Amicus Project at Southwestern Amicus Curiae Brief

Case No. 13-55545

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

National Conference of Personal Managers, Inc.

Plaintiff-Appellant

vs.

Edmund G. Brown, Jr. et al

Defendants-Appellees

On Appeal from the

United States District Court,

Southern District of California

District Court Case Number CV 12-09620

The Honorable Dean D. Pregerson, Judge, Presiding

AMICUS CURIAE BRIEF OF MUSIC MANAGERS FORUM—US, TALENT

MANAGERS ASSOCIATION, ATTORNEY EDWIN F. MCPHERSON, AND

ENTERTAINMENT LAW PROFESSORS ROBERT C. LIND AND MICHAEL

M. EPSTEIN IN SUPPORT OF APPELLANT’S OPENING BRIEF TO

REVERSE THE DECISION OF THE DISTRICT COURT.

ROBERT C. LIND MICHAEL M. EPSTEIN

Professor of Law Professor of Law

Supervisor, Amicus Project at Director, Amicus Project at

Southwestern Law School Southwestern Law School

3050 Wilshire Blvd. 3050 Wilshire Blvd.

Los Angeles, CA 90010 Los Angeles, CA 90010

Telephone: (213) 736-6785 Telephone: (213) 736-6774

Facsimile: (213) 738-6614 Facsimile: (213) 738-6614

Pro bono attorneys for above-referenced amici curiae.

Case: 13-55545 10/16/2013 ID: 8824014 DktEntry: 12 Page: 1 of 26

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS……………………………………….…………………..i

DISCLOSURE AND COMPLIANCE STATEMENTS……………. . . . . . . . . . . .ii

STATEMENT OF INTEREST AND IDENTIFICATION OF AMICI….. . . . . . .. ii

TABLE OF AUTHORITIES…... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …..vi

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... ... 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

The Talent Agencies Act Undermines Its Purpose Thereby Failing The Rational

Basis Test………………………………………………………………………….. 2

A. The Current Enforcement of the Talent Agencies Act Is Contrary To Its

Legislative Protective Purpose……………… ……………………...………2

1. Employment Procurement Does Not Interfere With The Act’s Intended

Protections……………………………………………………………......6

2. Under Current Enforcement Of The Act, Artists Are Unjustly Enriched

And Given a Tool to Avoid Contractual Commitments……...………….7

B. The Talent Agency Act’s Prohibition Against Unlicensed Employment

Procurement Does Not Satisfy Due Process Standards Required To Justify

State Regulation………………………………………………………….....9

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15


ii

STATEMENT OF COMPLIANCE TO RULE 29(c)(5)

Amici curiae state that (a) no party's counsel authored this brief in whole or

in part; (b) no party, nor counsel for either party, contributed money that was

intended to fund preparing or submitting this brief; and (c) no person other than

amici curiae, their members or their counsel contributed money that was intended

to fund preparing or submitting this brief.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure, all amici curiae state that

they are either non-profit organizations, professors at non-profit educational

institutions, or entertainment industry advocates. They have no parent companies

and have not issued shares of stock.

CONSENT OF THE PARTIES

In accordance with Ninth Circuit Rule 29-3, Amici have sought the consent

of the parties to file an amicus curiae brief. Attorney for Defendant-Appellees and

Plaintiff-Appellant have consented to the filing of the amicus brief.

STATEMENT OF INTEREST AND IDENTIFICATION OF AMICI

Amici Curiae Music Managers Forum-US (“MMF-US”), Talent Managers

Association (“TMA”), and Edwin F. McPherson are major advocates for the talent

management and entertainment industry whose members or clients will be

adversely impacted if the District Court’s decision is upheld. Amici have a


iii

substantial and serious interest in a decision that will expose managers and other

entertainment industry participants to the voiding of contracts and the forfeit of

compensation by the State of California. Most leads of films and series regular

roles are cast in California, and many music industry contracts are signed in

California, so managers need to be able to work in conjunction with agents and

casting directors and producers in California and other states. It is therefore

essential that managers be able to represent talent, no matter which U.S. state the

manager or talent is located in. The nature of entertainment industry today is that

production frequently occurs in more than one state, requiring talent to work with

different producers and different agents in each state.

