Agents

By Alan S.Gordon
Executive Director, American Guild of Musical Artists, AFL-CIO

Some agents and managers are like tattoos that are acquired in one’s youth: you want one very much, until you’ve got one. After that, they’re both difficult and painful to get rid of.

For decades, singers have complained about unscrupulous agents and managers. Now, AGMA has enacted a “Code of Professional Standards for Agents and Managers Representing AGMA Members”. The Code is designed to prevent unethical practices, give singers greater bargaining clout when negotiating with agents, and protect singers against abuse.

CREATING A STRONGER RELATIONSHIP:
An agent is neither more nor less than a person who acts “in the place of, and for the benefit of, another person”. Although capable of simple description, the legal relationship of agent to client is more complicated and increasingly regulated by law.

Every agent owes their client a “fiduciary duty” -- the ultimate duty of trust in a business relationship. Indeed, there is no greater legal duty owed by one person to another than that of a fiduciary. In such an arrangement, the agent has an obligation to treat the principal’s (client's) interests as deserving a greater degree of protection than the agent’s own interests. In such a relationship, the agent owes his or her principal a duty to act with the highest level of integrity, honesty, fair-dealing and dedication. Many agents do; other agents and managers do not.

Beyond the clear obligations imposed upon agents by their legal “fiduciary relationship”, each state not only regulates the conduct of agents representing talent, but requires that the agent be licensed, and stipulates the maximum commissions they can charge. Notwithstanding the intense regulation of agents and the fiduciary duty they owe to their clients, stories about predatory agents acting in their own interests rather than those of their clients are legendary.

The mutual recognition of this symbiotic interest leads to a relationship where, to a significant extent, the agents and the unions collectively enhance their individual abilities to represent their clients. The agents and the unions became more effective and are, in turn, better able to make deals for the artists they both represented.

AGENTS AND THE OPERA BUSINESS:
In the opera business, the formal relationship between AGMA and agents representing solo AGMA members was pretty much non-existent. An Eisenhower-era document called the “AGMA Authorized Agents Agreement” existed, but was more an historical anomaly rather than a binding agreement. Agents were, if anything, antagonistic to AGMA, and were completely unable to recognize the joint goals that we here shared with them. Problems between AGMA-represented singers and their agents were rampant, however, and few, if any, members knew what to do. Allegations of double-dealing, inappropriate conduct, monthly retainers that produced no jobs, bills for monthly expenses that were never expended, and complaints about unethical behavior were commonplace with regard to the smaller agencies, individual agents and managers.

We asked our lawyers to review the law in the State of New York with regard to the regulation of talent agents. That research led to some surprising discoveries: First, the law mandates that all talent agents and agencies in New York be licensed. Many other states have similar laws. Second, we discovered that an unlicensed agent may not sue in the New York Courts to collect unpaid commissions. Third, that any attempt by an unlicensed agent to collect an unpaid commission is a misdemeanor. Finally, in one of the major court cases that dealt with these issues, the court ruled that simply calling oneself a ‘manager’, (and even actively managing an artist’s career), was irrelevant: If the manager’s primary responsibility or primary activity was to find jobs for the artist, the law deemed that person to be an agent and that person had to be licensed.

This case was crucial to the interests of our members because of another discovery: most of the major agents, and almost all of the minor agents and managers, representing opera singers are not licensed and, as a practical matter, cannot easily become licensed. The fact is, the entire agenting industry is replete with unlicensed agents and managers routinely representing singers, suing for commissions and claiming to be personal managers rather than talent agents, but industry practice is no defense to the mandates of the law.

The law gives us an opportunity to help singers reexamine the overall relationship between them and their agents, and to create a strategy through which we can address inappropriate practices that permeate that relationship.

THE BIGGEST COMPLAINTS AGAINST AGENTS:
Foremost among agent complaints from our members was the allegation that many agents and agencies inappropriately take commissions on per diems, travel allowances and housing stipends. Next was the complaint that, because agents have greater bargaining power, they locked singers into exclusive contracts but failed to deliver sufficient work opportunities. Other members complained about being charged for unspecified expenses -- and many complained about being charged monthly retainers but receiving little, or no, guidance, jobs or help.

In response to these issues, we decided that the best approach might be a tri-partite and long-term approach to the problem. The first step in that strategy was to draft a “Code of Standards”, a document that would establish the basic guidelines for ethical conduct and identify remedies for the sort of problems and abuses reported by our members.

The second aspect of our plan, after our members, their agents and their managers become more comfortable and familiar with the standards, is to incorporate the Code into a formal and binding Agreement that would be offered to agents. As a quid-pro-quo to induce agents and managers to become legally bound to such an agreement, the agreement would also contain a newly created system of arbitration that would make it easier for agents to collect commissions when those commissions were appropriately due.

Ultimately, our third step, once we negotiate the final version of the Agreement with the major agencies involves amending our Constitution and Bylaws so as to require that our members could be represented only by AGMA-Authorized Agents and Managers.

Our Board of Governors has now adopted the “Code of Professional Standards for Agents and Managers Representing AGMA Members” as its first step. When the Agreement becomes the industry standard, and when we have amended our Constitution so that members must use Authorized Agents and Managers only, the relationship between agents, managers and our members will become highly regulated and effectively monitored. But more importantly, inappropriate practices, unfair commissions, illusory expenses and uncancellable contracts will become a thing of the past.