Porn 101: Choosing An Agent – Part 2

In part one of this article ( Please see: https://adultbizlaw.com/porn-101-choosing-an-agent/ ) I discussed whether a performer should choose a bonded and licensed agent, whom those agents are and what does a proper talent agency contract look like. In this article I will discuss what difference moving to and living in Los Angeles can have to a performer’s career and what your agent can and cannot do in regards to their representation.

Moving to Los Angeles?

The decision to move to Los Angeles to pursue a career in adult is not an easy one. Los Angeles can be an expensive area to live. Rents are usually higher then in other non-metropolitan areas ($1000-$3000 per month for a 1-2 bedroom apartment). Food and dining out can be expensive in Los Angeles as well. Obviously anyone can live anywhere on a budget but for the most part it will be more expensive to live in Los Angeles then most places.

However, not living in Los Angeles will likely mean that the performer will be booked less than a performer that lives in Los Angeles. Living in Los Angeles means that you are more available to work. If a performer lives in Oklahoma and a director/producer wants to cast her in a scene, he/she would have to wait for the performer to come to Los Angeles. That is likely not going to happen, unless the performer is a “pornstar.” If another performer “flakes” on the scene then the producer/director will likely call the agent and ask for a replacement performer to be sent to set immediately. A performer not living in Los Angeles will not have the opportunity for that job. Agents will often push local performers more so then those that live out of state.

A performer living in Los Angeles will usually be booked more since he/she would be more readily available to be booked. Also, living in Los Angeles will allow that performer to meet and develop relationships with more producers/directors/talent in the industry. The more people a performer knows the more opportunities he/she usually has to work. Many new performers think that once they get an agent their work is done. From talent I have talked to over the years it seems as though they believe that their agent is going to be “pounding the pavement” looking for work for them. That is not usually how it happens.

Directors/Producers usually decide on who they may want for a particular movie or scene based on physical attributes ie., hair color, race, breast size or willingness to perform a particular sex act ect. That director/producer will go to the various agent’s websites looking for performers that fit that requirement. When the director/producer finds such talent he/she will starting making phone calls to the agent to inquire into the availability of a particular performer. The job will usually go to a local performer since the producer has less worry about a local performer showing up on the date of the shoot.

An agent does not and cannot sit on the phone calling every production company with potential work for their clients. Some agents do send out email blasts and some even still do what are called “go-sees.” Other than that performers should not expect much more from their agents in the way of promotion. That is something talent has to do for themselves either in person who using social media such as Facebook and Twitter. Many performers are also now hiring a publicist to also promote them within the industry. This is something that I highly recommend. A good publicist will be able to secure appearances and interviews that may lead to more work.

Obviously, living in Los Angeles and meeting the directors/producers will increase a performer’s circle of friends and increase their potential chances for work. However, living in Los Angeles does not guaranty a performer more work, just the opportunity to meet those people that might offer them more work. Moving to Los Angeles is a decision that has to be considered carefully. The increase in living expenses might off set the amount of income earned through any additional work that the performer receives. As a general rule though it is my experience that performers living in Los Angeles do get booked more often then those that are not.

What Can an Agent Legally Do ?

On January 24, 2009 an article I wrote titled “Balancing Talent Agents, Performers and Producers” was published on XBiz.com and in their XBiz World Magazine (Please see: http://www.xbiz.com/articles/104087/fattorosi ). Even though this article is over three years old many of the things I wrote about remain true. Below are some excerpts from that article. I would suggest that anyone reading this article also read my original article linked to above.

Kill Fees: Are They Allowed ?

Producers can charged performers kill fees in case the performer does not perform as required by the producer. Kill fees are a legally confusing situation. If a performer flakes on a shoot, the producer will suffer damages. A kill fee is a contract term between the producer and the performer, not between the agent and the performer.

Kill fees cannot be used by an agent to punish a performer for not performing the scene. Also, a kill fee cannot be charged to a performer unless they understood before accepting the job offer that a kill fee is part of the contract for taking the job. A performer can instruct their agent not to book them for any producers that require kill fees. Also, a performer should request all information pertaining to kill fees prior to accepting any scene and that information should be in writing.

If an agent attempts to charge a performer a kill fee without having the performer accept the kill fee as a term of that employment, the agent would be violating their duty to the performer and that performer could file a Petition to Determine Controversy to have any charged kill fees refunded as well as possibly challenging the underlying contract with the agent. Thus, agents charge a kill fee at their own peril.

Cashing a Performer’s Check ?

Some agents also request that performers sign an agreement called a “Power of Attorney” so that the agent can cash and deposit into their own bank account the money paid to a performer. This is done for two reasons. The first is that the agent wants to get paid his/her agency’s fees. The second is that many producers are now refusing to pay talent directly and would rather pay the agent. I assume that production companies believe this provides them some sort of insulation against liability to the performer. This is simply not true. None the less, performers are routinely having their checks sent to their agent and then they are paid by the agent.

If you give your agent the power to cash and deposit your checks that is an individual decision. Some performers would rather have the agent take care of paying themselves. Others rather control their own finances and pay the agent later. If you do sign a “Power of Attorney” realize that you can revoke the it at any time in the case of abuse by the agent. However that must also be done in writing. I would suggest that any performer that wants to revoke this to do so in an email to their agent so if necessary the performer will have evidence of it later. If the agent continues to cash their check without written authorization they will be violating their talent agency agreement with the performer as well as possibly committing the crime of forgery.

