By Oakley H.B. No. 2791
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 Relating to the regulation of certain talent agencies.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Article 5221a-9, Sections 1 through 7, 12 and 16,
1-5 Revised Civil Statutes, are amended as follows:
1-6 Sec. 1. DEFINITIONS
1-7 (1) "Artist" means
1-8 (A) an actor who performs or seeks to perform in a
1-9 motion picture, video tape, stage, theatrical, radio or television
1-10 broadcast, or other form of production, whether live, filmed or
1-11 pre-recorded in any way;
1-12 (B) a model who renders service by posing for
1-13 photography for commercial purposes, by wearing apparel or
1-14 accessories to commercially display such apparel or accessories, by
1-15 demonstrating products for advertising purposes, or by working as a
1-16 host for conventions or other special events;
1-17 (C) or any individual, whether working as an extra,
1-18 general factotum, or performing in the individual's area of
1-19 expertise, who renders analogous professional services under the
1-20 definitions of "actor" or "model" as outlined in this section.
1-21 <(A) an actor who performs in a motion picture,
1-22 theatrical, radio, television, or other entertainment production,>
1-23 <(B) a musician or musical director,>
2-1 <(C) a director of a motion picture, theatrical, radio,
2-2 television, or other entertainment production,>
2-3 <(D) a writer,>
2-4 <(E) a cinematographer,>
2-5 <(F) a composer, lyricist, or arranger of musical
2-6 composition,>
2-7 <(G) a model, or>
2-8 <(H) any other individual who renders analogous
2-9 professional services in a motion picture, theatrical, radio,
2-10 television, or other entertainment production.>
2-11 (2) "Commissioner" means the commissioner of the Texas Department
2-12 of Licensing and Regulation.
2-13 (3) "Department" means the Texas Department of Licensing and
2-14 Regulation.
2-15 <(6) "Model" means an individual who renders professional services
2-16 as a fashion model, as a model for commercial photography or
2-17 demonstration of products for advertising purposes, or as a host
2-18 for a convention or other special events.>
2-19 (4)<(7)> "Person" means an individual, personal manager,
2-20 corporation, organization, business trust, estate, trust,
2-21 partnership, association, or any other private legal entity.
2-22 (5)<(8)> "Talent Agency" means a person that engages in the business
2-23 of obtaining or attempting to obtain employment for, negotiates
2-24 financially or contractually for, or acts as a fiduciary for
2-25 artists, or otherwise represents an artist in the pursuit of
3-1 employment. The term includes <an> any entity that directly or
3-2 indirectly counsels or directs an artist in the development of the
3-3 artist's professional career. The term does not include any entity
3-4 that is in business only to provide instruction.
3-5 (6) "Talent" means an actor, model, or anyone who comes under the
3-6 definition of "Artist".
3-7 Sec. 2. REGISTRATION REQUIREMENT; PROHIBITED ACTS
3-8 (a) A person may not operate as a talent agency in
3-9 this state without a certificate of registration issued by the
3-10 department under this Act for each location at which the person
3-11 operates a talent agency. A person operating as a business under
3-12 the US Internal Revenue Code 501c3 is exempt from this registration
3-13 requirement.
3-14 (b) In this section, "fee" includes:
3-15 (1) "commission fee", which includes any money
3-16 or other valuable consideration paid or promised to be paid by an
3-17 artist to a talent agency, an amount which is calculated as a
3-18 percentage of the salary earned by the artist for services rendered
3-19 and which is included in the contract between the artist and the
3-20 talent agency;
3-21 (2) "service fee", which includes any money or
3-22 other valuable consideration paid or promised to be paid by the
3-23 employer of an artist directly to a talent agency to cover the
3-24 talent agency's cost of doing business, an amount which is
3-25 negotiated separately from the artist's salary and is not included
4-1 in the calculation of the commission fee paid by the artist to the
4-2 talent agency;
4-3 (3) "expense fee", which is money paid to an
4-4 artist by an employer as a reimbursement of out-of-pocket expenses
4-5 by the artist, including but not limited to transportation,
4-6 lodging, wardrobe or food expenses, and shall not be included in
4-7 the artist's salary in the calculation of the commission fee paid
4-8 by the artist to the talent agency;
4-9 (4) "residual fee", which includes any
4-10 additional moneys paid to an artist by an employer for services
4-11 rendered in addition to a base salary figure; such fees include but
4-12 are not limited to foreign sales fees, holding fees, usage fees,
4-13 marketing fees, usage reinstatement fees, extra market fees, of
4-14 syndication fees, or
4-15 (5) any other money of valuable consideration
4-16 charged by the talent agency to either an employer of artists or to
4-17 the artist.
