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No.

13-55545
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATIONAL CONFERENCE OF PERSONAL MANAGERS, INC.
PlaintiffAppellant,
v.
EDMUND G. BROWN, JR. ET AL,
DefendantsAppellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THE HONORABLE DEAN D. PREGERSON, JUDGE, PRESIDING
DISTRICT COURT CASE NO. CV 12-09620 DDP (RZX)

Brief of Amici Curiae in Support of Defendants-Appellees by
Screen Actors Guild - American Federation of Television & Radio Artists,
Directors Guild of America, Inc. and Writers Guild of America, West, Inc.


ANTHONY R. SEGALL
ROTHNER, SEGALL & GREENSTONE
510 S. Marengo Avenue
Pasadena, CA 91101
Telephone: (626) 796-7555
Fax: (626) 577-0124
Counsel for Writers Guild of America, West, Inc.

DAVID B. DREYFUS
DIRECTORS GUILD OF AMERICA, INC.
7920 Sunset Boulevard
Los Angeles, CA 90046
Telephone: (310) 289-2012
Counsel for Directors Guild of America, Inc.


DUNCAN W. CRABTREE-IRELAND
DANIELLE S. VAN LIER
SCREEN ACTORS GUILD-
AMERICAN FEDERATION OF
TELEVISION AND RADIO ARTISTS
5757 Wilshire Blvd., 7
th
Fl.
Los Angeles, CA 90036
Telephone: (323) 549-6627
Facsimile: (323) 549-6624

