Busted An Increase in Agent Failures this Year have Left Talent High and Dry

ADVERTISING . MARKETING . ENTERTAINMENTVOL 1. NO 19.

COMPLIANCE REVIEWQUARTERLY

A TALENTPAY PUBLICATION

In mid September, CRQ received a letter from actor, corporate trainer and academic, Gerry Sont. Gerry has been a professional actor for over forty years and his face would be familiar to many. In his letter which is reproduced here, Gerry asks what is behind the recent spate of talent representatives’ business failures, listing a sad roster of those agents who have gone broke, owing in some cases, thousands of dollars to their talent.

Gerry is careful to point out that this is not a case of agent bashing. On the contrary he told CRQ, he sympathises with the good agents in this highly competitive environment who have in many cases diligently represented their talent over the years.

by bRIAN GEACH

Continued on page 2

21st September, 2016.

Yesterday Jaz Daly Management went under owing $380,000. Encompass collapsed owing $577,000 in

May. Robyn Gardiner Management imploded owing $28 million. You can also throw into the mix Actors Extra

Agency $140,000, the Joan Gibson Agency and Bronwen Gault Management. This begs the question; is it

poor business management or an Industry downturn?

Regardless of the answer, hundreds of actors are owed hundreds of thousands of dollars. These are hard

earned dollars that are hard to come by. The tragedy is that there is more to come. So how do agents get

away with it?

The NSW Entertainment Act 2013 says that agents must use a trust account. This account is specifically set

up to hold funds that belong to the actor and are not to be used for running the business. However, the NSW

Industrial Relations Department (NSWIR) says that the trust account adopted by agents within the Industry is

not the same as what real estate agents would have or say, solicitors. Agents just set up a separate account.

This type of account has no external controls, checks or balances.

The NSWIR says that they can inspect and audit an Agents books but only if they have been instructed

to because a problem has to be brought to their attention. As you can imagine, by the time that happens

the horse has bolted. NSWIR also kindly explained that they are not responsible for the way agents have

interpreted the words ‘Trust Account’ from the Act. They advised me that the definition of ‘Trust Account’ is

not clear within the Act.

It is here that we move to Common Law where the words ‘Trust Account’ are clearly defined. So how do Agents

get away with just using normal accounts to hold their actors’ money? Well, according to my legal sources we

need a ‘test case’ to put agents on notice. Thus someone, who is owed $5,000 for instance, needs to mount

a case against an agent for failure in their ‘Fiduciary Duty’. This means, that they did not with all professional

care ‘look after the actors financial interests’.

And herein lies our conundrum. Agents know that no actor in their right mind will go after them. Not only

because the money and trouble would not be worth the outcome, but no actor would want to risk their

reputation and become known as a trouble maker.

So we rely on an agent’s integrity. However, as my mother always said, ‘Everyone is an orange; we all look

pretty good from the outside and it’s only when we get squeezed that we find out what juice we have inside’.

And so, as the Industry continues its downturn and over-heads and competition go up, agents will continue to

fold after dipping into their clients’ money.

You may be thinking, but agents are good people. They love the Industry and want to help actors. Why don’t

they just use trust accounts as per the Act? Well, business is business and it costs about $50 a month to run a

trust account at most banks plus there is an annual audit fee of between $1000 and $1500. Agents are already

under the pump trying to make a living on 10% (sometimes 15-20%) commission so if you can cut corners

somewhere then why not? Builders do it. Doesn’t everyone?

Zoe Angus (Director of Actors Equity) is well aware of this problem. Equity sends out regular e- bulletins and

advises actors to chase up their agents regarding late payments. Equity also sends emails to agents advising

them of their legal obligations. This is all well and good but clearly not enough. The question that hangs out

there for all of us is how many more agents need to collapse before something is done?

Well, you could individually pursue a ‘Liquidated Statement of Claim’ from your agent. Get some legal aid or

go through the website here https://onlineregistry.lawlink.nsw.gov.au/content Pay the $180 and then drop the

summons off yourself if you can find out where they live or where they hang out. Film yourself with your phone

as you hand the summons to them and you shall have your day in court. Too much hassle? Then click this link

to Change.org and sign the petition to get NSWIR to take more action in enforcing trust accounts.

https://www.change.org/p/nsw-industrial-relations-department-nswir-to-enforce-use-of-trust-accounts-by-

theatrical-agents?recruiter=597786293

IN THIS ISSUEFeatures

Busted 1Flying High 3The Increased Imposition of Agency Service Fees: 5Sydney, a Rising Star 6Report on Advertiser/Agency Relationships Shakes the Industry 7Spikes Asia Festival of Creativity 2016 8Casting a Wide Net 9

RegularsFrom the Editor 2The Local Eye 7The Global Eye 9Q&A 10

COmpLIANCE REvIEW 2 vol 1 No 19.

