LEGALLY SPEAKING, IT DEPENDS: Agent Secrets

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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There are no secret handshakes or midnight dropoffs at undisclosed locations. There is little international intrigue involved in the job (usually.) In fact, there should be very little mystery involved at all in what they do and who they are. But still there is a mystifying aura in the minds of many when they consider just who is an agent and what do they do. This article will attempt to explain just who Hollywood agents are in general and what they can do (and can't do) for you. Your mission, if you choose to accept it, is to take in this information and learn for yourself what an agent can do for you specifically and what to expect if you choose to get one.

The industry role we've come to refer to in shorthand as an “agent” derives its name and lots else from preexisting, general precepts. The legal concept of agency usually governs when one person (the agent) is granted the power to act on behalf of and subject to the control of and restrictions imposed by another person (the principal). In this general agency relationship the agent is restricted to acting for the principal only within the purview directly granted to the agent, only for the time such grant is in force and is required to act to a higher degree of responsibility while acting on behalf of the principal. That higher degree of responsibility is often described as a fiduciary duty because of the relationship of trust and confidential nature of discussions when acting in the interests of the other.

Agency does not rise to the level of power of attorney where the empowered entity is allowed to make decisions for the subject in the realm described by the grant of power of attorney. (e.g. medical power of attorney to make medical decisions for someone who is unconscious or incapacitated when they need immediate urgent care). An agent is subordinate to the principal and all decisions must be given to the principal to make, though the agent may be given the authority ahead of time for some expected decisions. Whereas a person with power of attorney can act and bind the grantor to the decisions made by them, an agent cannot act in the place of the principal, binding them to decisions. The principal is still in charge of their choices, even if they have an agent representing them in negotiations.

What the industry understands an agent to be is in fact defined by the state government as the equivalent of being an employment agency, empowered to find employment for its clientele. Because of the potential fiduciary duty granted an agent, most state governments want to assure that those providing the service live up to an agreed standard of care within their borders. Every state is different in how it treats agents so you have to look to the laws of the state in question as to what an agent working in that jurisdiction is allowed or required to do. Since the entertainment industry is most readily practiced in two locations, Los Angeles and New York, (and because California and New York take very similar approaches to handling agents) we will concentrate on the commonalities between these two locales.

These states (as well as many others) require that individuals seeking to practice as an agent within their borders qualify for and apply for a state issued license and abide by their strict rules governing agents in order to maintain that license. Only licensed agents are allowed to act as agents. The rules may differ in fact but there are commonalities in how they are targeted at protecting the principals who seek agents to work for them.

Common rules that agents must follow often include:

Licensing fees for agents are not cheap and must be renewed on a fairly regular basis.

As we've covered before, agents are one of many potential forms of representation for your interests. Agents are distinguishable from managers and lawyers by their licensing and special responsibilities and allowances.

Managers can manage a career or business interests, but they are not allowed to get you work. Managers are not licensed or governed by special state restrictions. They can be producers, they can charge much higher percentages or take direct fees. You should take care in hiring a manager as you would any other beneficial employee. Just as you may hire a personal hairdresser because you need to look your best at all times outside of being on set, you may hire a manager to handle the business side of being a Hollywood entity. Mangers are only as necessary as the benefit they provide you to do your job. They must be judged on what they can provide and it is up to you to determine if their cost is worth it to you.

Lawyers can negotiate in your stead with production companies. Lawyers can represent your interests in many ways (even reaching power of attorney levels of fiduciary care). Lawyers cannot get you employment. They can charge fees as they see fit for their services. Lawyers can be of great help within the realm of what they can do for a client. But they cannot do the job of an agent.

Being clear on who can do what can get you far in understanding who you need to turn to get what you need done. But the language used often doesn't make it easy.

Often Hollywood says one thing and means another. It can be confusing. Here are a few key definitions that might be handy to keep reminding yourself when dealing with agents to try to make sense of things.

Client = employer. This one is the trickiest to keep in mind. YOU are the person who hires the agent even though they call you their client. You are the principal. You determine when the relationship starts and ends. The agent can accept or reject your request of representation or resign like any other employee. But you are in the driver's seat. The agent works for you. (Even they tend to forget this.)

