This week, I’m going to focus on an issue that’s been a recent topic at the Hollywood Happy Hour Yahoo group. Hollywood Happy Hour is a networking group that Nelson Aspen and I founded several years ago. This particular issue has been hotly debated both on the group and in private emails. The basic question is this:

What is the legal limit on agency commissions for nonunion work?

First, if you want to read California Labor Code 1700 for yourself (some people are into dense legalese), click here for a PDF.

If you prefer a bullet-point style presentation of basic information on this particular part of the code, the Association of Talent Agents has a nice run-down here. Included in their synopsis is this:
Talent agency must file the Schedule of Commission Fees with the Labor Commissioner. The fee schedule is to be posted in the agent’s office. Generally the Labor Commissioner will approve up to 20% maximum. However, Guild franchise agreements limit the commission to 10%.

From SAG’s rule 16(g):
The agent may not receive for agency services in the motion picture industry from an actor a higher rate of commission than ten percent (10%), directly or indirectly, or by way of gratuity or otherwise.

So, does that mean that SAG actors’ agents are capped at taking a 10% commission and nonunion actors’ agents are capped at taking a 20% commission? Oh, don’t you wish it were that simple?!?

See, there’s currently a lapse in the SAG Franchise Agreement for most agencies in operation. So, even though SAG does have a commission limit for agencies that are SAG-franchised, many agencies simply are not franchised right now.

From the SAG topic: “Who May Represent Me?”
SAG members who choose to secure the services of an agent may be represented by either an Independent Agency (i.e. one that is SAG franchised), or one that is affiliated with either the Association of Talent Agents (“ATA”) and/or the National Association of Talent Representatives (“NATR”). SAG’s franchises with agents that are members of the ATA and/or NATR have ended. However, pending further review, SAG’s National Board of Directors has temporarily suspended application of Rule 16(a) of the Rules and Regulations section of the SAG Constitution, which requires SAG members to be represented only by a franchised agent.

Without that protection, where does that leave the commission cap? Well, the one protection that exists for actors, regardless of their union membership (or lack thereof) is state-license status. If your agent is a state-licensed talent agent (and both California and New York require that talent agents be licensed by the state, fingerprinted, bonded, etc.), his or her commission rate must have been approved by the state in which he is licensed. These rates also must be posted at his or her place of business. The state will scrutinize quite stringently any commission rate that is out of line with the regulated amounts set forth by groups such as the ATA, NATR, SAG, and the like.

If you are given an agency contract which does not spell out the percentage of the standard commission, you have just encountered someone who is breaking the law. Unless of course that agent is not licensed by the state, in which case he or she is attempting to enforce an illegal, unenforceable contract. In some cases, that “agent” is subject to criminal charges.

Okay, so what if you’re being hip-pocketed by an agent and don’t have a formal contract? Well, that’s part of the reason people like my colleague Mark Sikes recommend strongly that you never accept a hip-pocket deal. I, on the other hand, think a hip-pocket deal can work out very well. For example, when you are repped commercially and hip-pocketed theatrically at the same agency, that provides a little better-grounded status, since you’ll have a contract for services in one department of the agency, and you can simply stipulate that, before any theatrical deal generated during the hip-pocket period become “official,” a theatrical agency contract be drawn up. I’ve seen that sort of thing work out quite well for more than a few actors.

Managers, who are largely unregulated by state labor codes and the actors’ unions, can take as much as a 25% commission on performers’ gross income. Managers who are members of the Talent Managers Association are capped at a 20% commission for modeling and music; capped at 15% for — get this list — film, television, live theatre, publishing, licensing, merchandising, commercials, industrials, live performances, personal appearances and/or any other related fields. Wow! [Note: I’m working on a column on the difference between agents and managers, what you should expect from each, when you need which, etc.; so feel free to shoot me any questions of that nature!]

So, what is the legal limit on agency commissions for nonunion work? That’d be a big ol’ “it depends.” Check your contract first, then check to be sure your agent is licensed by the state. If your contract doesn’t spell out an exact amount and your agent is state-licensed, he or she is breaking the law and risks losing his or her agency license. Whether your contract does or doesn’t spell out an exact amount, if your agent isn’t state-licensed, that person isn’t legally an agent and could be criminally charged for misrepresentation and fraud. The contract is void anyway. If your contract does spell out an exact amount and your agent is state-licensed, plan to pay commissions as you contractually agreed to do.

Note: ACTRA’s Entertainment Industry Coalition has a much more straightforward guideline for commission caps: 10% on theatre bookings, 15% on film and television bookings, and 20% on print jobs.

Helpful links:
How to find out if your agency is licensed by the State of California.
How to find out if your agency is SAG-franchised.
How to find out if your agency is AFTRA-franchised.
AEA’s information on franchise agreements.

Wanna be sure your tools *and* your mindset are in peak form so you’re ready for your next booking? Let us get you in gear with some FREE training right now!

Let’s DO this!

bon


Bonnie Gillespie is living her dreams by helping others figure out how to live theirs. Wanna work with Bon? Start here. Thanks!