Its a sad state of affairs when agents or performer representatives fail, owing creditors and talent thousands of dollars in the process. In ‘Busted’, a letter from actor and academic, Gerry Sont has brought this sad state of affairs into focus. Gerry asks if these latest failures (well up on the number from last year), are a result of poor management or market forces. Its a good question and one which CRQ intends to pursue.

David mansley from mooney’s Insurance joins us again at CRQ with his article ‘Flying High’, which explores the changing compliance landscape in Tv and film productions particularly as it relates to the use of drone camera platforms.

In ‘The Increased Imposition of Agency Service Fees’ CRQ looks at the increase in the application of those fees across the board, seemingly not unrelated to the new and prescriptive regulations in NSW regarding performer agent commissions.

Of even greater concern is a report on fiscal transparency in the US advertising industry (Report on Advertiser/Agency Relationships Shakes the Industry), in particular relating to the less than transparent relationship between some advertising agencies and their media buying agents. Understandably, advertisers, both here and in the US, are looking at this issue with increasing scrutiny. I venture we’ve not heard the last of this by a long shot.

In a lighter vein in ‘Sydney, the Rising Star’ we note the increased use of Sydney as a film production hub and the wider economic benefits this is bringing to Australia.

A short report from the Spikes Asia Festival completes this issue along with our regular columns and articles. I commend this issue of CRQ to you all. Feel free to pass it on to friends, clients and colleagues. Enjoy.

Brian Geach, Editor

From the Editor

© Talentpay Pty Ltd 2012 All rights reserved. No part of this publication may be reproduced without written permission of the copyright holder.ISSN : 2204-1850Website www.talentpay.com.auEmail editor@compliancereview.com.auEditor Brian GeachPublisher Greg ReillyDesign Debra Jackson

Compliance Review is published quarterly by Talentpay Pty Ltd

Suite 53, Jones Bay Wharf (Upper Level)

26-32 Pirrama Road,Pyrmont NSW 2009, AustraliaTel +61 2 8204 4700Fax +61 2 8204 4750National Toll Free 1800 147 074Email team@talentpay.com.au

Address all correspondence to: Compliance Review Quarterly Talentpay PO Box 22Pyrmont NSW 2009, AustraliaTel 8204 4700 Fax 8204 4750National Toll Free 1800 147 074Email team@talentpay.com.auSubscription enquiries:editor@compliancereview.com.auor visit www.talentpay.com.au

Compliance Review is distributed to subscribers free of charge for education and information purposes.The information contained in this document is general only and should not be taken as legal or professional advice, which should be sought in specific cases.Any views expressed by contributors in this document are those of the individual author and are not held or endorsed by Talentpay.

CRQ asked Kathryn Courtney-prior Head of Talentpay Casting (TpC) for her reaction to Gerry’s letter.

“I spoke to Gerry and told him this problem could be solved by centralising payments through Talentpay with payment made directly to talent and the commission paid directly to the performer representative. Gerry felt however that the confidential terms between performers and their representatives, particularly in regards to commission rates, could be compromised.” she said.

Kathryn though sees this as just another matter of privacy and confidentiality. Talentpay, by the very nature of its casting role, is often privy to confidential information and guards that information

diligently with due attention paid to privacy laws and commercial in confidence provisions.

Notwithstanding this, Gerry has courageously raised some very important issues. In 2013 New South Wales Industrial Relations overhauled the legislation affecting talent (NSW Entertainment Act 2013) paying particular attention to the issue of agent commission rates. But commission rates are obviously only one part of the equation. For NSWIR to mandate that agents must have a trust account and in the next breath effectively admit that in the Act the term ‘Trust Account’ is ill defined and open to interpretation, is frankly not good enough. To use this term without any legal

definition in the Act is misleading at best, potentially lulling talent into a false sense of security as to the business practices of their agent and the safety of their remuneration held on their behalf by that agent.

It benefits no one when agents go bust owing their talent thousands in payments for work already done. How this situation has arisen needs to be investigated and prompt legislative measures taken to mitigate the problem. If this means increasing the performer representatives’ commission rate to cover the cost of compliance so be it. All the reduced commission rates in the world will not be worth a hill of beans if talent in the long run are victimised when their fees go missing due to loopholes in the legislation.

BustedContinued from page 1

COmpLIANCE REvIEW 3 vol 1 No 19.

expensive and arguably less flexible aerial platforms such as piloted fixed wing and rotary aircraft. 