The TMA, MMF-US and Edwin F. McPherson support the Appellant

because for decades the California Talent Agencies Act and the California Labor

Commissioner have unfairly singled out personal managers and deprived them of

their constitutional rights. Amici Professors Robert C. Lind and Michael M.

Epstein have a strong interest in assuring that the industry evolves fairly and

profitably for managers, talent agencies, and talent.

Amicus TMA was founded in 1955 as an association of professional talent

managers, virtually all of whom would be subject to disgorgement of

compensation under the Talent Agencies Act. The TMA exists for the benefit of


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its members, the casting, agent and producing communities and talent in all areas

of the entertainment industry.

Amicus MMF-US, founded in 1993, is an association comprised of managers

in the music industry, and many of its members risk disgorgement under the Talent

Agencies Act. The MMF-US exists to further the interests of managers and their

artists in all fields of the music industry, including live performance, recording and

music publishing matters. The TMA and MMF-US membership consists of

managers located in California and in many different states.

Amicus Robert C. Lind is the Director Emeritus of the Donald E. Biederman

Entertainment and Media Law Institute, a Professor of Law at Southwestern Law

School, and author of numerous entertainment and copyright law books, treatises,

and articles. He is a supervising attorney for the pro bono Amicus Project at

Southwestern Law School.

Amicus Michael M. Epstein is the Director of the Amicus Project and a

Professor of Law at Southwestern Law School where he writes and teaches in the

areas of entertainment and communications law. He is the Supervising Editor of

the Journal of International Media and Entertainment Law, published by the

American Bar Association and the Biederman Institute.


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Amicus Edwin F. McPherson is an attorney with thirty years’ experience in

entertainment law concerning managers, artists, producers, agents, and other

entertainment industry participants and has served as a consultant and expert

witness in regard to the Talent Agencies Act.


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TABLE OF AUTHORITIES

CASES

Page

SUPREME COURT CASE

F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (1993)….…………………………7

FEDERAL CASES

Baer v. City of Wauwatosa, 716 F.2d 1117 (7th Cir. 1983)....................................11

Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)……….……………………….13

Lock v. Shore, 634 F.3d 1185 (11th Cir. 2011)…………...………………………11

Merrifield v. Lockyer, 547 F.3d 978 (9th Cir. 2008)……..………………..……...14

Pick Up v. Brown, No. 13-15023, WL 456249 (9th Cir. Aug. 29, 2013) ….……..11

STATE CASES

Cornwell v. California Bd. of Barbering and Cosmetology, 962 F. Supp. 1260

(S.D. Cal 1997) …………………………………………………….……………..14

Griffiths v. Superior Court, 96 Cal. App. 4th 757 (2002)……….....…10, 11, 12, 13

Howard Entertainment, Inc. v. Kudrow, 208 Cal. App. 4th 1102 (2012)……..…...4

Hughes v. Bd. of Architectural Examiners, 17 Cal. 4th 763 (Cal. 1998)…………10

In re Arthur W., 171 Cal. App. 3d 179 (1985)… ………………………………...10


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STATE CASES Cont.

