A rounded and in depth picture of the issues at stake in the Rosa Blasi-Rick Siegel/Marathon lawsuit is found in this piece by Lauren Horwitch at Backstage. She suggests one apparent corrective to the record as it appears in the appellate court decision against Ms. Blasi which I discussed recently on the SAG Actor Bulletin Board – that indeed there is plenty of evidence that Siegel procured work for her.
But that, unfortunately for Ms. Blasi, is not the point of the appellate court’s opinion. Ms. Blasi readily agrees that Siegel did nothing to procure work for her on Strong Medicine – and, perhaps ironically, that is precisely why the court sided with Siegel.
There is a fundamental principal of contracts law at work here that states that if one part of a contract is tinged with illegal activity it is not necessarily the case that other parts of the contract should be invalid. It is only where it is impossible to draw a line between the legal and the illegal activities that an effort to “sever” the contract becomes problematic.
In California, Civil Code section 1599 authorizes a court to sever the illegal object of a contract from the legal. But a court is not required to and historically it appears courts have felt that the need to draw a bright line between licensed talent agent work and unlicensed managerial work was so important that managers should not be given the advantage of severance.
In written agreements, this principle is made explicit in a so-called “savings” clause which might read like this: “If any provision of this Contract is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Contract shall remain in full force and effect.” (In this situation, apparently, there was no written agreement. That is always more likely than not to lead to problems. When written agreements are negotiated between parties it gives both sides a chance to think through what might happen and to establish rules in advance that will apply.)
In other words, if there is some evidence that Siegel did some things in relation to Strong Medicine that were traditional managerial work (e.g., advising Ms. Blasi on the impact of the role on her career) but other things that were traditional agent work (helping to convince the producers to hire Ms. Blasi) then it might be impossible to allocate a manager’s fees from that program to only the legal work. But that does not appear to be the case here where even Ms. Blasi says Siegel did not engage in unlicensed agent type work on SM. Actually, the appellate opinion gives Ms. Blasi at least one more bite at the apple in which she could explain to the labor commissioner that in fact Siegel did have some role in procuring her work on SM and she might then actually prevail.
Of course, the general principle of severability of contracts can work in favor of talent, too, and that may explain the reluctance of the S.A.G. to file an amicus brief automatically on behalf of Ms. Blasi. However, according to the email that Horwitch quotes, the Guild supported depublishing the “erroneous” opinion. The basis of suggesting that the opinion is erroneous is not clear. The email says, properly I believe, that managers should not be paid for procuring work without a license – that is properly the work of agents. Agents are, in fact, agents of the union in a sense becase the Guild is the exclusive bargaining agent of actors and only the Guild can delegate power to represent actors who work in covered productions to others. Of course, it does so because of the unusual nature of work in the entertainment industry where individuals have such specialized talents and make different contributions to different productions.
A similar structure is found in professional sports. Interestingly, the relationship between agents and professional sports unions is now the subject of Congressional investigations with hearings held recently by the House Judiciary Committee and Cong. Sheila Jackson Lee promising to look at the football players union in the new Congress where the union has been challenged by some of its members for actions taken against player agents.
But do actors really think their managers should not be paid for work they properly do? Presumably not. The real problem is drawing the line properly and keeping a limit on how much talent has to fork over to intermediaries in order to protect and develop their careers, which, of course, already suffer from fragility and unpredictability. And that is the reason that Ms. Blasi’s lawyers argue here that there is an important reason to void an entire managerial contract when a manager procures work in violation of the Talent Agencies Act:
“Indisputably, the TAA is a remedial statute intended for the protection of artists. Equally indisputable is the fact that the opinion all but actively encourages unlicensed talent agents to violate the TAA, since the financial consequences – the only possible deterrent under the TAA – of such a violation have been drastically reduced.”
Typically, Supreme Court cases come down to competing stories about how the world does or should work. In this case, the talent side of the story is that managers can use the appellate court opinion to engage in unlicensed work and still find a way to get paid. The manager side of the story is that without the appellate court opinion talent has an incentive to use managers to procure work and then avoid paying them a fee once they secure a job. And hanging over this conflict is the gap that has opened up between the S.A.G. and the ever more powerful talent agencies. Stay tuned as this situation unfolds.