What if an Agent Violates the Contract ?

If a performer feels as though an agent has violated the talent agency agreement they do have legal recourse. However, it is limited. A performer cannot file a lawsuit against an agent. The only legal claim that a performer can make against an agent is to file a Petition to Determine Controversy with the California Department Labor Standards and Enforcement. That department has exclusive jurisdiction to hear and decide all cases between talent and agents. On occasion, the DLSE does publish significant decisions that relate to cases between talent agents and performers. (Please see: http://www.dir.ca.gov/dlse/DLSE-TACs.htm )

A performer can file the Petition themselves, however it is better to retain a lawyer to handle any claim against a talent agent. However, be aware the process of filing the Petition to the final decision of the DLSE may be in excess of one year. The state of California’s courts and other departments are underfunded due to budget cut backs and cases now are taking much longer then usual to be resolved. It is often better for the performer to negotiate a resolution of any issue with their agent if possible.

Conclusion

Overall, it should be noted that an agent works for the performer and should be conducting business in a way that is in the best interest of his client. Often this is forgotten and at times it seems like the talent is working for the agent. Performers must remember that an agent also represents dozens of other performers with a limited staff and cannot always provide the personalized service that they wish they were receiving.

Performers must take responsibility themselves for finding work as well as promoting themselves. Hiring a publicist, using social media and attending industry functions are all ways to market their services. As the industry continues to shrink and less work is available the scenes that are remaining will go to those that work the hardest and smartest to get them.

October 3, 2012 0

Porn 101: Choosing an Agent – Part 1

Once you have made the choice to get into the adult industry the next step is making the decision as to whether you need an agent and who that agent will be. Who you choose as your agent is probably one of the most important decisions you will make as performer. Your agent will shape your career and be able to use their mainstream and industry connections to help you further your career. Your agent will be the person within the industry that you have the most contact with at first. Therefore, its important that you choose your agent carefully and research who you may be hiring to represent you. Talk to other performers about their agent(s). Twitter makes it quite easy to approach and ask other performers in the industry what they like or do not like about their agent(s). And make sure you get more then one opinion.

After choosing an agent you will have to decide whether you will relocate to Los Angeles or will you simply visit Los Angeles and work while you are there. Living in Los Angeles or traveling there will make a difference in not only how much work you can expect but also what your life will be like and how your career will proceed. From a career perspective, living in Los Angeles will probably result in more work since you can be booked at the last minute if another performer isn’t available, refuses the job offer or “no-shows.” However, living in Los Angeles is probably much more expensive than where you may live now. Also, living in Los Angeles will allow to you develop relationships, business and personal, with producers, directors and other performers that may help and assist with how your career proceeds.

I would recommend that anyone seeking an agent in Los Angeles chose only a licensed and bonded talent agent. In California, all agents are required by state law to be licensed and bonded. Also, any agent booking work for talent in California also has to be licensed and bonded in California. Even if your agent is located in New York and that agent is booking work for you in Los Angeles, they too must be licensed and bonded in California. You can check to see which agents are licensed and bonded by searching on this database -> http://www.dir.ca.gov/databases/dlselr/talag.html

Who’s Licensed & Bonded ?

According the Licensed Adult Talent Agency Trade Association ( Please see: http://www.latata.org ) the provide a list of agents that are currently licensed and bonded in adult entertainment in California.

The agents on LATATA.org is merely provided as a starting point for your own research. Choose the agent that will best serve your needs as an performer. If you are an agent and want to know how to become licensed and bonded in California please see http://www.dir.ca.gov/dlse/Talent_Agency_License.html )

What’s a Talent Agent Contract Look Like ?

As a licensed and bonded agent, your agent is only allowed to use a pre-approved Talent Agency Agreement. A California Labor Commissioner MUST pre-approve and stamp all talent agency contracts. A sample of the current Labor Commissioner approved contract can be found here -> Talent_Exclusive_Contract

If your agent hands you a contract that does not look the above contract, has additional pages or is not approved by the state of California Labor Commissioner that is not a valid talent-agent contract and you should not sign it. As a part of being licensed and bonded, every agent is required to have any changes or additions to the standard contract approved by the Labor Commissioner before providing it to talent to sign. Without such approval those pages or parts are not enforceable.

However, your agent may ask you to sign a model release and a 2257 document to place your photographs on their website. Those are acceptable to sign since your agent will need your agreement to start promoting your pictures on their website.

As a rule, your agent should provide you will copies of everything you have signed so make sure you receive copies for your records. If your agent does not provide a copy make sure you take a photograph of every page of the contract with your phone and keep those photos for your records in case you need them in the future.

How Much Do I Pay My Agent ?

If your agent is not licensed and bonded they cannot receive a fee for booking you work. Often people will claim to be managers and or publicist and attempt to book work for you. If they do, legally they cannot take a fee for doing so. Only licensed and bonded agents may collect a fee for booking work for you. The fees an agent may charge is not limited however the standard in the adult entertainment industry is between 10-20% of the total gross fee paid to the performer for each job secured. The amount of fees that the agent will charge you must be stated on the talent agency contract.