Marathon Entertainment, Inc. v. Blasi,

42 Cal. 4th 974 (Cal. 2008) ………………………………..3, 4, 5, 6, 8, 9, 12

Marek v. Bd. of Podiatric Medicine, 16 Cal. App. 4th 1089 (1993)….. …………10

Rand. v. Bd. of Psychology, 206 Cal. App. 4th 565 (2012)…………………….…10

Rhodes v. Herz, (N.Y. App. Div. 2011) 84 A.D. 3d 1…………………………….15

Styne v. Stevens, 26 Cal. 4th 42 (Cal. 2001) …..………………… …..…………....1

Waisbren v. Peppercorn Prods., Inc., 41 Cal. App. 4th 236 (1995)……............….8

Whitcomb v. Emerson, 46 Cal. App. 2d 263 (Cal. 1941)…………………..……..13

LABOR COMMISSION DETERMINATIONS

Billy Blanks Jr. v. Ricco, No. TAC 7163 (Cal. Lab. Comm’n Jan, 9, 2009)…...…..9

Derek v. Callan, No. TAC 18-80 (Cal. Lab. Comm’n Jan. 14, 1982)……..……...12

Krutonog v. Chapman, No. TAC 3351 (Cal. Lab. Comm’n Oct. 31, 2012)……….8


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STATUTES

Page

California Labor Code § 1700.4 (West 2011) ...…………………….….…….…2, 7

California Labor Code § 1700.6 (West 2011) .……………………….………...….7

California Labor Code § 1700.7 (West 2011).…………………………….…..…...7

California Labor Code § 1700.9 (West 2011) ..………………………………..…..7

California Labor Code § 1700.15 (West 2011).………………………..…….….…7

California Labor Code § 1700.25 (West 2011).………………………………....…7

California Labor Code § 1700.34 (West 2011).……………………………………7

California Labor Code § 1700.35 (West 2011).………………………………....…7

New York General Business Code § 171(8) (McKinney 1996)………………..…15

Report of the California Entertainment Comm’n, May 23, 1985

(Cal. Doc. E203 R4)……………………………...……………………….2, 8

LEGISLATIVE HEARINGS

The Licensing and Regulation of Artists, Personal Managers, and Musicians Book:

Hearings Before the California Legislature Senate Committee and Industrial

Relations 222 (1975)………....………….....………………………………………3


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OTHER AUTHORITIES

Busch, Walking on the California Talent Agency Act’s Thin Ice: Personal

Managers Beware! Forbes (March 25, 2013)

http://www.forbes.com/sites/richardbusch/2013/03/25/walking-on-the-california-

talent-agency-acts-thin-ice-personal-managers-beware/……………..…….………4

McPherson, Is the California Legislature Listening? 35 L.A. Law. 48 (May, 2012)

…………………………………………………………………………….…...7, 14

O’Brien, Regulation of Attorneys Under California’s Talent Agencies Act; A

Tautological Approach to Protecting Artists, 80 Cal. L. Rev. 492 (1992) 492

(1992)…………………………………………………………………………….3, 4

Robertson, Don’t Bite the Hand That Feeds: A Call for a Return to an Equitable

Talent Agencies Act Standard, 20 Hastings Comm. & Ent. L.J. 223 (1997)……2, 6

Jim Herron Zamora, Talent Agency Held in Sexual Assaults, L.A. Times, Oct. 8,

1992, at B1…………………………………………………………………………6


http://www.forbes.com/sites/richardbusch/2013/03/25/walking-on-the-california-talent-agency-acts-thin-ice-personal-managers-beware/


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SUMMARY OF THE ARGUMENT

The Talent Agencies Act’s (“Act” or “TAA”) original remedial purpose, to

“protect artists seeking professional employment from the abuses of talent

agencies,” Styne v. Stevens, 26 Cal. 4th 42, 49 (Cal. 2001), arguably satisfied

rational basis review in the early and mid-twentieth century when the original

version of the Act was enacted. Its prohibition on unlicensed employment

procurement however, does not serve its purpose, nor does it maintain a nexus to

any harm as required to satisfy rational basis review standards. The entertainment

industry has changed under the impact of new media and increased competition;

the typical aspiring artist relies on a manager to represent her before she can be

represented by an agent. Although managers fill this void, they are being deprived

of due compensation by individual artists due to the interpretation of this Act.