Australia’s Civil Aviation Safety Authority (CASA) says the amended regulations will come into effect on 29 September 2016, and with them comes the introduction of new categories of what are known as remotely piloted aircraft systems (RpAS). The regul-ations define new low-risk commercial RpAS operations, which will allow operators of sub-2kg craft to fly without the need for an approval or licence.  

A drone must be operated in daytime and within visual line of sight of the remote pilot to be classified as low risk. It must not be flown over populous areas and must be kept at least 30 metres from other people.  

The drone cannot be flown greater than 120m above ground and it must not be flown within 5.5km of a controlled airport.  

Commercial operators in this new cat-egory will have to register their operations with CASA.

Relaxed regulations will also apply to private owners of RpA’s of up to 2kg. This is provided they only fly their drone over their private property and they do not operate their aircraft for direct commercial reward. Direct commercial reward is not however merely confined to a monetary return; using a drone for self promotional purposes or uploading drone derived content to YouTube may qualify as ‘commercial gain’.

We are getting a lot of enquiries from film production companies about the use of drones, but despite no lack of good intentions and a desire to comply with the extant regulations on their behalf, there is a general lack of understanding within the industry of the implications of this new technology. From our point of view, it is vital that our clients are insured when using these RpA’s. Your insurance however may be voided should it be found that the RpA was operated illegally or has breached the new regulations governing RpAS operations.

Flying HighNew Legislation Targets Drones with Ramifications Throughout Our Industry

When we speak of a rapidly changing landscape in the media industry, it’s normally the actual media involved that grabs our attention. Only a decade or two ago the ramifications of significant content being spread over payTv, the internet and social media, along with and often rivalling the more conventional press, Tv, cinema and magazine platforms, were hardly an issue. But whilst this changing media landscape by necessity now garners our attention, it would be a mistake to ignore technological and compliance changes in the very industry that supplies content to these myriad media platforms.

The operation of so called drones in the film and television industry, in the main as camera platforms, is a case in point with the regulations affecting remotely piloted aircraft (RpA) set for a shake up following the announcement of amendments to the regulations on the operation of these devices. The industry was quick to embrace drone technology which offered in some cases a commercial alternative to more

by DAVID MANSLEy

“ it would be a mistake to ignore technological

and compliance changes in the very

industry that supplies content to these myriad

media platforms ”

“ it is important that the production company who

engages them also carry the drone coverage to indemnify their own vicarious liability

in the event of an incident occurring ”

DAVID MANSLEY,Managing DirectorMooney’s Insurance Brokers

David mansley has a career in the insurance industry stretching back 27 years. He joined mooney’s Insurance Brokers in 2000 and is the current managing Director. David is considered by industry professionals as an authority in all insurance matters relating to film, advertising and entertainment.

Mooneys Insurance BrokersLevel 12, 122 Arthur StreetNorth Sydney NSW 2059PO Box 84, North Sydney NSW 2059 Telephone: (02) 9955 3999

Continued on page 4

Even if you are contracting an operator who carries their own insurance, it is important that the production company who engages them also carry the drone coverage to indemnify their own vicarious liability in the event of an incident occurring. You may not be liable, but it may cost you a substantial amount

of money in legal fees to convince the courts of that or that it is indemnified by your public liability policy.

With over 30 years experience in film and television risk management, we here at mooneys were quick to recognise the implications of this developing technology and have developed a com-

petitive bespoke approach to insuring our clients. It’s interesting to note that all public liability policies carry aviation exclusions, meaning that there is no cover for any incidents arising out of the use of a drone. However mooneys have amended the exclusion to pick up drones being used for filming (See Box)

COmpLIANCE REvIEW 4 vol 1 No 19.

Flying HighContinued from page 3

Aircraft Endorsement - AustralianExclusion 1 applicable to section 6 – Liability – Aircraft or Hovercraft is deleted and replaced by:

Aircraft or HovercraftClaims arising out of:(a) Liability directly or indirectly caused by, arising out

of or in connection with the ownership, possession, maintenance, repair, servicing, operation, control or use of any Aircraft or Hovercraft by You or on Your behalf.

provided that exclusion 1 does not apply to claims arising out of the ownership, maintenance, operation, possession or use of Drones in Australia subject to:

(i) The operator holding a valid UAV Operators Certificate as issued by CASA and compliance with the terms and conditions of such Certificate; and/or

(ii) The controller holding a valid UAV Controller Certificate as issued by CASA and compliance with the terms and conditions of such Certificate.