If you would like to research the laws pertaining to talent agents in the state of California please see -> http://www.agentassociation.com/frontdoor/agency_licensing_detail.cfm?id=572

In my next article on this subject I will discussed living in Los Angeles, what you can expect from your talent agent and what they are allowed and not allowed to do.

September 26, 2012 0

A Good Example of Why Talent Should Read Model Releases

By now most of the world has heard of the film “Innocence of Muslims.” The clips of this movie prompted widespread violence and anti-American demonstrations across much of the Muslim world.

Video clips of the movie were initially uploaded to YouTube in July 2012. Videos dubbed in the Arabic language were uploaded during early September 2012. On September 9, 2012, an excerpt of the YouTube video was broadcast on an Egyptian Islamist television station. Demonstrations and violent protests against the film broke out on September 11 in Egypt and Libya, and spread to other Arab and Muslim nations and some western countries. On September 11, 2012 an armed attack occurred on the U.S. diplomatic mission in Libya in which the U.S. Ambassador J. Christopher Stevens and three other Americans were killed ( Please see: http://en.wikipedia.org/wiki/Innocence_of_muslims )

Originally titled “Desert Warrior” and shot in English. The film was transformed into the “Innocence of Muslims” by dubbing over certain lines in the movie and adding references to the Prophet Muhammad. This was obviously not what the actors had intended by their participation in the production.

So what does this have to do with porn ?

On Thursday, September 20, 2012, a Los Angeles judge denied one of the movie’s stars lawsuit to remove the videos from YouTube (Please see: http://www.washingtonpost.com/national/on-faith/actress-in-anti-muslim-movie-sues-for-its-removal-online-sues-filmmaker-for-fraud/2012/09/19/694e5cd0-02b7-11e2-9132-f2750cd65f97_story.html ). Without going into the legal analysis of why the judge denied her request what is important is the fact that this occurred in the first place.

What allowed the producer to dub over the actors’ voices was the model release and the fact that there was probably a clause in that model release giving the producer the right to do whatever he/she wanted with the movie. Now, many of those involved with the production of movie or starred in the movie are receiving death threats.

However, we may never know what the model release said since the actress who filed the lawsuit, Cindy Lee Garcia, admitted she didn’t have a copy of the model release.

In the day of the smart phones with cameras there is absolutely no reason for a performer not to have a copy/photo of every page of every model release, contract and talent agency agreement they are asked to sign. Performers should simply take photographs of the documents and keep them in their phone or email the photographs to themselves, organize them and save them on their computer. You may never know when you will need such a copy as I am sure Cindy Lee Garcia now wishes she had.

My point is not that a performer’s starring role in “Babyz Got Huge Backsides” will be turned into a religious movie that sparks international controversy but rather a performer should not end up like Cindy Lee Garcia, in court fighting about a contract dispute without a copy of the contract he/she signed.

All producers should readily provide a copy of the model release and 2257 documentation for talent. If they do not it might be simply because there is no copy machine available on set. A simple photograph of the contract can achieve the same purpose. If someone does not want to provide a performer a copy of the contract, now that’s a different issue and perhaps that performer should question their motives for not giving them a copy. In those cases I would recommend that a performer not sign anything until they allowed the right to photograph all pages of the contract.

September 24, 2012 0

Returning to Work ? Somethings You Should Know…

September 3, 2012, Labor Day, ironically, is the day that the FSC/APHSS has determined to be the best day to return adult performers to a regular production schedule, a mere 10 days after receiving a prophylactic antibiotic shot to hopefully cure the syphilis outbreak in the industry. Now that the moratorium on production has been lifted, be safe and here’s some facts that you should know before you head off to set;

There are 9 performers in adult confirmed positive for syphilis as of today;
Syphilis may take up to 90 days to detect through testing with the average range being 21 days;
Once you test positive for syphilis you may always test positive for syphilis;
If you are receiving your test results through APHSS you may not know that you are working with another performer that previously tested positive for syphilis – the APHSS database only tells you whether someone is “cleared” to work;
There is a disagreement between APHSS and TTS as to the proper test to use to detect syphilis;
APHSS states that their required and mandatory re-test can detect syphilis at 14 days while TTS states two tests are necessary to detect it this quickly.
Only 300 performers opted to take the antibiotic shot;
Despite the moratorium on production, there were some production companies and agents that continued to book scenes;
Some performers continued to escort during the moratorium;
Condoms may not protect you from catching or spreading syphilis;
Treatment for syphilis may make birth control pills ineffective;
Often those with syphilis do not show any symptoms of the disease;
In the primary and secondary stages syphilis is very contagious;
If a performer’s off camera sex partner(s) were not treated it is possible to reinfect those that were treated;
An antibiotic shot is not a vaccine and a performer can be reinfected quite easily;
If you catch syphilis, receive treatment and then get reinfected it will require 1 shot a week for 3 weeks to cure it;
Having an open syphilis sore makes it 2 to 5 times more likely that you can transmit/contract HIV during sex.

If there are any facts I have let off this list please feel free to add a comment to this article and I will add them to the list.

September 3, 2012 0

Is There a Hole in APHSS ?

