Setting the record straight on Talent Agencies Act litigation

Edwin McPherson's article titled "TAA Violation for Record Producer Deal" (Aug. 18) discussed a recent decision by the labor commissioner impacting managers in the record business. We are the trial attorney and expert witness for the respondents in the pending LMFAO case mentioned in that article. However, McPherson omitted to mention that he is the attorney for the petitioners in the LMFAO case.

This discussion is not about LMFAO, but about the recent ruling in Lindsey v. Marie, TAC 28811 (Aug. 11, 2014), the apparent impetus for McPherson's piece. Lindsey holds that only a licensed talent agent may negotiate an agreement between a music producer and anyone other than a "record company." McPherson downplays the case's significance, but many producer agreements nowadays are between producers and recording artists and not directly with "record companies." So, Lindsey threatens to leave music producers with no one to represent them.

Licensed talent agents do not procure recording contracts for producers. Usually, managers and lawyers do. Few of them are licensed talent agents. Consequently, something has to give in the current music industry regime: Either (1) lawyers and managers wanting to broker producer contracts with other than "record companies" would need to comply with TAA licensing requirements; (2) talent agencies that don't currently handle such deals would need to start doing so; or (3) the Talent Agencies Act would need to be amended to more specifically define "recording contracts."

Interestingly, McPherson has been one of the voices calling not only for an amendment but for total repeal of the TAA. He has stated: "I have been writing and saying for years that the [Talent Agencies] Act has long outlived its usefulness, and that the manner in which the Act has been enforced has no rational relationship to how the entertainment industry works today."

But now McPherson argues it the other way: fighting for the right of producers to burn up their management contracts using the TAA as a torch.

Nothing unusual about that, lawyers frequently flip flop, depending on whom they are currently representing or courting as clients.

But in his editorial, McPherson gets it wrong about Lindsey's impact and fogs the rear view mirror in characterizing related cases in the recent past. In that regard, he makes a veiled reference to Owen Sloane, co-author of this letter, suggesting he has stood alone in taking a broad view of the TAA's "recording contract" exemption. He cites Lord Alge v. Moir/Marie, TAC 45-05 (2008), which he says "ultimately settled," without mentioning that Sloane's expert opinion - that the term "recording contracts" in the TAA encompasses virtually any kind of creative services involving the recording process - was vindicated in twin victories: before the labor commissioner and then in Los Angeles County Superior Court (in a de novo appeal) before it "ultimately settled." As the Lindsey ruling would upset this status quo if adopted on appeal, the music industry watches closely.