power of Attorney” so that the agent can cash and deposit into their own bank account the money paid to a performer. This is done for two reasons. The first is that the agent wants to get paid his/her agency’s fees. The second is that many producers are now refusing to pay talent directly and would rather pay the agent. I assume that production companies believe this provides them some sort of insulation against liability to the performer. This is simply not true. None the less, performers are routinely having their checks sent to their agent and then they are paid by the agent.

If you give your agent the power to cash and deposit your checks that is an individual decision. Some performers would rather have the agent take care of paying themselves. Others rather control their own finances and pay the agent later. If you do sign a “Power of Attorney” realize that you can revoke the it at any time in the case of abuse by the agent. However that must also be done in writing. I would suggest that any performer that wants to revoke this to do so in an email to their agent so if necessary the performer will have evidence of it later. If the agent continues to cash their check without written authorization they will be violating their talent agency agreement with the performer as well as possibly committing the crime of forgery.

What if an Agent Violates the Contract ?

If a performer feels as though an agent has violated the talent agency agreement they do have legal recourse. However, it is limited. A performer cannot file a lawsuit against an agent. The only legal claim that a performer can make against an agent is to file a Petition to Determine Controversy with the California Department Labor Standards and Enforcement. That department has exclusive jurisdiction to hear and decide all cases between talent and agents. On occasion, the DLSE does publish significant decisions that relate to cases between talent agents and performers. (Please see: http://www.dir.ca.gov/dlse/DLSE-TACs.htm )

A performer can file the Petition themselves, however it is better to retain a lawyer to handle any claim against a talent agent. However, be aware the process of filing the Petition to the final decision of the DLSE may be in excess of one year. The state of California’s courts and other departments are underfunded due to budget cut backs and cases now are taking much longer then usual to be resolved. It is often better for the performer to negotiate a resolution of any issue with their agent if possible.

Conclusion

Overall, it should be noted that an agent works for the performer and should be conducting business in a way that is in the best interest of his client. Often this is forgotten and at times it seems like the talent is working for the agent. Performers must remember that an agent also represents dozens of other performers with a limited staff and cannot always provide the personalized service that they wish they were receiving.

Performers must take responsibility themselves for finding work as well as promoting themselves. Hiring a publicist, using social media and attending industry functions are all ways to market their services. As the industry continues to shrink and less work is available the scenes that are remaining will go to those that work the hardest and smartest to get them.

 

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