The syphilis outbreak in the adult industry has brought to the forefront a highly contested debate as to testing for sexually transmitted diseases. Currently there is a debate as to whether there should be one testing facility or multiple facilities. There is also a debate as to what the proper protocols should be for informing performers and their sex partners of a possible outbreak. There is yet another debate as to whether what exactly should a performer know about his/her costar on set in regards to their medical history.

Background…

The main players in this debate are the testing facilities under the umbrella known as the Adult Production Health & Safety Service (APHSS https://aphss.org/ ). APHSS is the brainchild of the Free Speech Coalition (FSC http://www.freespeechcoalition.com/ ) and several major content production studios that openly support the FSC, most notably Manwin, Evil Angel, Kink.com, Girlfriend Films, Gamma Entertainment and Vivid Entertainment. One of those APHSS testing facilities is Cutting Edge Testing, which is owned and operated by Dr. Miao, and is one of the main testing facilities in Los Angeles for the industry. (CET http://cuttingedgetesting.com/ ).

On the other side of the equation is Talent Testing Services (TTS http://www.talenttestingservice.com/ ), a testing laboratory not a medical clinic, which appears to be supported by LATATA ( http://latata.org/ ). The Licensed Adult Talent Agency Trade Association is comprised of several of the licensed and bonded adult talent agents within the United States. Further, TTS is not part of the APHSS system and it appears does not wish to be. TTS is not a medical facility it is a laboratory that performs testing for sexually transmitted diseases.

APHSS’s inception is rather recent, only occurring after Adult Industry Medical (AIM) closed and filed for bankruptcy within the last year. TTS has been in operation for several years.

As for adult performers, they seem to be split as to which testing facility they prefer. Some prefer CET and the APHSS system while others prefer TTS.

Medical History within the APHSS Database…

Without getting into extreme detail as to either service or all that either service offers, since that would require pages of analysis, I would like to confine my discussion to one potential problem with the APHSS database I have been made aware of by seasoned veteran performers.

Since I prefaced this article with the words “hotly debated” let me state this for my readers. I do not have a financial interest in either testing facility. I do not have a preference as to either testing facility. I am not a performer nor a producer and therefore do not have a “dog in this hunt” so to speak. I am neutral as to both facilities so please do not attack me believing this article is merely an attack on APHSS. It is not. It is merely meant to inform and educate based on a potential issue I see with the way medical history is handled in the APHSS system. My goal is that this issue can be resolved and the database improved for the health, safety and knowledge of the talent.

After a discussion on Twitter with Fabian Thylmann it became apparent to this writer that there is a potential hole in the APHSS database as to the past medical history of performers. I have come to this understanding after the conversation with Fabian Thylmann as well as personally attending the APHSS presentation in July conducted by the FSC and Dr. Maio. I will limit my discussion to just one issue. That issue is how past medical history is handled by APHSS.

From my understanding the performers in the APHSS database will be either “cleared” or “not cleared” to work under the APHSS database and call in system. Which means that only the most recent test results will be available to be reported and only in the way proscribed. Which, for legal purposes, is a good idea with the issue of medical privacy being important to so many. As a lawyer, I like the APHSS database. It leaves little room for violation of medical privacy.

However, from my discussions with some veteran performers it appears that there are a contingent of them that would like to know more about their on-screen partner’s medical history, including whether they have tested for syphilis in the past. While normally I would disagree with that position as for chlamydia and gonorrhea I do see that information as being important for syphilis. Syphilis is an infection that can be easily cured but may always result in some level of a positive finding on a sexual transmitted disease test result, depending on the test used. (Please see http://www2a.cdc.gov/stdtraining/self-study/syphilis/syphilis10.asp ). Therefore, I can certainly see a performer’s right to make an informed decision. While medically it may be impossible to transmit the disease once a performer as undergone treatment some performers feel as though that they would like to know that information prior to performing in a scene with previously positive performer. A balance between privacy and informed decisions must be made.

From what I was told by Fabian Thylmann of Manwin, a performer who has tested positive for syphilis will be cleared for work within the APHSS database once they have been examined and cleared by an APHSS physician. Therefore, while we do not know at this time who besides Mr. Marcus may have it, based on Fabian Thylmann’s statement it is possible that at some future point a performer that had syphilis and received treatment will be actively performing again. With this potential hole in the APHSS system anyone working with that performer would not even know about the past positive history for syphilis.

While this might not present much stress for some performers it may for others. I discussed this issue with a male performer that indicated that he did not believe that working with a performer who had previously tested positive for syphilis but is now cured posed much of a risk. However, he did indicate that information would be desirable in order to make an informed decision. Performers should be able to assess risk and balance such concerns themselves.

I had suggested to Fabian Thylmann of Manwin that the APHSS database be changed so that it would instead read “cleared for work” however with a notation. That notation in the database could be an indication that the other performer may have tested positive for syphilis within the last 30, 60, 90 or 180 days depending on long ago the past the positive test occurred. That may allow a performer to make a more informed decision as to who their screen partners will be.

This hole in the database may also become more important in the future if testing is going to expand past the basic HIV, chlamydia, gonorrhea and now syphilis panel. If the industry adds herpes, hepatitis and human papillomavirus to the regular testing panel how is the APHSS database set up to handle those types of results. Are all performers that test positive for herpes going to be “cleared to work” without a notation that they carry the virus ? As with syphilis is an APHSS doctor going to examine them for the presence of an outbreak before clearing the performer to work ? How often will this exam be necessary ?