Counsel for SAG-AFTRA and
Counsel of Record for Amici


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TABLE OF CONTENTS
TABLE OF CONTENTS ....................................................................................... i
TABLE OF AUTHORITIES ................................................................................ ii
CORPORATE DISCLOSURE STATEMENT .................................................... iv
STATEMENT OF COMPLIANCE WITH RULE 29(c)(5) .................................. v
CONSENT OF THE PARTIES ............................................................................ v
INTEREST OF THE AMICI ................................................................................ 1
SUMMARY OF ARGUMENT ............................................................................ 4
ARGUMENT ....................................................................................................... 7
A. Agents and Managers Play Important, but Distinct, Roles in the
Entertainment Industry ................................................................................ 7
1. Agents Hold the Keys to Artists Careers Opportunities ......................... 7
2. Managers Counsel and Guide Artists Careers ........................................ 9
B. The Talent Agencies Act is a Remedial Law Intended to Protect Artists from
Those Who Could Take Advantage of Them ............................................ 11
1. History of the Talent Agencies Act ........................................................12
2. The California Entertainment Commission Concluded that, for the
Protection of Artists, Anyone Who Procures Employment for Artists
Must Be Licensed ..................................................................................14
3. The Talent Agencies Act Clearly Regulates the Procurement of
Employment ..........................................................................................18
4. The Unions Regulate Their Members Agents Under a Robust Set of
Rules that Augment and Supplement the Talent Agencies Act ...............20
5. The Law Regulating Procurement of Artists Employment is Clear .......21
C. Personal Managers Take a Calculated Risk When They Engage Without a
License in an Agents Licensed Activity ................................................... 22
1. Unlicensed Employment Procurement is Not a New Issue .....................22
2. The Risks Managers Face are Less Severe Post-Marathon ....................24
3. Similar Regulatory and Enforcement Principles Are Used in Other
Professions .............................................................................................26
CONCLUSION .................................................................................................. 30
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TABLE OF AUTHORITIES
CASES
Baron v. Los Angeles, 2 Cal.3d 535 (1970) ...........................................................27
Buchwald v. Superior Court, 254 Cal. App. 2d 347 (1967) ............................. 12, 13
Cal. Lab. Code 1700.26 ......................................................................................19
Greenlake Capital v. Bingo Investments, 185 Cal. App. 4th 731 (2010) ................29
Marathon Entertainment Inc. v. Blasi, 42 Cal. 4th 974 (2008) ....................... passim
MKB Management, Inc. v. Melikian, 184 Cal.App.4th 796 (2010) ........................29
Park v. Deftones, 71 Cal. App. 4th 1465 (1999) .............................................. 11, 23
People v. Merchants Protective Corp., 189 Cal. 531 (1922) .................................27
Venturi & Co. v. Pacific Malibu Dev. Corp., 172 Cal. App. 4th 1417 (Cal. Ct. App.
2009) .................................................................................................................29
Waisbren, v. Peppercorn Productions, Inc., 41 Cal. App. 4th 246 (1995) ....... passim
Yoo. v. Robi, 126 Cal. App. 4
th
1089 (2005) ..........................................................23
STATUTES
Cal Bus & Prof Code 6000, et seq. .....................................................................27
Cal. Bus. & Prof. Code 2052(a) .........................................................................26
Cal. Bus. & Prof. Code 10130 ....................................................................... 27, 28
Cal. Bus. & Prof. Code 10131 .............................................................................28
Cal. Bus. & Prof. Code 6125 ...............................................................................27
Cal. Lab. Code 1700.15 ......................................................................................18
Cal. Lab. Code 1700.21 ......................................................................................19
Cal. Lab. Code 1700.23 ......................................................................................19
Cal. Lab. Code 1700.24 ......................................................................................19
Cal. Lab. Code 1700.26 ......................................................................................19
Cal. Lab. Code 1700.27 ......................................................................................19
Cal. Lab. Code 1700.4 .................................................................................. 13, 18
Cal. Lab. Code 1700.44 ......................................................................................14
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Cal. Lab. Code 1700.6 ........................................................................................18
Cal. Lab. Code 1700.7 ........................................................................................18
OTHER AUTHORITIES
Cal. Entertainment Commn Rep., May 23,1985, Cal. Doc. E2035 R4 1985 . passim
Devlin, Comment, The Talent Agencies Act: Reconciling the Controversies
Surrounding Lawyers, Managers, and Agents Participating in California's
Entertainment Industry, 28 Pepp. L. Rev. 381 (2001) .................................. 12, 13
Flores, Note, Thats a Wrap! (Or Is It?): The Unanswered Questions of
Severability Under Californias Talent Agencies Act After Marathon
Entertainment, Inc. v. Blasi, 97 GEO. L.J. 1333 (2009) .................................. 8, 10
OBrien, Comment, Regulation of Attorneys Under Californias Talent Agencies
Act; A Tautological Approach to Protecting Artists, 80 CAL. L. REV. 471 (1992)
.......................................................................................................... 8, 10, 13, 14
Zelenski, Note, Talent Agents, Personal Managers, and Their Conflicts in the New
Hollywood, 76 S. CAL. L. REV. 979 (2003) ................................................ 8, 9, 10
CALIFORNIA LABOR COMMISSIONER CASES
Kesha Rose Sebert pka Ke$ha v. DAS Communications, Ltd., No. TAC 19800 (Cal.
Lab. Commn Mar. 27, 2012) ............................................................................26
Plana v. Quinn, No. TAC 15652 (Cal. Lab. Commn Feb. 24, 2012 .....................26
Solis v. Blancarte, No. TAC 27089 (Cal. Lab. Commn Sep, 30, 2013) ................26
Yoakam v. The Fitzgerald Hartley Co., No. TAC 8774 (Cal. Lab. Commn Jan, 11,
2010) .................................................................................................................26
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iv
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rules 26.1 and 29(c) of the Federal Rules of Appellate
Procedure, Amici provide the following disclosures of corporate identity:
Amicus Screen Actors Guild-American Federation of Television and Radio
Artists certifies that it is a Delaware non-profit corporation doing business as a
labor organization; it does not offer stock; and it has no parent corporation.
Amicus Directors Guild of America, Inc. certifies that it is a California non-
profit corporation doing business as a labor organization; it does not offer stock;
and it has no parent corporation.
Amicus Writers Guild of America, West, Inc. certifies that it is a California
non-profit corporation doing business as a labor organization; it does not offer
stock; and it has no parent corporation.