Talent Agent = Employment Agent. Because the licensed agent is the only one allowed to get you future work, they are most like the person at the employment agency that tells you what interviews you can go on. Remembering this analogy will benefit you when thinking about what an agent can and should do for you.

Literary Agent = may mean screenwriting, may mean print publication only. This is the type of agent that handles the written word creator. It depends on the type of contacts this agent has as to whether they can handle you as a screenwriter or novelist or both.

Agency = a group of licensed agents and others who aggregate their contacts and skills to work together. Though often referenced as, “I signed with a big Agency” in fact, you sign with a single agent at that agency. The affiliation and reputation of the Agency can lead to easier door openings and packaging, but, your representative is still the one agent you have a relationship (read: contract) with. The fact that agents are separate from others at an agency is the only reason why some agencies are able to package, produce, manage and otherwise play in games that agents are forbidden to do.

Agents are only as good as their connections. Or, to be more precise, only as good as their ability to make connections that do you well. It might be easier for a writer just starting out to find an agent somewhere outside of L.A. or New York that is willing to take you on as a client. Before you happily sign with them you need to consider whether they are going to have the contacts necessary to advance your career. If an agent can't help knock on the doors you need to get your work to, they are no better than not having an agent. Hollywood is a town of close networks. Outsiders have a hard time getting the time of day. A good agent for you is one who has a network of contacts already established that could benefit you in getting your work seen by the right people. A boutique agent with a small number of trusted contacts might be exactly enough to get you in front of people who will read your work. A new agent at CAA might not have any doors they can knock on and get an immediate audience.

Of course, if an agent has a lot of contacts that work, they likely have a large stable of clients that already fill those opportunities. A hungry agent willing to build their reputation might be willing to take your promising work as the impetus to widen their networks. You might both benefit from taking a chance with one another, so don't rule out anyone without considering potentials as well as established track records. Reputation and hustle both matter.

The real question should be why use this agent? Getting an agent who doesn't get your work, or doesn't have contacts that would get your work, is wasting time for both of you. Finding an agent that understands you as an artist, gets you where you want to go and is able to help get you there is the key. Not any agent can do that for you. You need to keep looking for that perfect fit. It is a difficult thing to find.

And remember that search and finding that fit once you do get some traction with your career. Loyalty to an agent who gave you that shot before you were the name you've become means something. As long as it is not limiting furthering your career there is something to be said for keeping your contacts intact. Especially considering what you should be doing once you've found an agent anyway.

And remember, an agent isn't a necessity. You can get by without one. Some people do quite well without ever having an agent in their corner. But an agent with the right connections to help you can often make things easier.

The same as always. Just because you have representation doesn't mean you need to stop hustling. If you are represented by one of the big agencies, great. That doesn't mean you should sit back and wait for the phone to ring. If you have connections you can use to get your work out there, use them. If you hit that door that stays closed until your agent calls them, then get your agent to make that call. It is still your career. Regardless of the agent you have working for you, or how much work they put into it, they get their commission if you get the job regardless of who did the legwork. But you get the job. And you keep working. So keep working to keep working and if the agent gets you more opportunities than you had before, that's a bonus.

The easiest time to find an agent is when you don't need one. Seriously. An unsold writer is difficult for an agent to assess. Yeah, they might read and like your script, but, committing to establishing an unknown quantity is hard work. And they don't get paid until you've made that first sale, which may be a while.

Win a screenwriting contest or get a producer to option your material and suddenly you've lost a bit of that unknown quality. Others have evaluated your work and found it interesting. It'll be easier for an agent to get doors to open when you've gotten some notoriety. So don't be surprised if after you've started to get noticed in the industry you get calls out of the blue from agents asking if you are looking for representation. If you find their offer interesting, evaluate what they can do for you and decide. You're in the driver's seat, remember?

And if you have a current agent who is not fulfilling your needs, it may be time to look for another. Remember that you are the principal in this agency relationship. You hired your agent. If you hired a professional to mow your lawn so you could do other things, but, don't like the quality of the job now being done, you look for another groundskeeper.

Remember, when it comes to agents, it depends… on you.

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