Exxxotica NJ: “Breaking into the Biz” Seminar Nov 9-11th

If you are interested in getting into the adult business as a producer, director or even as a pornstar (or just want to hear some behind the scenes stories) and live within driving distance of Edison, NJ then you should come to Exxxotica Expo and my seminar series. I will be doing a seminar on all 3 days of the show, each a little different so if possible come all 3 days and learn the “ins & outs” of the porn business.

Buy your tickets here -> http://nj.exxxoticaexpo.com/tickets/

From ExxxoticaExpo.com

Breaking Into The Biz: A How-To Guide To Getting Into The Adult Industry
Moderated by Michael Fattorosi, Adult Industry Attorney

Single-handedly the most asked question we get is, “How do I get into the biz?” Well, here’s your chance! What do you really need to know to break into the biz? Whether you want to be a webcam model, fetish producer or even a pornstar, this seminar can show you how you can be making money by the next day! Need some extra cash to help pay the mortgage or even the car? A few hours on cam and you can have it. Want to try your hand at being a director or performer but dont know how to set up a website or distribute your movies? We can show you how! The industry is easier now more then ever to get into so come learn how to grab a piece of a $10 billion dollar a year industry for yourself!”

Make sure you click here and “Like” or “Tweet” my seminar -> http://nj.exxxoticaexpo.com/seminar-breaking-into-the-biz/

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.

 

Porn 101: Choosing an Agent – Part 1

Once you have made the choice to get into the adult industry the next step is making the decision as to whether you need an agent and who that agent will be. Who you choose as your agent is probably one of the most important decisions you will make as performer. Your agent will shape your career and be able to use their mainstream and industry connections to help you further your career. Your agent will be the person within the industry that you have the most contact with at first. Therefore, its important that you choose your agent carefully and research who you may be hiring to represent you. Talk to other performers about their agent(s). Twitter makes it quite easy to approach and ask other performers in the industry what they like or do not like about their agent(s). And make sure you get more then one opinion.

After choosing an agent you will have to decide whether you will relocate to Los Angeles or will you simply visit Los Angeles and work while you are there. Living in Los Angeles or traveling there will make a difference in not only how much work you can expect but also what your life will be like and how your career will proceed. From a career perspective, living in Los Angeles will probably result in more work since you can be booked at the last minute if another performer isn’t available, refuses the job offer or “no-shows.” However, living in Los Angeles is probably much more expensive than where you may live now. Also, living in Los Angeles will allow to you develop relationships, business and personal, with producers, directors and other performers that may help and assist with how your career proceeds.

I would recommend that anyone seeking an agent in Los Angeles chose only a licensed and bonded talent agent. In California, all agents are required by state law to be licensed and bonded. Also, any agent booking work for talent in California also has to be licensed and bonded in California. Even if your agent is located in New York and that agent is booking work for you in Los Angeles, they too must be licensed and bonded in California. You can check to see which agents are licensed and bonded by searching on this database -> http://www.dir.ca.gov/databases/dlselr/talag.html

Who’s Licensed & Bonded ?

According the Licensed Adult Talent Agency Trade Association ( Please see: http://www.latata.org ) the following agents are currently licensed and bonded in adult entertainment in California;

  1. LA Direct Models
  2. Spiegler Girls
  3. Type 9 Models
  4. Foxxx Modeling
  5. Adult Talent Managers
  6. Matrix Models
  7. OC Modeling
  8. World Modeling
  9. Metro Talent Management
  10. Kiser Models
  11. Vangard Talent
  12. 101 Models
  13. Motley’s Models

(Author’s Note: I represent Metro Talent Management, however I do not endorse or recommend any of the other above listed agents. The list is merely provided as a starting point for your own research. Choose the agent that will best serve your needs as an performer. If you are an agent and want to know how to become licensed and bonded in California please see http://www.dir.ca.gov/dlse/Talent_Agency_License.html )

What’s a Talent Agent Contract Look Like ?