Will there be a notation in the APHSS database for those performers that have had a hepatitis B vaccination ? Will a performer know if they are working with someone else who has been vaccinated ?

Since this database is being touted as the database for the entire industry, lets not forget the gay side of production as well. There are gay production companies that allow HIV positive performers to work with other HIV positive performers as well as HIV negative performers ( See http://www.insidesocal.com/outinthe562/2010/11/hiv-positive-gay-porn-actor-signs-exclusive-contract.html ). Some of those studios even match performers with different strains of HIV together. How would this particular situation be handled by the APHSS database and call in system ? Would an HIV positive performer working for a gay production studio “not be cleared for work” or would they. Would a notation be required on that performer’s database file ? Or is APHSS simply not going to allow gay performers and production companies into their database ? That cannot be possible since APHSS has under it’s umbrella of testing facilities a clinic located in San Francisco. There are also straight porn production companies such as Naughty America that are now also producing gay content ( See http://queermenow.net/blog/naughty-america-presents-3-new-gay-porn-sites/ )

Needless to say, the syphilis outbreak has caused numerous questions to be asked in regards to the current state of testing and performer health and safety as well as the mandatory use of condoms now required by state law and Los Angeles city ordinance. Without doubt this issue will continue to be debated, lines will be drawn and sides will be taken. Let us not forget those in the middle of the fire, the performers who risk their health every time they step on set to perform.

Knowledge is power. If you believe I am mistaken in the way medical history will be handled by the APHSS database I invite you to post a comment. Any inaccuracies will be corrected.

August 27, 2012 0

Syphilis and You – Part I

I usually try to remove my personal thoughts and prejudices from this blog and desire it to be more legal and factual in nature. However, in light of what is happening not only in the United States but also Europe in regards to syphilis I do not believe that I can. Too many of my friends, not just clients, are caught up in what could end up ruining their lives, businesses and careers.

I had a conversation two nights ago with a client and friend that perhaps I was too difficult on since I held a bright-line approach with him as to when he should return to performing as well as producing. It is always much easier to play quarterback from the sidelines then it is from the actual game. And I am not IN this actual game. I do not sacrifice my body on camera nor do I have to worry about my hired talent on set contracting syphilis or any STD for that matter. I am not a producer nor talent.

He was gracious in explaining the everyday situations he finds himself in a much diminished industry trying to do what he feels is the “right thing” while being able to pay his bills. I certainly cannot fault him for such. It is a difficult decision that producers and talent have to make as to when to resume shooting.

It appeared, at least to most, that the most turbulent part of the storm had blown over when the FSC ( http://www.freespeechcoalition.com ) had made the announcement that Manwin and several other producers would provide a prophylactic antibiotic shot to talent for free so they could return to work 10 days after receiving the injection. Hundreds of performers lined up to get the miracle drug called penicillin. Then two days later Rocco Siffredi dropped a bombshell interview on XBiz Magazine, wherein, he claimed that 89-100 performers through-out Europe now have syphilis and the number may be rising. ( http://www.xbiz.com/news/153188 ) He also went on to state that Europe is now under a 60 day moratorium and production has ceased. Cases have been reported in Budapest, Prague and St. Petersburg. St. Petersburg may have had the earliest reported cases starting in as early as May 2012. (Note: This information was provided by Fabian Thylmann of Manwin) His comments left most of the US industry wondering how and why this happened.

It appears for all intents and purposes that the European performers were also receiving antibiotics as well. Therefore, how could 16 cases explode into 100 cases in a short 2-3 weeks. I do not know if anyone has the answer to that particular question nor do we in the US know that there is a confirmed count of 100 cases in Europe. I have no reason to doubt Siffredi, but his comments cannot be viewed in a vacuum. He might be incorrect. However, he seemed to blame performers that also escort as a reason for the increase in cases, at least outside the industry. He also discussed that fact that some talent in Europe also altered their tests to allow them to continue to work as Mr. Marcus did here in Los Angeles. However, he did not seem to have an answer as to how the number of cases had risen in Europe so dramatically in a few short weeks.

In the United States, an accurate count of the number of positive cases remains a mystery. It could be 2, 5 or even as high as 9 as reported by the Los Angeles County Health Department (LA County Health receives all reports of STDs within the county as required by law). Which of those cases are from within the industry and how many are outside of it. The simple answer is that no one knows for certain at this point.

Unfortunately, many performers within the Los Angeles industry continue to work despite the moratorium. I even heard that one male talent has said that the syphilis outbreak has been a “goldmine” for him since he was one of the few male performers still willing to work. I have also heard reports of agents continuing to book talent for scenes and even charging them “kill fees” for refusing to perform. Which obviously means there are at least a handful of companies that are still producing. As my friend and client indicated, people have to eat and pay bills. Many performers and producers do not have a cash reserve that will allow them to survive even a 10 day stoppage no less the 60 days that is now affecting our European counterparts. Further, producers for some large internet websites and tubesites do not have enough content in reserve to allow them to stop producing. Websites must be continually updated for the members so they continue to rebill.