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v
STATEMENT OF COMPLIANCE WITH RULE 29(c)(5)
Counsel for the parties did not author this brief. The parties have not
contributed money intended to fund preparing or submitting the brief. No person
other than amici curiae, their members, or their counsel contributed money that
was intended to fund preparing or submitting the brief.

CONSENT OF THE PARTIES
In accordance with Ninth Circuit Rule 29-3, Amici have sought the consent
of the parties to file an amicus curiae brief. Counsel for the parties have consented
to the filing of this brief.

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INTEREST OF THE AMICI
Amicus Screen Actors Guild-American Federation of Television and Radio
Artists (SAG-AFTRA) is the nations largest labor union representing working
media artists. SAG-AFTRA represents over 165,000 actors, announcers,
broadcasters, journalists, dancers, DJs, news writers, news editors, program hosts,
puppeteers, recording artists, singers, stunt performers, voiceover artists and other
media professionals. In 2012, SAG-AFTRA was formed through the merger of two
labor unions: Screen Actors Guild (SAG) and the American Federation of
Television and Radio Artists (AFTRA). SAG-AFTRA members are the faces
and voices that entertain and inform America and the world. SAG-AFTRA exists
to secure strong protections for media artists.
Amicus Writers Guild of America, West, Inc. (WGAW) is a labor
organization and the collective bargaining representative of approximately 11,000
professional writers in the motion picture, television and new media industries.
The WGAWs mission is to protect the economic and creative rights of the writers
it represents.
Amicus Directors Guild of America, Inc. (DGA) was founded in 1936 to
protect the economic and creative rights of Directors. Over the years, its
membership has expanded to include the entire directorial team, including Unit
Production Managers, Assistant Directors, Associate Directors, Stage Managers,
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and Production Associates. DGAs over 15,000 members live and work
throughout the United States and abroad, and are vital contributors to the
production of feature films, television programs, documentaries, news and sports
programs, commercials, and content made for the Internet and other new media.
DGA seeks to protect the legal, economic, and artistic rights of directorial teams,
and advocates for their creative freedom.
Through their internal regulations and agreements with non-profit trade
associations, such as the Association of Talent Agents (ATA) and National
Association of Talent Representatives (NATR), the Unions extensively regulate
the relationship between their members and agents who represent them. With
limited exceptions, each Union requires that talent agents who represent its
members be franchised by the Union. The Unions regulations establish standards
of conduct and include conditions and limitations that augment and supplement
provisions in the Talent Agencies Act (the Act). They also create standard form
contracts for talent representation and impose limits or prohibitions on agents
economic interest in production activities.
While the Unions do not regulate their members relationships with personal
managers, SAG-AFTRA recently released a draft Personal Manager Code of
Ethics and Conduct (Managers Code) and has begun soliciting input from the
manager community. The Managers Code is an effort to recognize the role
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managers play in the industry and to formalize relationships between SAG-
AFTRA and the managers who represent its members.
The Unions ability to protect their members is dependent on strong and
uniform enforcement of laws like the Talent Agencies Act. Only a few states have
substantive regulations to govern the artist-agent relationship. In all other states,
the Unions members have only the Union franchises for protection. If unregulated
persons are allowed to perform the same functions as agents, without the same
regulation, this intricate framework will start to decay. California is a leader in
regulations related to the entertainment industry; if its regulations fail, other states
are sure to follow.
Accordingly, the Unions and their members have a fundamental interest in
ensuring these protections are not eroded and have an interest in this litigation.