As a licensed and bonded agent, your agent is only allowed to use a pre-approved Talent Agency Agreement. A California Labor Commissioner MUST pre-approve and stamp all talent agency contracts. A sample of the current Labor Commissioner approved contract can be found here -> Talent_Exclusive_Contract

If your agent hands you a contract that does not look the above contract, has additional pages or is not approved by the state of California Labor Commissioner that is not a valid talent-agent contract and you should not sign it. As a part of being licensed and bonded, every agent is required to have any changes or additions to the standard contract approved by the Labor Commissioner before providing it to talent to sign. Without such approval those pages or parts are not enforceable.

However, your agent may ask you to sign a model release and a 2257 document to place your photographs on their website. Those are acceptable to sign since your agent will need your agreement to start promoting your pictures on their website.

As a rule, your agent should provide you will copies of everything you have signed so make sure you receive copies for your records. If your agent does not provide a copy make sure you take a photograph of every page of the contract with your phone and keep those photos for your records in case you need them in the future.

How Much Do I Pay My Agent ?

If your agent is not licensed and bonded they cannot receive a fee for booking you work. Often people will claim to be managers and or publicist and attempt to book work for you. If they do, legally they cannot take a fee for doing so. Only licensed and bonded agents may collect a fee for booking work for you. The fees an agent may charge is not limited however the standard in the adult entertainment industry is between 10-20% of the total gross fee paid to the performer for each job secured. The amount of fees that the agent will charge you must be stated on the talent agency contract.

If you would like to research the laws pertaining to talent agents in the state of California please see -> http://www.agentassociation.com/frontdoor/agency_licensing_detail.cfm?id=572

In my next article on this subject I will discussed living in Los Angeles, what you can expect from your talent agent and what they are allowed and not allowed to do.

Innocence of Muslims: A Good Example of Why Talent Should Read Model Releases

By now most of the world has heard of the film “Innocence of Muslims.” The clips of this movie prompted widespread violence and anti-American demonstrations across much of the Muslim world.

Video clips of the movie were initially uploaded to YouTube in July 2012. Videos dubbed in the Arabic language were uploaded during early September 2012. On September 9, 2012, an excerpt of the YouTube video was broadcast on an Egyptian Islamist television station. Demonstrations and violent protests against the film broke out on September 11 in Egypt and Libya, and spread to other Arab and Muslim nations and some western countries. On September 11, 2012 an armed attack occurred on the U.S. diplomatic mission in Libya in which the U.S. Ambassador J. Christopher Stevens and three other Americans were killed ( Please see: http://en.wikipedia.org/wiki/Innocence_of_muslims )

Originally titled “Desert Warrior” and shot in English. The film was transformed into the “Innocence of Muslims” by dubbing over certain lines in the movie and adding references to the Prophet Muhammad. This was obviously not what the actors had intended by their participation in the production.

So what does this have to do with porn ?

On Thursday, September 20, 2012, a Los Angeles judge denied one of the movie’s stars lawsuit to remove the videos from YouTube (Please see: http://www.washingtonpost.com/national/on-faith/actress-in-anti-muslim-movie-sues-for-its-removal-online-sues-filmmaker-for-fraud/2012/09/19/694e5cd0-02b7-11e2-9132-f2750cd65f97_story.html ). Without going into the legal analysis of why the judge denied her request what is important is the fact that this occurred in the first place.

What allowed the producer to dub over the actors’ voices was the model release and the fact that there was probably a clause in that model release giving the producer the right to do whatever he/she wanted with the movie. Now, many of those involved with the production of movie or starred in the movie are receiving death threats.

However, we may never know what the model release said since the actress who filed the lawsuit, Cindy Lee Garcia, admitted she didn’t have a copy of the model release.

In the day of the smart phones with cameras there is absolutely no reason for a performer not to have a copy/photo of every page of every model release, contract and talent agency agreement they are asked to sign. Performers should simply take photographs of the documents and keep them in their phone or email the photographs to themselves, organize them and save them on their computer. You may never know when you will need such a copy as I am sure Cindy Lee Garcia now wishes she had.

My point is not that a performer’s starring role in “Babyz Got Huge Backsides” will be turned into a religious movie that sparks international controversy but rather a performer should not end up like Cindy Lee Garcia, in court fighting about a contract dispute without a copy of the contract he/she signed.