Additional Exclusion in respect of DronesThis policy does not cover any liability directly or indirectly caused by or arising from:(a) the ownership, maintenance, operation, possession or

use of Drones for military or law enforcement purposes;(b) the ownership, maintenance, operation, possession

or use of Drones carrying a payload other than fixed photographic, video surveillance, measuring or monitoring equipment;

(c) jet propelled Drones;(d) Drones operated or used outside the operator’s Line of

Sight;(e) Drones (including attached equipment) with a

maximum take-off weight greater than 20kg.(f) Your products that are Drones; or(g) breach of privacy law resulting from the operation or

use of Drones;

(h) a breach of the Civil Aviation Safety Authority (CASA) Regulations including but not limited to the following:

i. Operation on prohibited or restricted area; ii. Operation in controlled airspace; iii. Operation near aerodromes; iv. Permission for operation of unmanned

aircraft near aerodrome; v. Maximum operating height; vi. Dropping or discharging things; vii. Weather and day limitations; viii. Operation in close proximity

(as defined in the regulations) to people; ix. Locations or circumstances where small

Drones may be operated; x. Use of Drones over populated areas; xi. Use of aeronautical radio.

Additional DefinitionsFor the purpose of coverage provide in this endorsement:Drone shall mean unmanned aerial vehicles (other than fireworks, rockets, balloons or kites) used for commercial purposes only in connection with the Business stated in the policy Schedule.CASA shall mean Civil Aviation Safety Authority as specified under Section 8 of the Civil Aviation Act 1988 .Line of Sight shall mean direct visual contact only aided if required by spectacles or contact lenses.Subject other to the terms, General Conditions, Claims conditions and Exclusion of the policy.

Further Information see:(https://theconversation.com/new-relaxed-drone-regulations-will-help-the-industry-take-off-57201) ht tps : //www.casa.gov .au/aircraft/s tandard-page operating-remotely-piloted-aircraft-safely

COmpLIANCE REvIEW 5 vol 1 No 19.

The Increased Imposition of Agency Service Fees:Just a Part of Doing Business or an Irrelevant Anachronism?

Over the last two years there has been a notable increase in the imposition of ASF’s or (performer) agency service fees on advertising agencies or production entities that employ talent sourced from a performer agent’s talent roster. The genesis of the fee which has been extant in one way or another for at least seventy years, harkens back to the days when performer agents were required to undertake the withholding of taxes from talent and the payment of superannuation. It was common for performer agents to undertake this service on behalf of the advertising agency or production company who in law was seen as the formal ‘employer’ of the talent. As a result of this service, the performer agent charged the advertising agency or production company a fee, usually around 15% of the cost of the talent. In many cases though this was an informal arrangement with the responsibilities of either the employer or the performer agent not being specified or defined.  That said, the implication was that a performer agent was undertaking a defined and agreed service on behalf of the advertising agency or production house and it was legitimate to charge a fee.

Anecdotally though, and in the absence of a defined agreement with the ‘employer’, less assiduous performer agents often pocketed the 15% and ignored the implied statutory tax and super obligations. Another more disturbing aspect of the ASF levy, was that ‘employers’ often used the ASF as a way of avoiding their statutory obligations, assuming that if the performer agent charged ASF, the performer agent became the employer of record with all the implied obligations of a employer above and beyond tax and super. A Sydney agent told CRQ that even now, it is not uncommon for an employer of talent

to both pay the ASF but also undertake to administer the statutory payments and deductions. In these cases, the ASF payment was often offered to the performance agent by way of a ‘sweetener’ or incentive, with no written or implied obligation on the performer agent’s part to administer tax and super payments. In other cases, it is simply the result of lackadaisical administration; the old ‘we always pay ASF’ mantra.

So why the increase in the application of ASF’s?

Firstly, under the terms of the new Entertainment Industry Act 2013, the maximum commission performer agents can charge is 10% of the negotiated fee (which includes session and usage) unless there is a Entertainment Industry managerial Agreement (EImA) in place between the individual talent and the agent. Considering the difficulties that agents could experience in reaching an EImA agreement with some of their talent, there appears to be an incentive to employ an ASF in an effort to increase their return above the allowable 10% under the Act. The fees charged by these performer agents are in addition to the performer agent’s commission deducted from the actual talents’ fee. ASF is not covered by the Entertainment Industry Act because it is charged to the adverting agency and is not a cost borne by the talent. Some agents have expanded the definition of an ASF such that it includes payment for services such as extra time spent by bookers, provision of so called ‘self tests’ or the updating of existing talent photos as requested by the client. The ASF also often carries a different name such as Booking Service Fee.