Originally published by Actors Access at http://more.showfax.com/columns/avoice/archives/000342.html. Please support the many wonderful resources provided by the Breakdown Services family. This posting is the author’s personal archive.

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5 Comments

  1. Stephanie Leah March 21, 2020 at 4:16 pm

    Curious here. My agent is state-licensed and SAG franchised. I believe she is engaging in double-dipping. She took a 20% commission from production plus 20% from my earnings. I have read this is against SAG franchised agency regulations, not illegal. I confronted her and she told me that the state-licensed board allows her to take the 20% from me. Something seems fishy to me. And yes, I signed a contract with her stating the 20% fee…but even if production pays her???

    Reply
    1. Bonnie Gillespie March 21, 2020 at 4:46 pm

      Hi Stephanie. You don’t say whether this booking was union, but we usually see the 20% + 20% thing done when it’s a nonunion buyout or some other type of booking where the agent will not be making any future money off residuals or anything like that. There is no current union franchise agreement so when someone says they’re SAG franchised, they usually just mean that they’re following the old (fractured, expired) agreement *or* they’re ATA members using a SAG-approved GSA for your contract. Either way, this is a fairly common practice and especially if it’s spelled out in your contract, it’s quite literally part of your deal!

      In general, when production pays an additional percentage to the agency, it’s in the hopes that they won’t deduct from YOUR pay as well, but unless the deduction takes you below union scale on a union booking, it’s all perfectly legal. And, again, usually this sort of thing happens on nonunion bookings vs. anything SAG-AFTRA would actually regulate.

      If this experience shows you that this is not a hell-yes rep for you (Google “Bonnie Gillespie hell yes rep” if this phrase is new to you in our Self-Management for Actors world), then use the energy not to fight this issue but instead to research the next-tier hell-yes rep you can leave this agent for when your contract term is over, and spend time getting all your materials together to be a hell-yes match for THEM when you submit to them.

      Good luck and, hey, congrats on the booking! How very exciting!! Here’s to the next tier… whether your agent comes with you there or not. πŸ™‚

      Reply
  2. Chantal Martinez December 1, 2020 at 4:54 pm

    Hi Bonnie, I was recently contracted for a non union commercial shoot that paid me $2,000, plus 15% ($300) agency fee (my first job with my new agent). I have never signed a contract with my agent, let alone a contract disclosing what commission she would take from my pay. Now she is trying to take the 15% ($300) agency fee, plus an additional 20% ($400) from my pay. When I confronted her about this additional 20% that we never discussed or agreed upon she said that’s just how it is. My question is if we never had a contract or discussed her commission fees can she legally take it out of my pay?

    Reply
    1. Bonnie Gillespie December 1, 2020 at 5:42 pm

      Congrats on the booking, Chantal! If there’s NO CONTRACT between you and the agent, that’s a good leg to stand on when you connect with an attorney or other legal professional to help you fight for your rights.

      What I would also look for is the agency’s status with the unions, because even if you’re a nonunion actor, if this is an agency that is union-approved (specifically franchised or otherwise working with their blessings), this sort of situation could be something the union could help with. POSSIBLY. Of course, their priority is working with union members, so you may not get too far but it’s worth a shot.

      Finally, I would make sure that you never signed a check authorization or anything when you did the job that allows the agent to take the money directly from the production company or network or ad agency involved with the project you were cast in. The small print in a check autho can often give the agent the money FIRST and then you’re trying to get it from them. Of course, if you already have the check and your agent is trying to bully you into paying more than you believe they have a right to collect, you can simply NOT PAY THEM and let them be the ones to pay an attorney to come after you for the commission they believe y’all agreed to.

      Obviously, I’m not a lawyer and this is not legal advice! You should seek legal advice for sure. πŸ™‚ But just know that anything that’s already this far off from eye-to-eye in your agreement with this important business partner is a sign of something other than a HELL-YES REP. Spend your energy and time doing the work to find the better NEXT agency to sign with, because trust and professionalism are incredibly important and you obviously have the ability to book paid work. Now you need a partner who doesn’t make you feel as though you’ve been forced to do something y’all never agreed to.

      Good luck! Will you come back and let us know what happens? Hope you’ll come join our Self-Management for Actors Facebook group too. Loads of support for you there.

      Reply
  3. John Chance November 3, 2021 at 8:43 pm

    Hello Bonnie. I have a question. I am a non-union actor and I have a non-exclusive agent that submits me for acting gigs. If I get my own work, he gets nothing. If he gets me work he gets 10% (or whatever commission is set up by the client). This past summer, this agent got me a very nice commercial gig and it has the potential for future recurring gigs. However, this agent is quite irrational and seems to have a bit of a reputation for causing drama with his actor clients. He decided to vindictively drop me from the agency and his client roster over a misunderstanding (putting it mildly). He then also rudely emailed me stating that any future jobs from that recurring gig are commissionable by his agency. Is this true? I’m non-union, non-exclusive, no contract, nothing ever signed and no imperative reading of agency policies. If he is no longer representing me, how can he say this? Sounds illegal.

    Reply

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