Legally Speaking, It Depends: Representation – Who, What, Why?

Entertainment attorney Christopher Schiller explains the legal differences between representation by agents, managers and lawyers.

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Although covered in many previous ScriptMag.com articles (the most recent being Mario O. Moreno's and likely in many more to come, this article will go into the legal differences between the various forms of representation available to a writer.

My answer to the second half of this question, “It depends.” Since a representative in any capacity is only empowered to act on behalf of the person hiring them, you do not need representation as long as you are able and willing to do the work yourself. Whether you have all the contacts a representative would provide, the knowledge and skillset to get the best deals and the time to do all that work while still doing the job you were hired to do is a question to evaluate yourself.

In its simplest terms, Representation is allowing another person or legal entity to speak and/or act for you in a business context. The extent to which such representation can legitimately act for you varies tremendously. It can be as broad and powerful as a limited power of attorney granted to make all decisions in a particular area or limited in scope to just represent a party in a meeting as their eyes and ears, with no power to act for the individual, just report back what was said and done in their absence.

Regardless of the power exchanged, the extent of any representative relationship is dictated by the terms of the agreement establishing it. This is important to note. Whenever you are considering entering into a representative relationship, READ THE AGREEMENT carefully to understand exactly what you are granting them the power to do-- or not do-- for you.

Another key thing is that, regardless of whether you are hiring an agent, manager, lawyer or some other representative, YOU ARE HIRING THEM. Not the other way around. A lot of representatives like to spin language that makes it seem like they run the show, but, that's just posturing. Of course, they can decide to quit the relationship within the terms established in the agreement between you, just like your neighborhood kid who mows your lawn can decide to quit working for you. As long as you uphold your side of the representation agreement, you are in the driver's seat, something a lot of people with representation often forget.

Although there are some things your hired representatives have in common, there are distinct differences between each type. Knowledge of what each can do -- and NOT do -- for you will come in handy deciding whether or not to take them on your side.

One thing that clarifies a lot of the misconceptions about agents is to remember that “agent” is a short hand term. The long winded term is EMPLOYMENT AGENT. An Agent is someone who assists in finding employment for their client/employer. Each state's legal rules governing agents vary, but, usually an agent must be licensed by a state authority. The terms of that license restrict what an agent can and can't do. The usual rules include that an agent cannot be a producer attached to a client's project. An agent cannot charge a fee for any provided services, but, is restricted to only a percentage – usually capped at 10%-- of the compensation earned by the agent's employer/client. If the representative agreement allows it, the agent can be empowered to negotiate contracts for the client. Agents can also shop around an already written spec script for a writer.

SIDEBAR: Agent

Advantages of agents are usually directly related to the industry relationships the agent has access to. If an agent, or one of their colleagues at their agency can get the writer through the door to take a meeting with a producer looking for a writer for a new project they've optioned or a staff position on a new TV series, then that agent can serve the writer's needs. If the agent in question has no contacts that can fit the type of job the writer seeks, then there is no reason for that agent to be working for the writer. And since most states that license agents are at-will employment states you can fire them with little recourse and find another (as long as you abide by the contractual arrangements in the representation agreement.)

Disadvantages of an agent are the fact that they get their percentage regardless of how much work they put into getting you the job. And that percentage carries on for as long as the project you landed while associated with them continues, residuals, etc. The only limitation on that percentage-of-everything arrangement might be if the union involved has a limitation on agents taking a percentage of a guild minimum. That's why you sometimes see deals for minimum + 10%. The agent has no incentive to get you the job otherwise. And agents often have a large number of clients among their clientele. This is usually because the agent has many, good industry contacts that can benefit the writer, but, will also mean that the agent might be distracted from representing an individual writer/client who isn't “hot.”

Managers differ from agents in many ways, but, the most significant, though often murky one is the fact that managers CANNOT get you a job. They can sell work the writer has already done (specs) or set up meetings that have no direct employment agenda, but, they cannot set up anything that directly leads to employment. This is one of the very few restrictions on what managers can do.

SIDEBAR: Manager

Managers can charge whatever percentage they can get, often 20-25%. They can attach themselves to a client/employers project as producers. Ostensibly a manager is supposed to be focused on the long term career of a writer, keeping their goals in mind. This is often reflected in the argument as to why their percentage is comparatively high. They take on fewer clients so they can concentrate on each one's career and charge correspondingly.

With less of a focus on each sale, a manager can keep a writer's goals on track so they don't get pigeonholed or find themselves out of touch with the market. A proactive manager can be a second advocate on the production team to make sure the writer is respected as decisions are made down the line. The writer can concentrate on writing, if everything is ideal.

Unfortunately, those same advantages can lead to disadvantages if you get a manager that attaches themselves to a project and become an obstruction to its progress. Some producers will think twice before taking on a writer with a manager that appears to them as a leech. You have to be careful in choosing a manager that will actually move your career forward. And because there are very few limitations on a management contract, you have to be very careful in entering into an agreement with one that might not be to the benefit of the writer, or an entangled mess to get out of.

Interesting side note: If a manager is found to have violated the law by attempting to secure employment for a client, courts have been known to find the entire representational agreement is voided and that no money is owed to the manager for any work they may have done. It's a harsh slap on the wrist, takes a full court case to resolve and may not always work, but, there is precedent. Still, it is always more prudent to be careful in the first place entering into a management agreement.

Lawyers are another route to go for representation. I won't go into too many details since it might seem self serving. But to differentiate from the agents and managers, lawyers are usually engaged and paid on one representative project at a time. They are paid a flat or hourly rate or work for a percentage of the deal (typically 5%). But distinct from the others, if the deal goes bust, you still have to pay the lawyer. They cannot find you employment, but, can be used to open doors. Usually it is not based on the personal relationships of the lawyer as with the other representatives, but on the prestige of legal representation and the safety of going through a conduit that understands the legal standing of rights and the like at issue. Having lawyers negotiate deals is kind of what they do. But remember, not all lawyers are created equal. (Same caveat for the other representatives as well.)

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