Tuesday, May 15, 2012

Thoughts on Representation

I recently accepted an invitation to appear on a panel dealing with copyright and trademark issues for a local writers' organization. Four of the five panelists were lawyers, two of whom also said they were agents for writers. I think there is an inherent conflict of interest in that designation.

As a lawyer, I know my duty is to my client. I have to perform due diligence to make sure I do not have a conflict in representing an old client when I take on a new client. Disclosures must be made and releases sometimes need to be signed.

 An agent can, and frequently does, represent a number of clients who are looking for work (or contracts, in the case of a prose writer) in the same places. These clients are, in essence, competing against each other. 

An agent, by definition, is supposed to be working on behalf of his or her principal and, in law school, I thought I was taught there were fiduciary duties involved in that relationship. Now, I am not so sure agents see it that way. While I think that the agent does have a fiduciary duty to the writer or photographer or artist he or she represents, I have heard too many stories of creators whose agents failed to send on royalty payments or who inserted clauses into contracts which benefited the agent but which were no benefit to the creator. A lawyer should bring independent eyes to a contract review, and know that duty lies not to him or her self, but to the client.

Back in the day when I was a full-time photographer (and never had an agent except for stock work which was a 50/50 split), photographers' agents might represent non-competing photographers, such as a fashion photographer and an architectural photographer.  But many agents worked exclusively with a single photographer, earning a commission on the order of 35%. (To be fair, a lot of the time a photographer's agent was often the photographer's spouse and I always thought that having an agent taking 35% was like being married to someone without the benefits.)

Book agents, by comparison, worked with many writers and took a commission of 10% (now the usual fee is 15%.)  Legitimate television and film agents, because they are in the business of "procuring employment" are still limited by law in California to 10%, but large agencies can circumvent this by "packaging" a project, where they are allow to commission at a higher rate against the project, but cannot then take a commission against individual talents.

Here in Hollywood, there are people called "managers" who are unregulated as to what they do and how much money they can charge for commissions. They are not supposed to be "procuring employment" but many of them do just that. They also charge 15% and up for what they do.

I've heard tales of people who call themselves "agents" and then change the designation to "manager" or, worse, say they are "producers" and really screw over writers who are hoping to make an impact in Hollywood. I call them barnacles, a term of art I learned at some MCLE program or another. You do not get to change your title mid-stream. You do not get to attach yourself to a project and kill it for your principal if you don't get what you want for yourself.

Lawyers are highly regulated and licensed. Agents who "procure employment" for talent are also regulated and licensed. Managers have fought tooth and nail to avoid any kind of licensing or regulation. Literary agents, meaning those who represent prose writers, and artists' agents do not appear to be licensed beyond having a business license wherever they set up shop, although I know that there is are some trade associations for them. I've known some good and honorable agents. I've also been told tales of horrible agents. And my friends Victoria Strauss and Ann Crispin have spent decades watching and reporting on the scammers out there, who steal money and dreams from aspiring writers. (Check out Writer Beware to see the good work they do.)

There is something about a lawyer claiming simultaneously to be an agent that makes me very uncomfortable. I've been in the position of negotiating (and getting) points in a contract that the agent for our mutual client refused to take up because it might affect some other deal they had in the works. This is not a good thing, and if the lawyer and agent were the same person, it could lead to a malpractice claim down the line. Malpractice is my worst nightmare.

So, if you are in the market for a lawyer or an agent or even a manager, don't look for one in the phone book. Do some investigating before you sign any agreement with any representation. Use the Internet. Ask for references. Talk to some of their other clients. Remember, it's likely to be a relationship like a marriage without the benefits.

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