4-18 <(b)>(c) A talent agency may not charge<, as a condition
4-19 of registering any applicant or representing any artist, a
4-20 registration or advance fee and may not require the applicant or
4-21 artist to subscribe to, use, or use the services of any specific
4-22 publication, video of audio tapes, post card service, advertisement
4-23 service, resume service, photographer, or acting or modeling school
4-24 or workshop.> any artist they represent, or any individual seeking
4-25 to be represented as a talent, any fee whatsoever except commission
5-1 fees due on work performed by the artist under conditions of the
5-2 contract between the artist and the talent agency. This
5-3 prohibition of fees includes, but is not limited to, any
5-4 registration or advance fee, consultation fees, or fees for
5-5 advising artists and/or prospective artists of the requirements
5-6 necessary to procure employment or where to go to fulfill such
5-7 requirements.
5-8 <(c)>(d) A talent agency may not split or share fees
5-9 with a person who is not registered, but require to be registered,
5-10 under this Act.
5-11 <(d) In this section, "fee" includes.>
5-12 <(1) any money or other valuable consideration paid or
5-13 promised to be paid for services rendered by a person operating as
5-14 a talent agency,>
5-15 <(2) any money received by a talent agency in excess of
5-16 the amount paid by the agency for transportation, transfer of
5-17 baggage, or bond and lodging for any application for employment as
5-18 an artist; or>
5-19 <(3) the difference between the amount received by a
5-20 talent agency that furnishes an artist for an entertainment
5-21 production, exhibition or performance and the amount paid by the
5-22 talent agency to the artist.>
5-23 (e) a talent agency may not charge a commission fee on any
5-24 artist's money other than the artist's salary or residual fees, and
5-25 may not charge a commission fee for any expense fees received on
6-1 behalf of the artist from an employer.
6-2 (f) A talent agency, in an effort to cover the cost of doing
6-3 business, may not charge any service fee to the talent, even if the
6-4 talent agency is unsuccessful in negotiating such a fee with the
6-5 employer of the talent.
6-6 (g) In an effort to avoid a conflict of interest, a talent
6-7 agency shall not derive any profits at the expense of the talent it
6-8 represents, or talent seeking such representation, except for a
6-9 contracted and agreed upon commission fee. To avoid such a
6-10 conflict, a talent agency shall not require or singularly promote
6-11 to its talent or artist seeking representation any specific
6-12 marketing or promotional tool, such as a publication, video or
6-13 audio tape service, post card, headshot or resume, printing
6-14 services, photographer, or acting or modeling school workshop to
6-15 the exclusion of any other such legitimate services which are
6-16 provided within the artist's scope of availability.
6-17 (h) A talent agency must operate out of and maintain a
6-18 permanent, registered office that artist and employers may visit.
6-19 (i) A talent agency may not operate any other business
6-20 deriving its income principally from artists it represents, or
6-21 persons seeking representation, under the same roof as the talent
6-22 agency operates, may not by declaration or inference require the
6-23 use of such business by the artist it represents or any artist
6-24 seeking such representation, and may not advertise nor promote such
6-25 activity in the talent agency offices to the exclusion of
7-1 completion.
7-2 Sec. 3. POWERS OF THE DEPARTMENT
7-3 (a) The department shall:
7-4 (1) prescribe application forms for original and
7-5 renewal certificates of registration;
7-6 (2) set application and registration fees in amounts
7-7 that are reasonable and necessary to cover the costs of
7-8 administration of this Act; and
7-9 (3) adopt rules as necessary to implement this Act.
7-10 (b) The department may take other action as necessary to
7-11 enforce this Act.