Managers, who are critical to burgeoning artists’ careers, are presently being

unjustifiably deprived of freely bargained for and earned commissions under the

Act’s current enforcement. While the state may regulate certain trades or activities

if the regulations satisfy rational basis review, the manner by which the Talent

Agencies Act is being enforced is irrational and unjust. The Labor Commissioner

has voided managers’ contracts with artists who have benefited from managers’

services and then used the Act to avoid compensation due under the contract. Used

in this way, the Act does not justly serve artists, but primarily protects talent agents


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that have attempted to exert dominance in the procurement of employment for

artists.

ARGUMENT

The Talent Agencies Act Undermines Its Purpose, Thereby Failing The

Rational Basis Test.

A. The Current Enforcement of the Talent Agencies Act Is Contrary To

Its Legislative Protective Purpose.

The Talent Agencies Act (formerly the “Artist Management Act”) was

intended to be a prophylactic measure protecting developing artists from

improprieties by talent agents “because of [their] strong reliance upon their agents

for employment.” See Report of the California Entertainment Comm’n, May 23,

1985, Cal. Doc. E2035 R4 1985, at 3-4. Paradoxically, the protections intended by

the Legislature to shield artists from harm are being used as a sword against talent

managers, who are otherwise performing in good faith services for which artists

have freely bargained for and ratified by receiving the benefits thereof. Chip

Robertson, Note, Don’t Bite the Hand That Feeds: A Call for a Return to an

Equitable Talent Agencies Act Standard, 20 Hastings Comm. & Ent L.J. 223, 264-

65 (1997).

The Act purports to regulate a “talent agency,” defined as “a person or

corporation who engages in the occupation of procuring, offering, promising, or

attempting to procure employment or engagements for an artist…” by establishing

standards for agents’ conduct with artists. Cal. Lab Code § 1700.4 (West 2011).


3

The Legislature was concerned about females being lured into prostitution under

the auspices of furthering their careers. James M. O’Brien III, Comment,

Regulation of Attorneys Under California’s Talent Agencies Act: A Tautological

Approach to Protecting Artists, 80 Cal. L. Rev. 471, 493 (1992) (citing The

Licensing and Regulation of Artists, Personal Managers, and Musicians Booking

Agencies: Hearings Before the California Legislature Senate Committee on

Industrial Relations 222 (1975) (testimony of Roger Davis, First Vice President of

the Artists' Managers Guild)). The regulation was enacted to also address similarly

important concerns about minors being sent to work in bars or other unsuitable

locations and managers fee-splitting with venues that booked artists. Id.

The 1943 California Talent Agencies Act evolved from only generally

regulating employment in 1913, to the 1978 version that specifically applied to

talent agents. After the Labor Commissioner decided not to establish a separate

licensing scheme for personal managers, Marathon Entertainment Inc., v. Blasi, 42

Cal. 4th 974, 984-85 (Cal. 2008), the regulation’s name changed from the Artists’

Managers Act to the Talent Agencies Act. O’Brien, supra, at 493. The Act was

further amended in 1982, to, in part, create an Entertainment Commission, exempt

procurement of recording contracts from the Act, and allow for an unlicensed

person to procure employment with and at the request of a licensed talent agent.

Marathon, 42 Cal. 4th at 985. In 1985, the Entertainment Commission noted that


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any and all procurement of employment came under the Act and that the Labor

Commissioner has acted accordingly, including establishing that attorneys come

within the purview of the Act. O’Brien, supra, at 496.

The Act however, has not kept up with the changes in the entertainment

industry. “As talent agencies increased in size…agents could no longer give their

clients the personal attention they had in the past,” thus managers became more

customarily involved in day to day work with artists and interfacing with their

agents. Howard Entertainment, Inc., v. Kudrow, 208 Cal. App. 4th 1102, 1109 – 10

(2012). Accordingly, the roles of agent and manager became less distinguishable,

tending to overlap. Marathon, 42 Cal. 4th at 980 (Cal. 2008). The Court observed

that “[t]the occasional procurement of employment opportunities may be standard

operating procedure for many managers and an understood goal when not-yet-

established talents, lacking access to the few licensed agents in Hollywood, hire

managers to promote their careers.” Id.