All producers should readily provide a copy of the model release and 2257 documentation for talent. If they do not it might be simply because there is no copy machine available on set. A simple photograph of the contract can achieve the same purpose. If someone does not want to provide a performer a copy of the contract, now that’s a different issue and perhaps that performer should question their motives for not giving them a copy. In those cases I would recommend that a performer not sign anything until they allowed the right to photograph all pages of the contract.

 

Porn 101: Choosing Your Pornstar Name

This is the first in a series of articles for those that are considering getting into the adult industry as a performer.  Every year I travel the country speaking at several Exxxotica Expos wherein I do a series of seminars called “Breaking into The Biz.” One of the most asked questions I receive from both men and women is “how do I get into porn ?” Before someone can get into porn, they need to choose an appropriate stage name for themselves. Most people think that picking a porn name is rather easy…it’s the street they lived on as a kid and the name of their first pet. Unfortunately, that’s not so. Choosing a great stage name may require hours of research.

Before someone can enter the industry they need a stage name. I strongly suggest that you do not allow anyone else to “name you.” Do not let your boyfriend/girlfriend, agent, manager or a friend choose your stage name. By picking your name that gives them the right to own your name. It’s called intellectual property. If they choose it they own it.

Do not choose a name that contains popular brand names or the trademarks of companies. Forget Paris, Mercedes, Lexus, Dallas or any other geographical name or trademark. Not only is it problematic and opens you to a legal challenge by that company if you use an established trademark but no one will ever find you on the Internet when they do a Google search for your website. There are already hundreds, if not thousands, of websites that discuss Lexus and Mercedes Benz automobiles as well as thousands of travel sites discussing how lovely Paris is in the spring.

Do not choose a variation of your favorite pornstar’s name. Even if your boyfriend tells you how much your blow job techniques remind him of Susie Suckems blow job techniques do not name yourself Bobbi Suckems. As a performer you want to stand alone and not be confused with another performer in the industry. How successful would a singer be if she decided to call herself “Sher” or “Misses Gaga?” No one does that in mainstream entertainment and you shouldn’t do it in porn.

I understand it may be impossible to know the name of every pornstar that has preceded you in the industry but you have a great research tool to investigate if someone else has the same stage name that you want. Mainstream has IMDB.com and porn has IAFD.com ( http://www.iafd.com ). IAFD.com is a pornstar database of more than 100,000 performers. And yes, you read that correctly, they have a database of more than 100,000 porn performers. You probably didn’t realize that there have been that many porn performers in the history of porn. Obviously, with that many performers you probably wont be able to find a completely unique stage name but you do want to stay away from a performer name that exactly matches another performer’s name.

Once you have researched your stage name on IAFD.com it’s now time to see if someone has filed a trademark on your name already. It’s fairly easy to search the United State Trademark Database online ( http://www.uspto.gov/trademarks/index.jsp ). Just simply go to the search function and see if your name matches a previously registered trademark. If it does then you should go back to IAFD.com and begin the process over again.

Now that your name has cleared the IAFD.com and trademark search its now time to see if your name is available as a domain name. It’s rather useless to select a stage name unless you can own your own little piece of the Internet. It is vital that you can own your domain name and all the variations of your domain name. Which probably means you should not choose a name that is easy misspelled. Avoid names such as Jenny since it can be spelled Jeni, Jenni, Jenny, Jeny or even Jennie. A stage name using Jenny would require you to purchase four times the amount of domain names since you will have to buy every misspelling of your name. And if you combine a first name such as Jenny with a last name of Jameson – well now you will be purchasing domain names until you are broke since Jameson can be spelled with an “e” or an “i” and now you have to purchase every variation of both spellings. At this point you might be saying “why do I have to buy all those domain names if my name is going to be Jenny Jamison.” The answer is simply, if you don’t buy them other people will and they will set up websites with your name and make money off you and you will not see a dime of the money they make.

