California’s Talent Agency Act:
Time To Get Real: Antiquated Regulation and the 21st Century

actress

By Reena Sehgal

 “We cannot solve our problems with the same thinking that created them.”[1]

actress Glitz. Glamor. Fame. Fortune. Red carpets. That is what Hollywood is all about, right? Wrong. The reality is that Hollywood is an impersonal, uncaring, and unforgiving place. Today’s average American consumer arguably knows more about the lives of the Kardashians and Justin Bieber than the presidential election. What the public doesn’t concern themselves with are the industry players who help catapult entertainers to great levels of fame.

To navigate the harsh reality of the entertainment industry, artists seek the sophisticated assistance of third party representatives, specifically agents and managers, to aid in locating employment opportunities and developing a career.[2] Historically, these industry players have engaged in unscrupulous business practices in an effort to thrust their artists into the limelight.[3] In an effort to quell such behavior, California legislature enacted the Talent Agencies Act (“TAA” or “the Act”).[4]

The Act establishes and relies on a bifurcated system, where an artist’s employment procurement efforts are relegated exclusively to licensed agents, leaving managers to handle all other aspects of an artist’s career.[5] Unfortunately, in today’s entertainment industry, such a black-and-white occupational distinction simply does not exist.[6] In fact, the Act turns a blind eye to one key industry reality: talent agents have no interest in signing unseasoned artists, but without the talent agent there is no legal way for the artist to procure employment to establish a reputation.[7]

This leaves personal managers to face the difficult dilemma of violating the Act by procuring employment, and thus jeopardizing their contract with the artist due to the illegal procurement, or acquiring agency licensing and subjecting themselves to regulation and fees.[8] As managers typically advance a significant amount of time, money, and effort for their new artists with the ultimate desire of obtaining a return on their investment, they often opt to procure employment.[9] Sadly, artists use this situation to their advantage – first retaining management in their early years to procure employment and obtain an agent, and then utilizing the Act to disavow their management contracts.[10]

The distinction between agents and managers is further blurred when these representatives opt to forgo their commission in lieu of producer credits or engage in packaging deals.[11] These manager-producer and agent-producer roles create significant conflict-of-interest concerns.[12] Though guild regulation on production and distribution currently exists, failed negotiations between agencies, managers, guilds and unions can render such regulation obsolete and ultimately leave artists without protection.[13] In addition to these problems, the 1986 revision of the TAA did not foresee the impact of technological advancement on the entertainment industry. DJWith the advent of the internet, the rise of illegal file sharing, and resulting decline in physical music sale, the music industry has scrambled for new ways to generate revenue.[14] As a means to recoup their losses, the industry has begun to engage in multiple rights agreements, better known as 360 deals.[15] Under such agreements, the record label becomes, in essence, a personal manager by investing in an artist’s brand and developing their act by providing business and administrative support and guidance.[16] Unfortunately, by essentially becoming personal managers, the record label also then faces the unfortunate dilemma of having to violate the Act.

This note exposes the inapplicability of the TAA given the twenty-first century entertainment industry landscape. Part II defines the industry roles of talent agents and personal managers and introduces the dispute between the two representatives. Part III discusses the history of the TAA and introduces the Act’s fundamental provisions. Part IV describes the diverse roles of industry players as they exist today, and exposes how the TAA is no longer adequate in light of the evolved industry.

CLICK HERE to read the entire article.

[1] Todd Maclean, Global Chorus: 365 Voices on the Future of the Planet 125 (Todd Maclean Ed., 2014) (“To paraphrase the great Albert Einstein, we cannot solve our problems with the same thinking that created them in the first place.”)

[2] David Zelenski, Note, Talent Agents, Personal Managers, and Their conflicts in the new Hollywood, 76 S. Cal. L. Rev. 979, 979 (2003).

[3] Erick Flores, Note, “That’s a Wrap! (Or is it?)”: The Unanswered Question of Severability Under California’s Talent Agencies Act After Marathon Entertainment, Inc. v. Blasi, 97 Geo. L.J. 1333, 1334 (2009).

[4] Marathon Entm’t, Inc. v. Blasi, 174 P.3d 741, 746 (Cal. 2008)

[5] 1 Thomas D. Selz, Melvin Simensky, Patricia Acton & Robert Lind, Entertainment Law 3d: Legal Concepts and Business Practice § 8:7 (Westlaw 2014).

[6] Heath B. Zarin, Note, The California Controversy Over Procuring Employment: A Case For The Personal Managers Act, 7 Fordham Intell. Prop. Media & Ent. 927, 929 (1997).

[7] Gregory Albert, Note, Taking Away An Artist’s “Get Out of Jail Free” Card: Making Changes and Applying Basic Conract Principles to California’s Talent Agencies Act, 8 Pierce L. Rev. 383, 384 (2010).

[8] James M. O’Brian III, Comment, Regulation of Attorneys Under California’s Talent Agencies Act: A Tautological Approach To Protecting Artists, 80 Cal. L. Rev. 471, 484 (1992).

[9] Albert, supra note 7, at 384.

[10] Id.

[11] See infra Part V.

[12] Amy Wallace, Hollywood Agents Lose the Throne, latimes.com (Dec. 11, 1998) available at http://articles.latimes.com/1998/dec/11/news/mn-52950

[13] See e.g. Former SAG Agency Relations Unpates, sagaftra.org, http://www.sagaftra.org/sag-agency-relations-updates (last visited April 26, 2015).