 Secondly, as the cost of employer related obligations increase, smaller ‘employers’ of talent have less resources to devote to administration and compliance and are quite happy to pay the 15% ASF in order to have those obligations outsourced. This in some way goes to explain the reluctance of larger advertising agencies and production houses to pay ASF, preferring to administer their statutory employer obligations in house and why smaller entities such as small photographic and design studios are inclined to the contrary. It is pertinent to stress again

though that mere payment of an ASF does not mean that the the performer agent is the employer of record but rather that the performer agent is undertaking payment of tax and super on behalf of the employer.

  An interesting point here is the issue of whether it is proper to on-charge this fee to the client. most agency/client agreements do not allow agencies to charge for the administration of talent but rather this cost is seen to be covered by the ‘overhead’ component of the agency/client remuneration agreement. However we are reliably informed that most advertising agencies pass the ASF cost to their clients. In the case of an agent deducting a 20% commission from the fee earned by the talent (under an EImA) and then charging a 15% ASF to the advertising agency or production company, the performer agent would earn a fee equivalent to 35% of the talent’s negotiated fee.

This is not an insubstantial cost particularly when effectively it is passed on to the client or end user. If there is a lack of transparency in this process, the client may be totally unaware that an additional fee of 15% is being charged, seeing it as just the cost of hiring talent.

To CRQ though there seems a pretty simple commercial principal in play here. If you decide to pay an ASF, then there should be a clear and unambiguous benefit accruing from that payment. paying ASF’s has nothing to do with convention or past practice and everything to do with transparency and the efficient administration of talent budgets.

by bRIAN GEACH

“ Another more disturbing aspect of the ASF levy, was that ‘employers’

often used the ASF as a way of avoiding their statutory obligations ”

“ mere payment of an SF does not mean that the performer agent is the employer of record but

rather that the performer agent is undertaking payment

of tax and super on behalf of the employer ”

Sydney, a Rising StarThe UNESCO ‘City of Film’ Goes from Strength to Strength

‘Bleeding Steel’ starring Jackie Chan is the largest budget Chinese film to be shot in Australia. The production is expected to contribute over $20 million dollars to the local Sydney economy with a crew of over 230 and an extras cast of over 200.

In the period 2015/16 it is estimated that over 1300 film and photo shoots were approved in Sydney, representing a $50 million dollar expenditure. The flow on effect is not only limited to the amount of money expended in the local economy but includes an increase in exposure to foreign audiences resulting in greater Sydney visitor numbers.

A spokesperson for the Tourism and Transport Forum Australia noted that “Sydney’s increasing appeal as a film destination means the images and experiences of our beautiful city are showcased on screens to a global audience of prospective visitors. That’s advertising money simply cannot buy”.

A large part of the approval and facilitation of these projects rests with the City of Sydney’s dedicated film liason office which not only offers assistance to producers in scouting and securing locations but also provides additional advice and recommendations for filming in Sydney. part of this facilitation process often includes collaboration with other state, local government and statutory authorities. Application procedures have been streamlined whilst low impact productions can be approved online.

The use of Sydney as a location is increasing. Apart from its specific and recognisable visual assets (the Sydney Opera House, Cockatoo Island or the Harbour Bridge for instance) Sydney appeals to foreign directors as a generic urban location. Of further appeal is the relative predictability of climate and the increasingly attractive exchange rate of the Australian dollar. Australia in general also represents a safe and secure environ-ment in which to work, an attribute that is becoming increasingly important to film producers worldwide.

Sydney has hosted the production of both national and international feature films including Alien:Covenant, Hacksaw Ridge, The Great Gatsby, Truth, Gods of Egypt, The matrix Trilogy, Star Wars II and III, Unbroken and The Wolverine.

In addition to this, a substantial number of long running Tv shows and myriad local and international television com-mercials have been shot and produced in Sydney. Indeed, television commercials represent over 80% of total productions in the City of Sydney area.

Sydney film crews and post production facilities are world renowned and represent over 60% of crews employed nationally. Fox Studios in moore park, which is part of the City of Sydney local government area, is one of the largest film production facilities in the Southern Hemisphere and has been an integral player in UNESCO’s decision to name Sydney as a UNESCO “City Of Film’ in 2010.

For further information regarding filming in Sydney contact the City of Sydney film liason office on 02 9265 9452 or go online at: http://www.cityofsydney.nsw.gov.au/ business/regulations/filming-and- photography-permits

by bRIAN GEACH

COmpLIANCE REvIEW 6 vol 1 No 19.