In spite of the increasing industry reliance on managers, they have suffered

an estimated total loss in revenues of $250,000,000 in the last forty years as a

result of artists using the Act to avoid paying due commissions for received

services. Richard Busch, Walking on the California Talent Agency Act’s Thin Ice:

Personal Managers Beware!, Forbes (March 25, 2013, 11:19 AM),

http://www.forbes.com/sites/richardbusch/2013/03/25/walking-on-the-california-



5

talent-agency-acts-thin-ice-personal-managers-beware/. Indeed, Marathon held

that the Labor Commissioner’s “views are entitled to substantial weight if not

clearly erroneous” such that all unlicensed employment procurement was violative

of the Act, and therefore unlawful. Marathon, 42 Cal. 4th at 987-88. However,

although also resolving to apply the TAA even to incidental procurement,

Marathon did so only on statutory grounds. Id. at 988.

Additionally, the Marathon Court expressed concern that although

“[a]dopted with the best of intentions, the Act and guild regulations aimed at

protecting artists evidently have resulted in a limited pool of licensed talent

agencies, and in combination with high demand for talent agency services, created

the right condition for a black market for unlicensed talent agency services.” Id. at

997. The Court described the resulting remedies for talent under the Act as a “blunt

and unwieldy instrument.” Id. (observing that the ability for talent to void any

contractual agreements to pay managers’ fees that are construed as related to

procuring employment “may well punish most severely those managers who work

hardest and advocate most successfully for their clients, allowing the clients to

establish themselves, making themselves marketable to licensed talent agencies,

and be in a position to turn and renege on commissions”).

The resulting inequity from the Act’s current enforcement does not comport

with the legislative objectives of the Act, nor does it serve the entertainment



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industry or artists overall. Procuring employment produces no harm to an up and

coming artist whose earning power is too small to attract a licensed agent. The

threat of immoral talent agents promising work to aspiring artists being lured into

establishments of ill repute is not being protected simply by requiring a license for

procurement.

The other parts of the Act can still be enforced without punishing people

who are in no other way violating the Act, or any other California law. The moral

concerns of the Legislature are not addressed by punishing unlicensed procurement

and requiring agency licenses. E.g., Jim Herron Zamora, Talent Agent Held in

Sexual Assaults, L.A. Times, Oct. 8, 1992, at B1 (one of several reported incidents

of moral conduct violations by licensed agents). Yet, as attorneys acknowledge off-

the-record, artists may, in bad faith, use the TAA to get out from under an

otherwise lawful contract on the technicality. Therefore, “[i]s it likely that

managers will invest time and money developing an artist while knowing that they

will never be paid for it?” Edwin F. McPherson, Is the California Legislature

Listening?, 35 L.A. Law. 48, 48 (May, 2012). The Act’s current enforcement does

no justice to managers and is not protecting talent as much as it is protecting agents

and constraining an industry.


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1. Employment Procurement Does Not Interfere With the Act’s

Intended Protections.

The Talent Agencies Act addresses particular concerns in keeping with the

Legislative purpose of protecting artists. A moral character application is required

(§§ 1700.6, 1700.7); workplace safety is regulated (§ 1700.9); a separate client

trust account is mandatory for fees collected on behalf of talent (§ 1700.25), and a

surety bond is also required (§ 1700.15). Additionally, the Act protects talent from

being sent to an unsafe prohibited place (§ 1700.33), minors from being sent to a

“saloon” or “place where intoxicating liquors are sold to be consumed on the

premises” (§ 1700.34), and it prevents talent agencies from knowingly permitting

“any persons of bad character, prostitutes, gamblers, intoxicated persons, or

procurers to frequent, or be employed in, the place of business of the talent

agency.” (§ 1700.35).