Most performers do not realize that when you start performing in scenes you will be signing a contract called a model release which will give the person or company paying you for your scene the right to use your photographs and videos on a website to promote the content. If you are just your average run of the mill porn performer, your scene will probably just be used on the company’s website. However, if you become a “pornstar” it is very likely that the company will buy a domain name with your stage name in it and start a website about you. If they have more than a couple of your scenes they can start a membership site and charge for it. And if you become a “big name pornstar” that company will probably call other studios and purchase the scenes they have shot with you in it to add to the website. Which means they are making money from your name, your hard work and you are not going to get a share of the profits.

To research whether your chosen stage name is available as a domain name it is as easy as doing a search on Go Daddy ( http://www.godaddy.com ). Once you determine that it is available – buy it. Do not wait, do not come back to it later, do not discuss your stage name with anyone. I have seen boyfriends, agents and managers steal the domain names of performers. Once you have spent hours researching your stage and domain name you should not discuss it any further with anyone. And you should not just purchase the .COM – you should purchase as many of the “dots” that you can afford. I would strongly suggest that you purchase the .NET, .ORG, .ME, .BIZ, .INFO, .MOBI, .TV as well. Obviously, if the domain name is not available for your stage name then you need to go back to IAFD.com and begin your research all over again until you can chose a stage name that passes all of the tests.

If you have the funds you may also want to consider buying other customary adult industry variations of your stage name. For example, if your stage name is Suzie Suckems you may want to consider purchasing ClubSuzie.com, ClubSuzieSuckems.com as well as SuzieSuckemsXXX.com. Finally, you may also want to purchase SuzieSuckemsBlog.com. These are all popular website variations that adult performers use in addition to their regular domain names. It would be cost prohibitive to buy every possible variation of your domain name but you do want to own as many as you can possibly afford. Not only will this prevent others from owning them but it will also increase the amount of traffic that will flow to your website once you launch it.

Please be aware, if you do not purchase your domain names before you start performing I can assure you that they will not be available once you do. There are people and companies whose sole business is to buy and sell domain names. Once a new performer enters the industry and starts performing those people will often purchase domain names of performers just so they can sell it back to the performer for substantially more than what the domain could have been purchased for by the performer. Trying to legally fight to get the domain name back is possible but still much more expensive then buying it from Go Daddy.

Next lesson in Porn 101 -> Choosing an Agent !

Paying Talent on Time: What Talent, Producers and Agents Need to Know

One of the most confusing situations that confronts both talent and producers is when should talent be paid. Some producers are almost religious when it comes to “same day pay” while others place talent on payroll and may not pay for up to a month. Often, talent will contact my office with complaints of either not being paid timely and in rare occasions, when producer’s checks actually do not clear and “bounce.” This article will cover what talent, producers and agents have to be aware of in regards to when is payment due to talent. In California, there are serious penalties for failure to timely pay talent for work performed.

Special attention must be paid to the California Labor Code when discussing work related payments. According to the Labor Code section 207, employers must establish regular paydays and post notices of when such days are. For example, if your production company has office staff and or production staff that are paid on the 15th and 30th of each month, these days will be presumed to be your regular pay schedule. Even though performers may not be part of your usual payroll schedule the 15th and 30th may be deemed to be your required days for paying talent, if you do not pay talent the same day and instead pay talent through a payroll service. For example, if talent works for your production company on August 28th and your usual pay date is the 30th you may be required to pay talent on the same day as you pay the rest of your employees.

If you are a small producer and do not have a regular payroll schedule to pay other employees then you must look to California Labor Code section 204 as to when talent must be paid. For wages earned between the 1st and the 15th of the month you must pay talent for their work no later then the 26th day of the same month. If the wages are earned between the 16th and the 31st of the month, wages must be paid no later then 10th day of the following month. For instance if talent works for you on August 8, 2012 that talent must be paid no later then August 26, 2012. If the shoot occurred on August 30, 2012 then talent must be paid no later then September 10, 2012. However, “payroll” does not mean that a producer get two weeks to pay talent. It actually means that a producer utilizes a real payroll service and other employees are being paid on the same date and that the producer is paying payroll taxes on the talent’s earnings. Simply stated, a producer cannot pay talent two weeks late and simply write a check for the full amount of the scene without deducting and paying taxes.