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SUMMARY OF ARGUMENT
The entertainment industry is unique in many ways. It attracts diverse
participants from wide-eyed aspiring actors
1
who hope to be the next big thing
to unscrupulous individuals who prey upon artists hopes and dreams.
2
The
industry is founded on creativity and the desire to create art and entertainment but
is supported by financial motives. Sometimes, these elements do not mix properly
and the desire for profit overwhelms any good in the relationship.
Working artists typically rely on a small army of people to support their
careers an army that varies in size as the artists career develops. Agents find
and secure job opportunities and negotiate its terms; personal managers counsel
and guide artists, often advising on which job opportunities to pursue; business
managers assist with financial management; attorneys provide legal services;
publicists promote the artist and guide him in his dealings with the media; and the
applicable Union provides benefits and protections, including minimum standards
for wages and working conditions. Each support function plays a particular role in

1
In 2011 approximately 88% of SAG-AFTRA members earned twenty five
thousand dollars ($25,000) or less from their work under SAG-AFTRA freelance
contracts, while less than two percent (2%) had freelance earnings in excess of two
hundred thousand dollars ($200,000). The earnings figures include all income
under SAG-AFTRA freelance contracts, including residuals.

2
It is not uncommon for actors, in particular, but also some writers, directors
and members of film and television crews, to work long hours and under poor
conditions, for little or no compensation, simply to get a foot in the door in the
hope of building a career.
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an artists career. Some of the role differentiation arises from the individuals
skills; others are the result of regulatory schemes designed to protect the artist.
The unique nature of the entertainment industry, particularly the
mechanisms by which artists obtain employment and the brief duration common to
most industry jobs, gives those gatekeepers to employment immense power. Few
artists are in a position to scrutinize or challenge those who hold control over their
employment opportunities. For these reasons, and in light of recurring abuses at
artists expense, the California Legislature has long recognized the need for
regulation of those who hold such power: the procurers of employment; the agents.
The Talent Agencies Act and the Unions franchise systems are critical to
protecting vulnerable individuals in an environment where aspirants will do almost
anything to make it big. These protections help balance the power between
artists and their representatives. Although an agent is technically retained by the
artist, most artists are not in a position of power vis a vis their agents. To the
contrary, the agent holds the keys to the actors career and is in the position to
come between an artist and his work. Accordingly, agents are strictly regulated.
Agents conduct and their relationships with their clients are strictly
regulated by the Talent Agencies Act, which provides that only licensed talent
agents may procure employment on behalf of artists. The Act, and decades of
cases interpreting it, sets forth a functional test for determining who is a talent
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agent and, thus, who must be licensed. The test is simple one who procures
employment for an artist is an agent, irrespective of his title, and he must be
licensed as such. This bright-line functional test is critical to the efficacy of the Act
and to protecting artists.
Functional tests defining the bounds of a regulated profession are not unique
to the Talent Agencies Act. Several other professions, notably law and real estate,
utilize similar conduct-based tests to determine who falls within the licensing
structures purview.
Personal managers take a calculated risk when engaging in activities covered
by the Act. Although the consequences can be severe, there is little to no
regulatory oversight of managers activities and disputes typically arise only when
the manager-client relationship deteriorates. Even in such cases, the managers
unlawful activity can be severed from the rest to allow compensation for the lawful
acts.