The protections promulgated in the Act, in response to legitimate concerns

about harms, may be left in tact without unjustly enriching artists who are not

victim to any of these abuses, but rather converting the TAA into a tool for

avoiding contractual commitments. Presently, however, artists get out of their

contractual obligations simply by alleging that managers or producers engaged in

efforts to launch the artist’s career, or secure a promotional or performance

opportunity as unlicensed procurement. The resulting harm is only to the procurer.


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2. Under Current Enforcement of the Act, Artists Are Unjustly

Enriched and Given a Tool to Avoid Contractual Commitments.

The Entertainment Commission wanted to strictly enforce the Act’s

prohibitions against unlicensed procurement of employment in order to compel

adherence to the Act. Waisbren v. Peppercorn Prods., Inc. 41 Cal. App. 4th 246,

258 (1995). The result, however, is a bastardization of the intent and purpose of

Act that has been used, not to protect talent, but to hurt managers.

Talent contracts with managers and others have been voided merely because

the work the person did was construed by the Labor Commissioner as procuring

employment, thereby justifying disgorgement of the service provider’s expectancy

interest. E.g., Park v. Deftones, 71 Cal. App. 4th 1465, 1465 (1999) (where a music

band manager was not paid due commissions because of evidence presented to the

Labor Commissioner that the manager had procured performance engagements

while also trying to obtain a recording agreement); see also, Krutonog v. Chapman,

No. TAC 3351 (Cal. Lab. Comm’n Oct. 31, 2012) (where a producer, who

developed a project over ten years after optioning life story rights and selling a

reality television show, lost more than half a million dollars in commissions

because his producing work was construed as unlicensed managerial procurement);

and Marathon Entertainment, 42 Cal. 4th at 998 (personal manager unable to

recover a commission for having procured a lead role in a television series for an


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actress who benefited from the manager’s ongoing financial, professional, and

personal support).

Most absurdly, even a partnership agreement was of no avail to the person

expecting a ten percent commission for co-creating a fitness program, but

receiving nothing for his time and effort when securing promotional spots for the

program on television was deemed procurement. Billy Blanks Jr. v. Ricco, No.

TAC 7163 (Cal. Lab. Comm’n Jan. 9, 2009). These are just a few examples of

unjust enrichment that does not serve the Act’s overall protective purpose because

it does nothing to protect the artist from the dangers associated with the immoral

conduct concern. There is no harm to an artist if none of the Act’s other provisions

are violated. There is, however, injustice and serious economic harm to the person,

who in acting in good faith in serving the client, is victimized by the artist’s

manipulation of the Act.

B. The Talent Agencies Act’s Prohibition Against Unlicensed Employment

Procurement Does Not Satisfy Due Process Standards Required to

Justify State Regulation.

Social and economic policy or statutory classification, if it does not infringe

on fundamental constitutional rights (such as free speech), may be upheld when it

bears a rational relation to a legitimate legislative purpose and is neither arbitrary

nor discriminatory. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993).

This Court held that a statute passes constitutional muster if it is “rationally related


10

to a legitimate state interest.” Merrifield v. Lockyer, 547 F.3d 978, 984 fn. 9 (9th

Cir. 2008). For example, consumer interests and regulation of public health are

considered legitimate government interests. Id. at 986. “However, if the statute is

unrelated to these interests, [it] lacks a rational basis. Id. (emphasis in original).

Additionally, a statute constitutionally can prohibit an individual from

practicing a lawful trade only for reasons related to his or her fitness or

competence to practice it. Griffiths v. Superior Court, 96 Cal. App. 4th 757, 770

(2002) (citing Hughes v. Bd. of Architectural Exam’rs, 17 Cal. 4th 763, 788 (Cal.

1998)). A licensing statute is constitutional only if there is a “showing of a nexus

between the licensee’s conduct and the licensee’s fitness or competence to

practice.” Marek v. Bd. of Podiatric Med., 16 Cal. App. 4th 1089, 1096 (1993).