This information may come as a surprise to some of those that are reading this article. What will be more shocking is what are the penalties imposed by not following these payment schedules or in case your check bounces even if you pay the same day.

Failure to timely pay wages is not a situation you want to find yourself in as a producer. The penalty for such is that the talent’s right to payment at their rate continues for up to 30 days. Allow me to rephrase that, a producer will be required to pay the talent everyday for up 30 days as a penalty. For example, if talent performed for you on August 30, 2012, wages would have to be paid by September 10, 2012. If you did not pay talent by that date, that talent would be entitled to a penalty of whatever their rate was for the shoot (for example $1000) for each day payment was made late. Under Labor Code section 203 and 203.1 (in case of a check that does not clear) if you did not pay talent until September 30th you can be hit with a $20,000.00 penalty by the California Labor Commissioner for paying 20 days late. The penalty is $1000.00 per day (or whatever the talent rate is for that shoot) for up to and including the 30th day. Obviously, this is an extreme and severe penalty but one is that is often imposed and maintained by the Labor Commissioner. Even if you agree to settle with talent for less then the full penalty you will have to agree to send all payments to the Labor Commissioner’s Office who in turn will send it to the performer. Meaning there is no getting out of the this situation.

Further, it should be noted that nothing in the Labor Code has anything to do with whether a model release was signed nor can the Labor Code be contravened through a written agreement with talent. Simply put a producer cannot add a clause to a model release agreement indicating that they have up to six months to pay wages. Lastly, in addition to what is awarded to talent by the Labor Commissioner for unpaid wages, penalties and interest, the attorney representing talent will also be entitled to attorney’s fees.

Special attention should be paid by agents to this situation as well. It is often practice and custom within the adult industry for the agents to ask producers to pay them directly and then in turn the agent pays the talent. By doing this, the agent may unwittingly make themselves the employer in this matter and be subject to the same penalties for failure to pay talent timely. In California, there is a general legal conclusion that employment follows wages, which means if you pay the wages you may deemed to be the employer. Or in the alternative, if you are a producer and you pay the agent instead of the talent directly you may be in violation of the Labor Code if the Labor Commissioner determines you should have paid talent directly and did not and the agent failed to pay talent timely.

In conclusion, the payment of wages to talent is still a relatively untested area of law in the adult industry that is rife with potential pitfalls for the unwary and uninformed producer and agent. It is strongly recommended that you review your wage payment policies with a lawyer that is well versed in employment law and the Labor Code.

UPDATE:

I wanted to also add in some relevant case law and a brief synopsis of such so anyone reading this can realize how it applies directly to the adult industry.

In Smith v. L’Oreal USA, Inc. (2006) 39 Cal. 4th 77, the California Supreme Court ruled directly on this issue. Ms. Amanda Smith worked for L’Oreal as a “hair model” at an upcoming L’Oreal hair show. L’Oreal agreed to pay her $500 for one day’s work at the show. Ms. Smith worked at the show, where her hair was colored and styled, and she then walked a runway a few times. Ms. Smith stayed at the show until she was told she could leave. L’Oreal did not immediately pay her the $ 500 in wages it owed her, but waited over two months to do so.

Ms. Smith filed a law suit against L’Oreal, alleging that she worked for one day, that her employment was terminated at the end of the day, that L’Oreal violated its obligation to pay earned wages promptly upon separation, and that it should pay her “waiting time” penalties under Labor Code Section 203.

The California Supreme Court agreed. The Court held that the discharge element of Section 201 can be satisfied either when an employee is involuntarily terminated from an ongoing employment relationship or when an employee is released after completing the specific job assignment or time duration for which the employee was hired. An employee who works on a job assignment of short duration is not excluded from the protective scope of Sections 201 and 203.

If a production company does not pay your talent at the end of the shoot this could result in huge penalties being assessed against that employer. This would also apply to any temporary employees, including but not limited to directors, camera people, lighting or production assistants.

 

 

Balancing Talent Agents, Performers and Producers

http://www.xbiz.com/articles/104087/fattorosi

There has been much debate recently as to the role talent agents play in the adult entertainment industry.