“ Sydney film crews and post production facilities are world

renowned and represent over 60% of crews

employed nationally ”

“ over 1300 film and photo shoots were approved in

Sydney, representing a $50 million dollar

expenditure ”“ The use of Sydney

as a location is increasing ”

Report on Advertiser/Agency Relationships Shakes the IndustryNon Transparent Practices Common in US Media Buying

mention of kickbacks, non disclosure of discounts, financial incentives, pressure on buyers to upscale, manipulation of company structures, conflicts of interest and fiscal obfuscation might lead you to assume we were talking of commercial dealings in some third world banana republic, but you’d be wrong.

With the release of a report in June 2016 by the US company K2 Intelligence examining matters of fiscal transparency in the US advertising industry, these controversial practices above were among some of issues revealed. The report commissioned by the American ANA (Association of National Advertisers) interviewed over 150 sources from a cross section of the US media buying industry, concluding that ‘non transparent business practices were found to be pervasive’ and that full disclosure to advertisers of business transactions undertaken on their behalf was often ignored. 59 interview sources reported direct experience in non transparent dealings whilst some described experiencing multiple cases of these dealings, frequently with separate and unrelated media entities.

For the purposes of the survey, K2 Intelligence defined transparency in a business context as ‘the full disclosure of relevant material required for informed and intelligent decision making’. By inference, non transparency involves a business practice where information is ‘not disclosed or intentionally obscured from one party to a transaction’.

The report quoted a number of examples of these non transparent practices. In one case, so called ‘grey income’ was derived by the simple expediency of the advertising

agency not returning media rebates to the advertiser and keeping payments for un-billed media. In another, the advertising agency’s holding company directed that any media trade above a certain fiscal threshold must be directed to the holding company rather than to any third party.

As part of its investigation into these practices, K2 identified a number of factors influencing the increase in non transparent dealings. It posited that part of the reason for this increase might be that advertisers are driving down agency fees, causing agencies to seek other revenue sources. Advertisers too are often blindsided by rapid changes in the media buying landscape and this factor, along with limited audit rights, conspires to muddy the media buy assessment process.

The controversial report had an immediate affect on the advertising and media buying industry with some agencies disputing the findings whilst others remain ominously silent. In Wpp’s case, chief executive Sir martin Sorrell asserted his company does not receive rebates in the US, a position he has maintained for many years.

In Australia, agencies and advertisers are following developments in the US with interest. Anecdotally, a number of media buying arrangements are under review, officially or otherwise.

mirroring developments in the UK, the ANA in the US intends to rewrite standard agreements and contracts between advertisers and their agencies to protect the advertiser’s interests. As ‘The Economist Express’ wrote in June this year, “Agencies are supposed to serve their clients. many fear they actually serve themselves”.

by bRIAN GEACH

“ Advertisers too are often blindsided by rapid

changes in the media buying landscape ”

“ Agencies are supposed to serve their clients.

Many fear they actually serve themselves ”

COmpLIANCE REvIEW 7 vol 1 No 19.

• An NAB point of sale billboard depicting a toddler in a bubble bath has drawn complaints from some in the community who cite the ad’s sexualisation of young girls and the inappropriateness of the image. The billboard is part of the NAB’s “more than money” campaign which ran across Tv, payTv, digital and social media as well as point of sale. Dismissing the complaints, the Advertising Standards Board noted that “Overall the board considered that the complainants’ interpretation of the advertisement is an interpretation unlikely to be shared by the broader community”.

• The national youth radio station, Triple J is considering moving its Hottest 100 poll from Australia Day to another date in the year. The Hottest 100 poll has become an iconic institution in the national music landscape but Triple J has been criticised by indigenous groups and others for holding the poll on Australia Day, a day they regard as scant cause for celebration. A spokesperson for Triple J said the poll would go ahead as planned on Australia Day in 2017 but that a change to the date in the future would be considered after consulting with indigenous groups, artists and the Triple J audience.

• viewing figures Australia wide for the first part of 2016 indicate that SvOD (Streaming or Subscription video on Demand) services have for the first time passed viewing figures for linear payTv. Both delivery services however have increased their viewing audiences with SvOD accessible in 1.4 million Australian households whilst linear Tv viewers are increasing by over 100,000 per quarter. Rising to the SvOD challenge, Foxtel announced in September that they would be making pricing changes to the delivery of their own SvOD, Foxtel play. Foxtel further announced details of a new deal with HBO including greater access to HBO’s library.

the local eyeNews from around Australia

COmpLIANCE REvIEW 8 vol 1 No 17.

Spikes Asia Festival of Creativity 2016

Held in Singapore over three days in September, the Spikes Asia Festival of Creativity attracted over 2000 of the very best minds from the Asian marketing, advertising and production industries. This year saw over 5000 entries in the Spikes Asia Awards, with winners recognised on the final night of the festival at a gala presentation held in the mastercard Theatre in marina Bay Sands.