Government regulation satisfies judicial review of the due process rational basis

standard as long as it can be rationally surmised or hypothesized that the enactment

is “procedurally fair and reasonably related to a proper legislative goal and public

interest.” In re Arthur W., 171 Cal. App. 3d 179, 185 (1985).

The Talent Agencies Act’s prohibition on unlicensed procurement of

employment is without a rational basis. It is distinguishable from licensing regimes

that are held to meet due process standards such as, for example: medical care

licensing, see, e.g., Griffiths, 96 Cal. App. 4th at 769-70 (holding that enforcing

conduct standards related to convictions involving alcohol consumption as part of


11

medical licensing requirements were valid exercises of state police power);

psychological treatment, see, e.g., Rand v. Bd. of Psychology, 206 Cal. App. 4th

565, 582, 590 (2012) (holding that practicing forensic psychology is subject to

professional conduct standards and licensing regulations and that the potential for

harm to psychological services to consumers provides the necessary nexus even

without harm having occurred); pest-control, see, e.g., Merrifield, 547 F.3d at 988

(“California has a legitimate public health interest in requiring all structural pest

controllers to obtain a license [and be trained].”) (emphasis in original); gun sales

are justifiably regulated, e.g., Baer v. City of Wauwatosa, 716 F.2d 1117, 1123 (7th

Cir. 1983) (concluding the substantive validity of governmental licensing

requirement given the danger to the public innate in gun sales); and interior

designing poses safety risks justifying regulation, see, e.g., Lock v. Shore, 634 F.3d

1185, 1196 (11th Cir. 2011) (upholding Florida’s licensing requirement was

upheld based on a legitimate state interest in protecting public safety by ensuring

that interior designers were trained to comply with fire and building codes)

(emphasis added). Lastly, this Court found that mental health services for minors is

justifiably regulated and meets rational basis review because of the government’s

interest in the protecting the well-being of minors. Pick Up v. Brown, No. 12-

17681, 13-15023, 2013 WL 4564249, at *11-12 (9th Cir. Aug. 29, 2013). The

common denominator in these holdings is health, safety, or training requirements.


12

Additionally, they protect against grave harm that may result from these services

being done improperly; hence, the regulations satisfy the nexus requirement under

rational basis review. These justifications do not apply to the Labor

Commissioner’s enforcement of the TAA against managers, producers, or business

partners who happen to secure engagements that benefit their clients.

The Labor Commissioner has equated the TAA requirement to that for real

estate and liquor sales. Derek v. Callan, No. TAC 18-80 (Cal. Lab. Comm’r Jan.

14, 1982). The harms resulting from the reckless unregulated sales of homes are

indeed life-altering. The same is true for sales of potentially deleterious substances

such as liquor. Unlike the aforementioned licensing requirements that involve

health, safety risks, training and/or education, however, the TAA has no such

requirement. No similar risks of harm result from unlicensed procurement of an

opportunity from which talent benefits. The individual artist is enriched indeed,

albeit unjustly. The artist class as a whole will not. Marathon, 42 Cal. 4th at 998.

Additionally, the fact that recording contracts are exempt from the Act’s

alleged protections reveals the irrationality of the remaining ban on procurement.

Firstly, the music industry offers as much potential harm as any other

entertainment sector, and secondly, it is irrational that the same individual artist

may be able to have his manager procure a recording contract, but not a public

performance or appearance in film or on the Internet that furthers his career.


13

The Talent Agencies Act is more similar to licensing regimes held to be

irrational and unconstitutional. Rules of construction require interpreting statutes to

ensure that they meet the Legislature’s intent to be Constitutional. Griffiths, 96 Cal.