This has left me wondering whether the US, and more specifically the Los Angeles, market is about to experience a dramatic rise in the number of cases or has this outbreak been contained by the prophylactic antibiotic shot provided to some performers for free. Some performers have opted not to take the shot and would rather wait 90 days for three clean syphilis tests to continue working. Either way, we are, without question, in a wait and see period. The latency for a positive finding on a syphilis test can indeed be as long as 90 days though it usually shows up on a test within 20-30 days. I am unaware of any tests that can show whether a performer is positive or negative for syphilis in as little as 10 days. (Note: Fabian Thylmann of Manwin provided that there is no test that can accurately detect syphilis at the 10 day mark however it is his opinion that if treated and caught early a performer should be allowed to return to work.)

So where does that leave the US talent pool as well as the producers ? At this point, in my opinion, lost and confused. I have received numerous calls in regards to when production should resume. No one seems to have a clear answer to this question since the answer would depend on your ability to handle risk. Obviously, the sooner you return to production the higher risk you might have of contracting and spreading syphilis. The longer you wait the more the risk diminishes – or does it ? Perhaps not, if some talent and producers continued to work during the moratorium. What it really comes down to is how many first generation cases did we start with and how many second generation cases were there, as well as how many of those cases were cured with the antibiotic shot. I do not think we will ever know since prior to giving the antibiotic shot, the FSC and APHSS did not specifically test the performer base for syphilis, they merely injected them. However numerous performers did in fact test prior to receiving the injection. Therefore, the industry may never know how exactly far this disease had spread. We, like the Europeans may have had 75+ cases. We may have none now thanks to the shot. We may still have several cases floating around the industry. We do not know. However, we will soon find out though.

The real question is what else can a performer and or producer do in the interim to pay the bills and survive a 10 day or longer shut down of production. That will be discussed in my next installment – Part II.

August 26, 2012 0

The Syphilis Outbreak in Porn & Its Legal Ramifications

On August 16, 2012 XBiz reported that, according to talent agents Shy Love of ATMLA and Derek Hay of LA Direct Models, a male performer knowingly altered his paper test and worked in the industry while contagious with syphilis. According to the story on XBiz “the performer admitted to Hay he was feeling ill in mid-July and underwent tests with his personal physician, at which time the syphilis was originally diagnosed. He was also given medication at the time, Hay said. Then he tested on July 21, approximately a week later, at Talent Testing Services, which also identified the performer as positive for syphilis…” The story went on to state “the discrepancy on the performer’s test was discovered on Aug. 7, when the producer who received the scene paperwork from the director “was doing his normal due diligence and noticed an irregularity in this performer’s test paper in comparison to what he was used to receiving from TTS…Hay said the portion of the test that notes “reactive or not reactive” for syphilis had been obscured.”

Obviously, this revelation caused numerous people in the industry to be upset and stressed. It appears from the reported story that this particular male talent knowingly altered his test and worked in the industry with full knowledge that he was contagious. I was asked several times on Twitter whether the actions by this particular male talent were criminal in nature.

The answer is yes. In California, if someone knowingly exposes another to a sexually transmitted disease they have in fact committed a crime. For knowingly exposing a scene partner, that contagious performer would be guilty of a misdemeanor which is punishable by imprisonment up to 6 months and a $1000.00 fine. I also believe that true is for each exposure. Therefore, as stated in the article by Shy Love, this performer worked on three different occasions with an altered test and thus that performer may be charged with three separate counts and possibly face more than a year in jail.

The relevant code sections are listed below;

California Health & Safety Code

120290. Except as provided in Section 120291 or in the case of the removal of an afflicted person in a manner the least dangerous to the public health, any person afflicted with any contagious, infectious,or communicable disease who willfully exposes himself or herself to another person, and any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor.

120600. Any person who refuses to give any information to make any report, to comply with any proper control measure or examination, or to perform any other duty or act required by this chapter, or who violates any provision of this chapter or any rule or regulation of the state board issued pursuant to this chapter, or who exposes any person to or infects any person with any venereal disease; or any person infected with a venereal disease in an infectious state who knows of the condition and who marries or has sexual intercourse, is guilty of a misdemeanor.

Obviously anyone exposed by this male talent could press criminal charges against him.

However, there are other rights and remedies that an exposed and infected performer has. The main one being a claim for workers’ compensation benefits. If a performer is exposed on set to a virus or contagion that will require extended medical treatment and a loss of income for a prolonged period of time it is unavoidable that the performer will suffer because of it. Workers’ compensation insurance can provide benefits to that performer in the form of medical treatment and temporary disability payments for the loss of income until the performer can return to their usual and customary job activities, performing. While no one will “get rich” from a workers’ compensation claim it is a system of benefits to help an infected performer in case of an injury. Syphilis would in fact be considered a work related injury and covered by the appropriate Labor Code sections. Further, a workers’ compensation claim is not like a lawsuit where a performer would have to prove their claim like in civil court. In case of something like a syphilis infection all that would be necessary is for the infected performer to prove they worked with the original carrier of the infection and it will be presumed to be a work related injury. The burden would then shift to the production company to prove that the performer actually became infected somewhere else. It is almost impossible for a production company to meet that burden. Also in the workers’ compensation system “a tie” is usually decided in favor of the infected performer.

While this situation is extremely problematic for the industry and for the performers exposed there are remedies for them. However, this is a situation that needs to be learned from and never repeated. The health and safety of performers should be the first and foremost concern of other performers and the production companies.