[14] Mark Kesten, Article, Collateral Damage: Will The 360 Deal Be the Next Victim of California’s Talent Agencies Act, 43 Sw. L. Rev. 397, 398. (2014).

[15] See Jeff Leeds, The New Deal: Band as Brand, N.Y. Times, Nov. 11, 2007, Section 2 (Arts & Leisure), at 1, available at http://www.nytimes.com/2007/11/11/arts/music/11leed.html (“Like many innovations, these deals were born of desperation; after experiencing the financial havoc unleased by years of slipping CD sales, music companies started viewing the ancillary income from artists as a potential new source of cash.”).

[16] Id.

Why You Should Trademark Your Company Name And Logo

trademark article

So, you’ve decided to start a new business or maybe you’ve been in business for a while. Maybe you’ve just come up with a fantastic idea for a new “App”. Whether you’re a brick-and-mortar or completely online business, you’re probably asking yourself “Do I really need to trademark my business name?” It can seem unnecessary to go through the long, tedious process and cost of trademarking. You may even think that other entrepreneurs and creators would be courteous enough to not use the name or logo that you meticulously crafted – they’d see your use and just choose a different name or logo, right? Unfortunately, not everyone is so considerate.

businessMost business owners and entrepreneurs understand the importance of a business name to their branding. In fact, your business name and logo are some of your company’s most valuable assets. Your carefully crafted name becomes a symbol of your business’ reputation. So, how can you stop others from using your name and protect your hard work and company’s goodwill? One important measure to take is to apply for trademark registration.  Many attorneys say that trademark registration isn’t always necessary, and registration necessity truly depends the geographic scope of your business and whether you have the time and money to file a trademark application. But, in today’s day and age, whether you’re a small, local storefront, or a completely online nation-wide service, trademark registration is a valuable investment.

Just imagine, one day your small mom-and-pop dessert store is visited by a tourist who happens to be a popular food blogger. After tasting your delicious treats, this blogger decides to write an article about you. The next day you’re inundated with calls and orders, and your small one-page website crashes from the amount of visitors. Lo and behold, stores, using your mom-and-pop name, are appearing all over the nation, marketing goods that are similar but of a different quality than your own. The same could happen with a purely online store, or even more likely, with the newest brilliant “App” idea. Wouldn’t it be a shame to see this happen to your business? What if consumers believe your company is affiliated with those knockoff products? All of the time and effort you devoted to developing your business, brand and goodwill would be damaged. When you think about the potential risk of a situation like this occurring, the cost of trademarking seems minimal.

DBA, Limited partnership, LLC, Corporation…

Now, you may be asking, “I’ve already registered my business name with the state government, doesn’t that protect me?” Though state business registration is important, it only applies to the state where you register. It may stop another company from registering the exact same name in the same state, but it does not give you formal ownership rights over a name or protect you outside of the state.

Trademark Registration Benefits

Federal trademark registration, on the other hand, gives you the exclusive right to use your business name nationwide in connection with the goods and services you’ve identified in your application and allows you to take swift action and enforce your trademark rights by filing a lawsuit in federal court.

In addition to these benefits, you gain several other advantages, including:Trademark

  • A record of ownership of the trademark, and a proven date of first use.
  • A legal presumption that you own the trademark and can use it for the goods and services listed in your application.
  • Right to use the registered trademark symbol ®
  • U.S. registration creates some ease in registering your mark internationally.

Registration also makes your mark visible to anyone doing a trademark search, thereby decreasing the likelihood that another will use it.

But, What About Common Law Rights?

At this point, you may be thinking, “don’t I have trademark rights to stop infringing activity before I even apply for registration?” Yes, you do. You can claim ownership of your trademark without officially registering it with the United States Patent and Trademark Office (USPTO), however, your rights are limited to the geographic regions where your mark is used. So, those rights wouldn’t be enforceable against a competitor who pops up in a region where you were considering expanding to, but had yet to do so.

So, When Is It a Good Time to Start the Trademark Registration Process?

Though the trademark registration process can be started at any stage, it’s best to start it in the very early stages of your business by filing an “intent-to-use” application. This initiation of the registration process can ensure that your business name is cleared for use. A significant part of the trademark application process includes a trademark search, wherein research is conducted on existing and pending trademarks to ensure that your name isn’t infringing on an established mark.  The trademark search process not only increases the likelihood of a successful application, but prevents you from investing time, effort, and money into marketing a brand that may later be challenged by an existing competitor.

It is important to note that your name does not need to identical to an existing trademark in order to be considered infringing, it simply needs to be close enough to be considered confusingly similar to a competitor offering similar products or services. The entire process from search to complete registration can take 10 months to a year (potentially longer). Therefore, if you wait to trademark your name until after your business has launched, or until someone begins infringing on your name, you may find yourself in the long and expensive process of opposing or canceling an existing mark, or be in an odd position of waiting for registration to complete before you can have an enforceable right to stop infringing activity.

By filing a trademark application as early as possible in your business development process, you’re protecting not only your name but the hard work you will, or already have, put into building goodwill.

 

Helping You Succeed. Call the Law Office of Reena Sehgal to see how we can help you with trademark registration.

 

Check back soon for more articles – including:

“What kind of Names Can Be Trademarked?”

“Trademarks: The Process from Search to Registration”

 

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Law Offices of Reena Sehgal. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.