Despite over ninety international and regional industry experts serving on the judging juries, Spikes Asia is not only about awards. A full program of training sessions, seminars and talks were held throughout the three days along with the inevitable but no less important networking opportunities.

michele vernasca and Kathryn Courtnay-prior from Talentpay attended this year’s event.

“These gatherings are invaluable.” said Kathryn. “Its not often you get such a concentration of talent and movers and shakers in the industry all in one place”.

Kathryn was particularly pleased with the reaction Talentpay Casting (TpC) had received, saying that talent agents, advertising agencies, marketers and production houses in the main had embraced the concept and the tech-nology involved. One senior producer who is well known for shooting TvCs in disparate locations around the world, remarked that TpC would have broad appeal from producers of quick content as well as producers of large multinational campaigns, with TpC’s inherent swift access to talent in different markets being invaluable.

Talentpay’s casting site also received interest from a number of industry journalists based in the Asia region.

“All in all,” michele said, “this has been a very worthwhile exercise. We’ve met some great people and received very positive feedback on our operation. The job now is to follow up those contacts and establish Talentpay Casting as the go-to casting site in the Asian region.”

LETTERS & EMAILS

Please address all letters to:The Letters EditorCompliance Review QuarterlyPO Box 22 Pyrmont NSW 2009or email us at: editor@compliancereview.com.au

If you wish to become a regular recipient of CRQ, email us at team@talentpay.com.au

“ Kathryn was particularly pleased

with the reaction Talentpay Casting

(TPC) had received ”

COmpLIANCE REvIEW 9 vol 1 No 19.

Based in Singapore as part of the inter-national Talentpay Group and launched in July this year, Talentpay Casting (TpC) has attracted early interest throughout the Asian advertising and production industries.

The core idea behind Talentpay Casting is the aggregation of agents or the creation of a no-cost common market for performers seeking work, with particular emphasis on the Asian market.  The response from those talent agents already contacted has been outstanding. Agents quickly see the benefit of increasing their footprint and reach for no cost. By effectively aggregating agents, TpC is thereby pooling all the quality talent into a single location.

Currently the market for performers is fragmented across individual performer agents and various casting sites, so access by potential end users of talent is difficult. One can either go to a trusted performer agent, and thereby access a relatively small pool, or alternatively one can access a online casting site, but these sites in Asia tend to be relatively rare and those that do exist are very localised. Whilst the new TpC site is Asia-centric, it spreads its net widely, embracing talent from throughout Asia, Australia and New Zealand.

pre-existing casting sites in the region suffer from significant shortcomings, not the least of which is that they have to make money from their listed talent in order to justify the expense, maintenance and commercial risk of setting up such a site. Whilst there are a range of cost models in place the cost burden invariably falls upon the performers themselves, either directly or indirectly. In Asia, this cost is a considerable barrier.

TpC however is unique in that there is no cost to the talent. The performer appearing on the TpC site is able to post multiple photos and content with the added ability to change that content as circumstances change, all at no cost to the talent. Furthermore, there is no cost to agents, production houses, advertising agencies or advertisers to access the site.

TpC’s business model though lifts the financial burden from the performer by drawing upon Talentpay’s existing ‘talent buying system’, a business structure which has revolutionised the processing of talent in the marketplace.

This system commences with a pre-casting brief and ends with the storage of the usage rights together with contract extensions. This process then, includes briefing, casting, negotiation, contracting, on-set administration, talent payment, talent budget reconciliation, documentation and the secure off site storage of master files. These tasks are currently undertaken by production houses or advertising agencies but neither have the technology, centralisation, continuity or specialisation of Talentpay. The involvement of Talentpay in this unique talent buying system usually ends up with a lower cost being charged to the advertiser.

TpC earns its fee by charging for the processing of talent, obviating the need to charge talent for its casting site.

When designing the TpC business model and site, privacy was of prime concern. The site is closed to the general public and only buyers in the form of production houses, advertising agencies, advertisers, film producers etc have access to the site. Agents who have assigned their talent to TpC receive their full commission either via their talent or directly from Talentpay, a choice of a remuneration path that can be agreed upon between the agent and their talent. Direct payments will be made to talent where they do not have formal representation. Everybody benefits; talent, agents and buyers. 

Talentpay has specialised and senior executives overseeing TpC. A global executive, who has an extensive casting background manages all aspects of the site including ongoing collaboration with performers, agents and casting directors. A marketing executive creates engagement campaigns and a technical director constantly monitors and updates the functionality of the site.