7-12 Sec. 4. REGISTRATION STATEMENT
7-13 (a) A person must file a registration statement with the
7-14 department before operating as a talent agency this state. The
7-15 registration statement must contain:
7-16 (1) the name of the talent agency;
7-17 (2) the address of each location at which the
7-18 applicant for registration proposes to operate a talent agency;
7-19 (3) the name and address of any person who directly or
7-20 indirectly owns or controls ten percent or more of the outstanding
7-21 shares of stock in the talent agency;
7-22 (4) a description of the types of services offered;
7-23 and
7-24 (5) a full and complete disclosure of any litigation
7-25 relating to the operation of a talent agency brought against the
8-1 talent agency or any owner, officer or director that was completed
8-2 within three years before the date on which the statement is filed
8-3 or is pending as of the date of filing.
8-4 (b) The talent agency shall update the statement whenever a
8-5 material change occurs in the information on file. The talent
8-6 agency shall notify the department if a legal action relating to
8-7 the operation of the talent agency is brought against the talent
8-8 agency or an owner, officer, or director. The talent agency shall
8-9 notify the department in writing not later than the 10th date after
8-10 the date which the defendant talent agency receives notice of the
8-11 action.
8-12 (c) Each talent agency shall maintain a copy of the
8-13 registration statement in the records of the talent agency. The
8-14 talent agency shall allow an artist who uses the services of the
8-15 talent agency in inspect the registration statement on request.
8-16 Sec. 5. BOND
8-17 (a) Each application for registration as a talent agency
8-18 must be accompanied by a surety bond in the amount of $10,000,
8-19 payable to the state and conditioned on faithful compliance with
8-20 this Act. In lieu of bonding, the state may accept as a surety
8-21 $10,000 in cash from the applying agency to be placed in escrow by
8-22 the state. The registrant shall maintain the bond or cash surety
8-23 until the <expiration of two years after the> date on which the
8-24 registrant causes to operate as a talent agency in this state.
8-25 (b) This section does not limit the recovery of damages to
9-1 the amount of the surety bond.
9-2 Sec. 6. ADMINISTRATIVE FEE; RULES
9-3 (a) The department may charge each talent agency a
9-4 reasonable fee not to exceed $100 to cover the cost of filing a
9-5 registration statement or update of a registration statement.
9-6 (b) The department may adopt rules necessary to administer
9-7 the registration program created under this Act.
9-8 Sec. 7. ISSUANCE OF CERTIFICATE
9-9 The department shall issue a certificate of registration to a
9-10 talent agency that files a complete registration certificate, posts
9-11 the required bond, and pays the required fee.
9-12 Sec. 12. CONTRACT TERMS; CANCELLATION
9-13 (a) A talent agency must deliver, upon demand, a full<y> and
9-14 complete<d> copy of a contract to an artist who desires to purchase<s>
9-15 services from the talent agency before the contract is signed. The
9-16 contract, to be valid, must be in writing, must include the
9-17 commission fee charged by the talent agency, and must be signed by,
9-18 and copies provided to both the artist and a legal officer of the
9-19 talent agency. The contract constitutes the entire agreement
9-20 between the talent agency and the artist.
9-21 (b) An artist who purchases services from a talent agency
9-22 may cancel a contract before the fourth business day after the date
9-23 on which the contract was signed by notifying the talent agency in
9-24 writing of the cancellation. Written notification is considered
9-25 given if the notification is mailed by certified mail to the
10-1 principal office if the talent agency not later than midnight of
10-2 the third business day. The talent agency shall refund any money
10-3 except commissions received from that artist under the contract to
10-4 an artist exercising the right to cancel as outlined in this
10-5 section.
10-6 (c) The talent agency is entitled to all commissions earned
10-7 on behalf of an artist for services rendered by the talent agency
10-8 and received by the artist prior to the cancellation or expiration
10-9 of an artist's contract with the talent agency, including but not
10-10 limited to commission on any subsequent use fees or residual fees
10-11 which may accrue after such contract termination date.
10-12 <Sec. 16. EFFECTIVE DATE, TRANSITION>
10-13 <(a) this act takes effect September 1, 1989>
10-14 <(B) A talent agency is not required to register under this
10-15 Act before January 1, 1990.>
10-16 SECTION 2. This Act takes effect September 1, 1993.
10-17 SECTION 4. The importance of this legislation and the crowded
10-18 conditions of the calendars in both houses create an emergency and
10-19 an imperative public necessity that the constitutional rule
10-20 requiring bills be read on three several days in each house be
10-21 suspended, and this rule is hereby suspended.