August 17, 2012 0

Paying Talent on Time: What Talent, Producers and Agents Need to Know

One of the most confusing situations that confronts both talent and producers is when should talent be paid. Some producers are almost religious when it comes to “same day pay” while others place talent on payroll and may not pay for up to a month. Often, talent will contact my office with complaints of either not being paid timely and in rare occasions, when producer’s checks actually do not clear and “bounce.” This article will cover what talent, producers and agents have to be aware of in regards to when is payment due to talent. In California, there are serious penalties for failure to timely pay talent for work performed

Special attention must be paid to the California Labor Code when discussing work related payments. According to the Labor Code section 207, employers must establish regular paydays and post notices of when such days are. For example, if your production company has office staff and or production staff that are paid on the 15th and 30th of each month, these days will be presumed to be your regular pay schedule. Even though performers may not be part of your usual payroll schedule the 15th and 30th may be deemed to be your required days for paying talent, if you do not pay talent the same day and instead pay talent through a payroll service. For example, if talent works for your production company on August 28th and your usual pay date is the 30th you may be required to pay talent on the same day as you pay the rest of your employees.

If you are a small producer and do not have a regular payroll schedule to pay other employees then you must look to California Labor Code section 204 as to when talent must be paid. For wages earned between the 1st and the 15th of the month you must pay talent for their work no later then the 26th day of the same month. If the wages are earned between the 16th and the 31st of the month, wages must be paid no later then 10th day of the following month. For instance if talent works for you on August 8, 2012 that talent must be paid no later then August 26, 2012. If the shoot occurred on August 30, 2012 then talent must be paid no later then September 10, 2012. However, “payroll” does not mean that a producer get two weeks to pay talent. It actually means that a producer utilizes a real payroll service and other employees are being paid on the same date and that the producer is paying payroll taxes on the talent’s earnings. Simply stated, a producer cannot pay talent two weeks late and simply write a check for the full amount of the scene without deducting and paying taxes.

This information may come as a surprise to some of those that are reading this article. What will be more shocking is what are the penalties imposed by not following these payment schedules or in case your check bounces even if you pay the same day.

Failure to timely pay wages is not a situation you want to find yourself in as a producer. The penalty for such is that the talent’s right to payment at their rate continues for up to 30 days. Allow me to rephrase that, a producer will be required to pay the talent everyday for up 30 days as a penalty. For example, if talent performed for you on August 30, 2012, wages would have to be paid by September 10, 2012. If you did not pay talent by that date, that talent would be entitled to a penalty of whatever their rate was for the shoot (for example $1000) for each day payment was made late. Under Labor Code section 203 and 203.1 (in case of a check that does not clear) if you did not pay talent until September 30th you can be hit with a $20,000.00 penalty by the California Labor Commissioner for paying 20 days late. The penalty is $1000.00 per day (or whatever the talent rate is for that shoot) for up to and including the 30th day. Obviously, this is an extreme and severe penalty but one is that is often imposed and maintained by the Labor Commissioner. Even if you agree to settle with talent for less then the full penalty you will have to agree to send all payments to the Labor Commissioner’s Office who in turn will send it to the performer. Meaning there is no getting out of the this situation.

Further, it should be noted that nothing in the Labor Code has anything to do with whether a model release was signed nor can the Labor Code be contravened through a written agreement with talent. Simply put a producer cannot add a clause to a model release agreement indicating that they have up to six months to pay wages. Lastly, in addition to what is awarded to talent by the Labor Commissioner for unpaid wages, penalties and interest, the attorney representing talent will also be entitled to attorney’s fees.

Special attention should be paid by agents to this situation as well. It is often practice and custom within the adult industry for the agents to ask producers to pay them directly and then in turn the agent pays the talent. By doing this, the agent may unwittingly make themselves the employer in this matter and be subject to the same penalties for failure to pay talent timely. In California, there is a general legal conclusion that employment follows wages, which means if you pay the wages you may deemed to be the employer. Or in the alternative, if you are a producer and you pay the agent instead of the talent directly you may be in violation of the Labor Code if the Labor Commissioner determines you should have paid talent directly and did not and the agent failed to pay talent timely.

In conclusion, the payment of wages to talent is still a relatively untested area of law in the adult industry that is rife with potential pitfalls for the unwary and uninformed producer and agent. It is strongly recommended that you review your wage payment policies with a lawyer that is well versed in employment law and the Labor Code.

UPDATE:

I wanted to also add in some relevant case law and a brief synopsis of such so anyone reading this can realize how it applies directly to the adult industry.

In Smith v. L’Oreal USA, Inc. (2006) 39 Cal. 4th 77, the California Supreme Court ruled directly on this issue. Ms. Amanda Smith worked for L’Oreal as a “hair model” at an upcoming L’Oreal hair show. L’Oreal agreed to pay her $500 for one day’s work at the show. Ms. Smith worked at the show, where her hair was colored and styled, and she then walked a runway a few times. Ms. Smith stayed at the show until she was told she could leave. L’Oreal did not immediately pay her the $ 500 in wages it owed her, but waited over two months to do so.