In November 2008, seven California-based licensed and bonded talent agencies came together and formed the Adult Entertainment Agents Trade Association. The mere fact that the “legal” talent agents have joined to form a trade association has caused a stir amongst numerous producers and performers alike. There has been much discussion as to talent rates and fear that the association will result in price fixing. This article will address the legal ramifications of what role an agent has and what this means to producers and performers.

First off, one must define what a talent agent is. Many in the industry try to blur the line between agents and managers. An agent is a person that secures employment for a performer. A manager is just that — he or she manages a performer’s career — but cannot legally secure employment for their client.

In order for an agent to be “legal” that agent must be licensed and bonded by the state of California. Labor Code section 1700 et al., is the pertinent law in regards to the licensing of talent agents. If an agent is not licensed and bonded, he or she is operating illegally and cannot collect fees from the performers they represent. Moreover, any performer that has paid fees to an unlicensed agent can file a claim with the Division of Labor Standards and Enforcement and receive a complete refund on fees paid to that agent.

A licensed and bonded agent can collect up to a 20 percent fee of the work secured by their agent. An agent cannot collect more than 20 percent as the California Labor Code legally caps this.

What about talent rates? Talent should determine their own rates. Rates cannot be set across the industry by the agents. Doing so can appear to be collusion and price fixing. Rate fixing can result in legal action by producers and can violate antitrust as well as unfair competition laws. Free market conditions should also help determine talent rates.

TALENT AGENCY CONTRACTS: WHAT DO THEY MEAN?
Often performers want to change agents and try to further their careers. What can a performer do in case they want to break their contract with their agent? The best answer is to have a lawyer review the contract before signing it so that the performer can understand what the contract means. All licensed and bonded agents in California use the same contract. Also, all agent contracts in California must be approved by the Division of Labor Standards and Enforcement (DLSE). If an agent is not using an approved contract, that contract cannot be enforced and can be voided by the performer.

Also, if an agent alters the DLSE-approved contract in any way and does not have their new version approved by the DLSE, again it usually can be legally challenged by the performer and determined to be unenforceable. If a performer wants to challenge the legal sufficiency of an agent’s contract, that performer would have to file a Petition to Determine Controversy with the Labor Commissioner’s Office. If declared void, not only will that performer be able to get out of their contract, they will also be awarded a refund of any fees paid to the agent for the year prior to the filing of the petition.

CAN A PERFORMER HAVE TWO AGENTS?
There is an exclusivity clause in the standard contract that states that the performer must remain exclusive to that agent for up to one year if that agent is indeed booking the performer work. If an agent books a performer at least once every four months, then that performer has to be exclusive to that agent. If the agent is not securing work for their client, then a performer can get out of their contract and switch agencies. Obviously, one scene every four months is certainly not enough work to earn a living on. What to do then?

There is no case law on point, but there is nothing that indicates that a performer cannot secure her own employment. California is a right to work state and case law in regards to non-compete clauses state that restrictions on employment are usually not enforceable in California courts. Therefore, it would make sense that if a performer wants, they could seek out their own scenes. However, that performer may still owe a fee to the agent that is representing with him or her.

However, what if a producer tries to hire a performer directly without the first contact being initiated by the performer? In that case the performer should honor their contract with their agent and request that producer book the scene through her agent. If a producer tries to “book around an agent” and knowingly does so, that can be actionable by the agent. It is something referred to as tortuous interference with a business relation. That can result in a civil lawsuit being filed by the agent against the producer.

In short, if an agent is not finding a performer enough work, he or she can find it on his or her own. However, it is recommended that the performer pay the agent no matter how they find the work. If a producer contacts a performer in order to book a scene directly, that performer should refer the producer to her agent to book the scene.

Producers are regularly charging 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.

In conclusion, 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. Producers need to realize that the contracts used by talent agents are valid and do carry weight in court since they are approved by the state of California.

Lastly, talent, agents and producers should work together in determining how content will be produced and for what rate. No one’s interests are served if there is an ongoing dispute regarding the creation of content in the industry.