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ARGUMENT
One may envision celebrities when thinking of artists in the entertainment
industry; but the primary beneficiaries of the Act are those who are, or who aspire
to be, working artists. It is these individuals who are most vulnerable to abuses by
their advisers. Most advisers are reputable and act in the artists best interest. But
some provide services at rates and under conditions that are unfavorable and unfair
or seek to take advantage of vulnerable artists.
Many advisers provide valuable guidance and counseling services to artists.
This guidance may be especially valuable to those artists who do not understand
the ins-and-outs of the industry and career they have chosen. But that guidance
and counseling must be offered within the boundaries of the law.
A. Agents and Managers Play Important, but Distinct, Roles in the
Entertainment Industry
Agents and managers are two of the most important representatives in an
artists career. Agents are the gatekeepers to an artists employment, serving as the
middlemen between artists and their potential employers and negotiating the terms
of that employment. Managers counsel and provide guidance on the course of an
artists career, including on the selection of other advisers and job opportunities.
1. Agents Hold the Keys to Artists Careers Opportunities
The most important role an artists agent plays is that of intermediary to
potential employment. Agents are the middlemen between artists and potential
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employers, responsible for submitting their clients for job opportunities and
negotiating the terms of their employment. Flores, Note, Thats a Wrap! (Or Is
It?): The Unanswered Questions of Severability Under Californias Talent
Agencies Act After Marathon Entertainment, Inc. v. Blasi, 97 GEO. L.J. 1333, 1337
(2009). They solicit film and television engagements and live appearances or
might aid an artist in licensing rights to his or others creative works. Id. The
agents primary function is to market the artists talent and get him the best
possible deal. OBrien, Comment, Regulation of Attorneys Under Californias
Talent Agencies Act; A Tautological Approach to Protecting Artists, 80 CAL. L.
REV. 471, 478-9 (1992).
Artists are typically employed on individual short-term projects for a variety
of employers rather than establishing long-term relationships with a single
employer. Zelenski, Note, Talent Agents, Personal Managers, and Their Conflicts
in the New Hollywood, 76 S. CAL. L. REV. 979, 981 (2003). Accordingly, agents
work to establish relationships with a multitude of employers, negotiating the best
possible terms each time. Id. Generally speaking, an agents focus is on the deal:
on negotiating numerous short-term, project-specific engagements between buyers
and sellers. Marathon Entertainment Inc. v. Blasi, 42 Cal. 4th 974, 983 (2008)
(citing, Zelenski, 76 S. CAL. L. REV. at 981).
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Agents are typically paid a commission on their clients gross earnings.
Zelenski, 76 S. CAL. L. REV. at 981. Consequently, an agents livelihood depends
on cultivating valuable connections on both sides of the artistic labor market.
Marathon, 42 Cal. 4th at 983 (citing, Birdthistle, A Contested Ascendancy:
Problems with Personal Managers Acting as Producers (2000) 20 Loyola L.A. L.
Rev. 493, 502-03). Because agents earnings are dependent on their clients
transitory employment, they have incentive to represent a large number of clients
and to obtain for them as much work as possible. Zelenski, 76 S. CAL. L. REV. at
981. But the nature of this relationship has potential to put the agents self-interest
in conflict with their clients. Id. Accordingly, the relationship between talent
agents and their clients is regulated.
2. Managers Counsel and Guide Artists Careers
Personal managers play an important role in an artists career. Typically
having fewer clients than an agent, they are often an artists trusted adviser,
providing counsel and carefully guiding his career. Managers invest time, and
sometimes money, in the hope their clients will eventually be successful.
Managers traditionally oversee the artists day-to-day activities as well as
develop long-term strategies for the artists career growth, counseling in the
selection of job material, other personnel to be employed by the artist, and the
proper vehicles for showcasing or promoting the artists talent. Flores, 97 GEO.
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L.J. at 1338. They work in conjunction with other third-party handlers and advise
[the artist] on career decisions they [also]. oversee the deals that have been
brokered by [the artists] agents. Zelenski, 76 S. CAL. L. REV. at 982. The
essence of their service is counseling the artist in the development of his/her
professional career and their fees reflect not only the value of an intangible
service but the greater risk which is assumed by the personal manager in the