Ms. Smith filed a law suit against L’Oreal, alleging that she worked for one day, that her employment was terminated at the end of the day, that L’Oreal violated its obligation to pay earned wages promptly upon separation, and that it should pay her “waiting time” penalties under Labor Code Section 203.

The California Supreme Court agreed. The Court held that the discharge element of Section 201 can be satisfied either when an employee is involuntarily terminated from an ongoing employment relationship or when an employee is released after completing the specific job assignment or time duration for which the employee was hired. An employee who works on a job assignment of short duration is not excluded from the protective scope of Sections 201 and 203.

If a production company does not pay your talent at the end of the shoot this could result in huge penalties being assessed against that employer. This would also apply to any temporary employees, including but not limited to directors, camera people, lighting or production assistants.

August 13, 2012 0

Balancing Talent Agents, Performers and Producers

http://www.xbiz.com/articles/104087/fattorosi

There has been much debate recently as to the role talent agents play in the adult entertainment industry.

In November 2008, seven California-based licensed and bonded talent agencies came together and formed the Adult Entertainment Agents Trade Association. The mere fact that the “legal” talent agents have joined to form a trade association has caused a stir amongst numerous producers and performers alike. There has been much discussion as to talent rates and fear that the association will result in price fixing. This article will address the legal ramifications of what role an agent has and what this means to producers and performers.

First off, one must define what a talent agent is. Many in the industry try to blur the line between agents and managers. An agent is a person that secures employment for a performer. A manager is just that — he or she manages a performer’s career — but cannot legally secure employment for their client.

In order for an agent to be “legal” that agent must be licensed and bonded by the state of California. Labor Code section 1700 et al., is the pertinent law in regards to the licensing of talent agents. If an agent is not licensed and bonded, he or she is operating illegally and cannot collect fees from the performers they represent. Moreover, any performer that has paid fees to an unlicensed agent can file a claim with the Division of Labor Standards and Enforcement and receive a complete refund on fees paid to that agent.

A licensed and bonded agent can collect up to a 20 percent fee of the work secured by their agent. An agent cannot collect more than 20 percent as the California Labor Code legally caps this.

What about talent rates? Talent should determine their own rates. Rates cannot be set across the industry by the agents. Doing so can appear to be collusion and price fixing. Rate fixing can result in legal action by producers and can violate antitrust as well as unfair competition laws. Free market conditions should also help determine talent rates.

TALENT AGENCY CONTRACTS: WHAT DO THEY MEAN?
Often performers want to change agents and try to further their careers. What can a performer do in case they want to break their contract with their agent? The best answer is to have a lawyer review the contract before signing it so that the performer can understand what the contract means. All licensed and bonded agents in California use the same contract. Also, all agent contracts in California must be approved by the Division of Labor Standards and Enforcement (DLSE). If an agent is not using an approved contract, that contract cannot be enforced and can be voided by the performer.

Also, if an agent alters the DLSE-approved contract in any way and does not have their new version approved by the DLSE, again it usually can be legally challenged by the performer and determined to be unenforceable. If a performer wants to challenge the legal sufficiency of an agent’s contract, that performer would have to file a Petition to Determine Controversy with the Labor Commissioner’s Office. If declared void, not only will that performer be able to get out of their contract, they will also be awarded a refund of any fees paid to the agent for the year prior to the filing of the petition.

CAN A PERFORMER HAVE TWO AGENTS?
There is an exclusivity clause in the standard contract that states that the performer must remain exclusive to that agent for up to one year if that agent is indeed booking the performer work. If an agent books a performer at least once every four months, then that performer has to be exclusive to that agent. If the agent is not securing work for their client, then a performer can get out of their contract and switch agencies. Obviously, one scene every four months is certainly not enough work to earn a living on. What to do then?

There is no case law on point, but there is nothing that indicates that a performer cannot secure her own employment. California is a right to work state and case law in regards to non-compete clauses state that restrictions on employment are usually not enforceable in California courts. Therefore, it would make sense that if a performer wants, they could seek out their own scenes. However, that performer may still owe a fee to the agent that is representing with him or her.

However, what if a producer tries to hire a performer directly without the first contact being initiated by the performer? In that case the performer should honor their contract with their agent and request that producer book the scene through her agent. If a producer tries to “book around an agent” and knowingly does so, that can be actionable by the agent. It is something referred to as tortuous interference with a business relation. That can result in a civil lawsuit being filed by the agent against the producer.

In short, if an agent is not finding a performer enough work, he or she can find it on his or her own. However, it is recommended that the performer pay the agent no matter how they find the work. If a producer contacts a performer in order to book a scene directly, that performer should refer the producer to her agent to book the scene.

Producers are regularly charging performers kill fees in case the performer does not perform as required by the producer. Kill fees are a legally confusing situation. If a performer flakes on a shoot, the producer will suffer damages. A kill fee is a contract term between the producer and the performer, not between the agent and the performer.

In conclusion, it should be noted that an agent works for the performer and should be conducting business in a way that is in the best interest of his client. Often this is forgotten and at times it seems like the talent is working for the agent. Producers need to realize that the contracts used by talent agents are valid and do carry weight in court since they are approved by the state of California.

Lastly, talent, agents and producers should work together in determining how content will be produced and for what rate. No one’s interests are served if there is an ongoing dispute regarding the creation of content in the industry.

July 30, 2012 0