The establishment of TpC is an innovative and ground breaking addition to the casting landscape; a no-cost, premium site that contains quality talent from every corner of the globe providing a single portal for casting directors, a global shop-front for agents and a single market for buyers in the form of production houses, advertising agencies advertisers and other producers, regardless of where they live. Talentpay is confident that the end result will be a healthy, vibrant talent industry for all stakeholders.  

• Jennifer Lawrence, star of The Hunger Games franchise and an outspoken advocate for better pay for actresses was named by Forbes magazine as the top earning actress of 2015/16. With earnings of $US46 million Lawrence, bested the next actress on the list, melissa mccarthy who came in at $US33 million. The highest paid actor during this period was Wayne ‘The Rock’ Johnson at $US64 million followed closely by Jackie Chan at $US61 million. A quarter of the global earnings list hails from outside of the US. Four Bollywood stars made the list including Shah Rukh Khan at $US33 million.

• The first Chinese Film Festival in Italy took place in milan in September. milan was chosen in part because it has the largest Chinese community in Italy. Related events also took place in Turin, Rome Florence and venice. Over 40 entries were showcased including documen-taries and feature films.

• Along with many other UK industries and businesses the UK film industry is pondering the effects Brexit will have upon their operations. The industry recieved over 100 million Euros over a seven year period from the European Union for training, development, co-productions, festivals and theatrical distribution. Recent films such as The Iron Lady (1.5 million Euros), Slumdog millionaire (1.3 million Euros) and The Kings Speech (1.1 million Euros) have been the beneficiaries of this funding. Because of this perhaps, 66% of those working in film felt the UK leaving the EU would impact negatively on the industry.

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Casting a Wide Net Talentpay Casting Set to Revolutionise the Casting Process in Asia

by bRIAN GEACH

It may surprise you to know that in Australia there is no general ‘right to privacy’. Broadly speaking, the unauthorised use of your image can be stopped or prevented by recourse to laws that deal with this issue, namely,

(1) Defamation

(2) Australian Consumer Law (misleading and deceptive conduct), and

(3) Passing Off

Your situation may not fall into the above three categories but as you are a someone who derives an income from their image as a part time model, there are commercial considerations and implications, particularly if your image is featured and not incidental to the composition. Keep in mind that although you may not own the copyright of that image you may own the Intellectual property rights.

For further information and advice I suggest you speak to a lawyer who specialises in these matters or perhaps in the first instance go to www.artslaw.com.au for further information on the above issues.

Brian Geach, Editor CRQ

COmpLIANCE REvIEW 10 vol 1 No 19.

I am a competitive swimmer and a part time model. Recently I found that my

image had been used on the cover of a swimming program. The program and indeed the swimming event was sponsored by a maker of swimming goggles and seemingly, because I was wearing one of their products, they used my image without my permission. Since then I’ve also found my image on that company’s website. Is this a breach of privacy and copyright and what should I do about it?

This is not a breach of copy-right as copyright generally rests in the first instance with

the person that created the image, in your case, the photographer. However you may have recourse to stop the use of the image Unfort- unately, as the image has already appeared in print and online (and goodness knows where else these days) it seems you could possibly only stop its future use. If you are represented by an agent I suggest they approach the user of your image (the goggle manufacturer) and seek some form of remuneration for the past use and for future use if the company wishes to use it further. The fee could also include exemplary damages for the unauth-orised use.

I’m an actor resident in Singapore where I am repre-sented by my long term agent.

We’ve had a look at the Talentpay Casting site and think it might be beneficial to both of us. But here’s our problem; I also have agents in Thailand, Malaysia and Australia who represent me in those countries and with whom I also have had a long term relationship.

How does Talentpay Casting deal with somebody like myself who is represented by different agents in different countries?

When entering your details on TpC on the ‘Talent Details’ page add the Agency name,

what they represent you for (Acting or modelling as an example) and then the Region (Singapore or Australia).

Click on ‘Add another Agent’ and then you can list who reps you where and for what skill (i.e. Someone might have a voice agent and an acting agent).

The form will also pick up your current location, so keep that up to date as you move around, and when we are casting a job in Singapore and your current location is set to Singapore we will know to contact the Singapore agent.

Kathryn Courtney-PriorHead of Talentpay Casting

Compliance Review Quarterly’s panel answers your compliance questions.

If you have any questions you would like our panel to consider please contact the editor at editor@compliancereview.com.au

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Disclaimer: * The answers provided by individuals or the organisations they represent, do not constitute legal advice or legal services and are for general information purposes only. Legal advice needs to be tailored to the unique facts and circumstances of an individual case and the answers provided here are not a substitute for obtaining your own independent legal advice.