UPDATED, 5:45 PM: The Writers Guild has issued a statement in response to the ATA’s letter to members. Read it at the bottom of this post.
PREVIOUSLY, 3:22 PM: The Association of Talent Agents said today that it is “evaluating all legal options” to address the WGA’s claim that it has the legal right to deputize writers’ lawyers and personal managers to fill in for the agents they fired this week who refuse to sign the guild’s new Agency Code of Conduct. The ATA has long said that state law specifically provides that only licensed agents – not lawyers and managers – can procure employment for writers.
On Tuesday, the day before the WGA sued the Big Four agencies over packaging fees, WGA West president David A. Goodman told his members that it will continue to encourage its members to allow their managers and lawyers procure employment from them and that the guild will pick up the tab if any legal disputes arise.
ATA executive director Karen Stuart called the WGA’s position “shocking and disturbing.”
“The laws in question were enacted decades ago and have served throughout history as an important protection for artists, requiring that those who represent them meet minimum requirements and subject themselves to state regulation,” she told her member agencies today. “That the WGA’s leadership would now try to deny this protection to its own members, and literally pay third parties to violate a law that has protected writers for 80 years, should be of grave concern to all who believe unions should act in the interests of their members.
“We are evaluating all legal options to address this unlawful conduct. We request that, to the extent you are aware of managers and attorneys who are embracing the WGA’s request to procure and negotiate employment in violation of the law, you track this information and the names of those who are participating in unfair competition, and provide that information to ATA’s attorneys.”
Saying that the ATA is “is confident in our position,” Stuart also said: “The law is crystal clear. As the ATA’s attorney Marvin Putnam of Latham & Watkins explained to the WGA in a letter last week, there are multiple decisions from the California Labor Commissioner holding that no one other than a licensed talent agent—not a manager, not an attorney—can procure employment on behalf of an artist.
“It is important to note that ‘procure’ in this situation includes all negotiations on behalf of an artist. The Labor Commissioner defines procurement to encompass ‘any active participation in a communication with a potential purchaser of the artist’s services aimed at obtaining employment for the artist, regardless of who initiated the communication.’”
This, she said, “is the case even if the talent initially contacts the employer personally and negotiates a portion of the deal herself.”
Stuart said that the ATA has heard that “some employers may be attempting to circumvent this issue by adopting contractual language stating that the managers and attorneys are not offering ‘procurement’ services. They should be aware that there is legal authority holding that a manager or lawyer can be subject to remedies for illegal procurement even if a contract explicitly states that the manager or lawyer will not ‘procure.’ For example, in Doughty v. Hess, the California Labor Commissioner determined that an attorney, who served as a talent manager, had engaged in unlawful procurement when he negotiated compensation on behalf of his client and discussed potential projects with production companies. The Commissioner reached this conclusion even though the attorney and artist had a contract specifically stating that the attorney would not “procure” employment.
“Moreover, the idea being advanced by the WGA that managers, lawyers, or anyone else would be subject to ‘antitrust’ liability for making individual decisions to comply with the law is patently false. Antitrust law, in general, prevents illegal combinations and concerted activity in restraint of trade. It does not—and cannot—prevent managers and employees taking individual actions to comply with legal mandates.
“The WGA leadership’s letter is just their latest tactic to flout established law and take for themselves uncharted power at the expense of not just agents, but of their members, and other stakeholders throughout the industry. As many of you will recall, last month AMPTP Carol Lombardini sent a letter to the WGA leadership declining their request to take actions that would have violated federal antitrust and labor laws.”
Here is the WGA’s response to Stuart letter: “The Supreme Court has noted that the purpose of the Talent Agency Act is to protect artists from the abuses of talent agencies, including the ‘concealing [of] conflicts of interest.’ Marathon Entertainment, Inc. v. Blasi, 42 Cal.4th 974, 984 (2008). It is ironic that the ATA is now using the Act to deprive writers of fair representation while agents demand to continue such conflicts of interest.”