App. 4th at 769. Consequently, not all licensing regimes are upheld as

Constitutional. This Court held that it was unconstitutional for the state to require a

hair stylist to get a cosmetology license. Merrifield, 547 F.3d at 984, 987 (this

Court agreeing “that the only imaginable justification [of the regulation] was

economic protectionism of the cosmetology industry which it deemed

illegitimate”); see Cornwell v. California Bd. of Barbering and Cosmetology, 962

F. Supp. 1260, 1274 (S.D. Cal. 1997) (holding that requiring a masseuse to get a

cosmetology license to cover some overlapping services, or otherwise bar her from

working as such, was a deprivation of her property rights, a restriction of her

liberty, and unconstitutional); see also, Whitcomb v. Emerson, 46 Cal. App. 2d 263

(Cal. 1941) (holding that an unreasonable interference with one’s livelihood in a

legitimate business is an unconstitutional deprivation of one’s property rights and a

restriction on one’s liberty). Whitcomb, though older, has not been overruled.

This Court approved of the Sixth Circuit’s determination that the

government’s inclusion of casket merchants within the licensing requirement for

funeral directors violated due process. Merrifield, 547 F.3d at 985 (citing

Craigmiles v. Giles, 312 F.3d 220, 222 (6th Cir. 2002)). The Court concluded that


14

the licensing law imposed a licensing requirement burden upon casket merchants

merely “to prevent economic competition” with funeral directors. Craigmiles, 312

F.3d 220 at 225. As such, the law failed rational basis review. Merrifield, 547 F.3d

at 985. Accordingly, it is exactly this type of protectionism at issue that prohibits

managers from procuring employment under the TAA. One attorney who has

frequently written about the inequities the Act observed that the Association of

Talent Agents (ATA) is very vocal about maintaining the TAA’s contemporary

enforcement and even challenged an amendment proposed by the Beverly Hills

Bar Association to exempt lawyers from the Act. McPherson, supra, at 48.

Prohibiting unlicensed employment procurement by talent managers or

producers is not a legitimate government interest because there is no nexus

between the regulation and the harm. The harm that the TAA seeks to prevent is

separate from the act of procurement. The protection only relates to the means of

procurement, which may still be regulated by the Act. There is no protection to

anyone, other than talent agencies, arising from disgorgement of fees that would

otherwise be perfectly lawful. Under these circumstances, the licensing scheme

exceeds its authority under rational basis review when it unjustly enriches a

beneficiary of services that are performed no more or less harmfully, with or

without a Talent Agencies license. When the contract between manager and artist

would otherwise be lawful, it should not be voided simply because the manager


15

does not have a talent agency license that does not involve any special training or

education. In New York, the other major entertainment industry jurisdiction, the

General Business Law regulating employment agencies does not promulgate a

private right of action; the remedies are purely administrative. See, Rhodes v. Herz,

84 A.D. 3d 1 (N.Y. App. Div. 2011). Additionally, there is a safe harbor for

incidental procurement in “the business of managing entertainments, exhibitions or

performances.” N.Y. Gen. Bus. Law § 171(8).

CONCLUSION

The Talent Agencies Act was intended to protect artists; it should not be

sanctioned as a weapon against their managerial representation, producing or business

partners, or lawyers. The prohibition on unlicensed employment procurement is wholly

disconnected from the harms that the Legislature is rationally interested in protecting.

There is nothing rational about voiding contracts that were freely bargained for because

procurement was unlicensed when the requisite license requires no training or education

whatsoever. This Court should find the prohibition on procurement of employment to be

inconsistent with rational basis review and unconstitutional.


16

This brief was researched and written by Orly Ravid, a student in the Amicus

Project Practicum at Southwestern Law School, under the supervision of the undersigned.

Dated: October 16, 2013 Respectfully Submitted

______________________

s/ Robert C. Lind

s/ Michael M. Epstein

Pro bono attorneys, THE AMICUS PROJECT AT SOUTHWESTERN LAW SCHOOL


Documents

Amicus Project at Southwestern Amicus Curiae Brief