eventual artistic success of their clients. Cal. Entertainment Commn Rep., May
23,1985, Cal. Doc. E2035 R4 1985 at p. 9.
As the personal manager title indicates, the relationship between an artist
and his manager is often personal as well as professional. Managers may advise on
or manage the artists finances or may even lend the artist money in times of need.
OBrien, 80 CAL. L. REV. at 482. The manager may advise on and serve as a liaison
with the artists other representatives. Id. And a manager may serve as an artists
confidante or personal advisor, helping to manage personal relationships and other
aspects of an artists life. Id. In essence, the personal manager helps give the artist
room to be an artist. Id.
The case law recognizes this role. The primary function of the personal
manager is that of advising, counselling [sic], directing and coordinating the artist
in the development of [his] career. Waisbren, v. Peppercorn Productions, Inc., 41
Cal. App. 4th 246, 252 (1995) (quoting OBrien, 80 CAL. L. REV. at 481-482).See
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also Marathon, 42 Cal. 4th at 982; Park v. Deftones, 71 Cal. App. 4th 1465, 1469-
70 (1999). They advise in both business and personal matters, frequently lend
money to young artists, and serve as spokespersons for the artist. Park, 71 Cal.
App. 4th 1470 (citing Waisbren, 41 Cal. App. 4th at 259). Managers typically
accept a higher risk clientele and offer a much broader range of services, focusing
on advising and counseling each artist with an eye to making the artist as
marketable and attractive to talent buyers as possible. Marathon, 42 Cal. 4th at
983-84. Lacking regulatory hurdles, and because they have a greater degree of
involvement and risk, managers typically have a smaller client base and charge
higher commissions than agents [and] may also produce their clients work and
thus receive compensation in that fashion. Id.
B. The Talent Agencies Act is a Remedial Law Intended to Protect Artists
from Those Who Could Take Advantage of Them
The Talent Agencies Act is a remedial statute that strictly regulates talent
agents conduct and their relationship with their clients. Like many other
professional licensing statutes, it provides a detailed regulatory and licensing
structure and includes various protections against misconduct by talent agents.
Pursuant to the Act, only licensed talent agencies may procure employment on
behalf of artists. The Act, and the cases interpreting it, sets forth a functional test
for determining who is a talent agent and, thus, who must be licensed. The test is
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simple if one procures employment for an artist, he is an agent, regardless of
what title he assumes, and must be licensed as such.
The Act strictly regulates talent agents to ensure the welfare of artists. See,
Waisbren, 41 Cal. App. 4
th
246. It is a remedial law, designed to correct past
abuses, that was enacted for the protection of artists. Buchwald v. Superior Court,
254 Cal. App. 2d 347, 350-351 (1967). As such, it should be liberally construed to
promote its general intent. Waisbren, 41 Cal. App. 4
th
at 254, (citing Henning v.
Industrial Welfare Comm., 46 Cal. 3d. 1262 (1988)). The provisions plaintiffs-
appellants point to as vague are broadly crafted to ensure the Acts protections are
directed at regulated actions, not simply job titles.
1. History of the Talent Agencies Act
Procurement of artists employment has been regulated for nearly a century.
The Private Employment Agencies Law of 1913 included the first regulations
aimed at protecting artists from abuses at the hands of their representatives.
Devlin, Comment, The Talent Agencies Act: Reconciling the Controversies
Surrounding Lawyers, Managers, and Agents Participating in California's
Entertainment Industry, 28 Pepp. L. Rev. 381 (2001). These regulations were
incorporated into the California Labor Code when the Artist Managers Law was
enacted in 1937. Id. The artist manager was added in 1943 and then, in 1959,
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was separated from that Act into its own section. OBrien, 80 CAL. L. REV. at 493-
94.
The California Legislature repealed certain provisions in 1967 but left the
regulation of artist managers in the Labor Code. Devlin, 28 Pepp. L. Rev. at 387.
From 1943, when first added to the Employment Agencies Act, until 1978 when
the law was renamed the Talent Agencies Act, artist manager was defined as:
[A] person who engages in the occupation of advising,
counseling, or directing artists in the development or
advancement of their careers and who procures, offers,
promises or attempts to procure employment or
engagements

Buchwald v. Superior Court, 254 Cal. App. 2d 347, 350 fn.2 (1967) The Act was
renamed the Talent Agencies Act in 1978. OBrien, 80 CAL. L. REV. at 494. The
term talent agent, was, and still is, defined as:
[a] person or corporation who engages in the occupation
of procuring, offering, promising or attempting to
procure employment engagement for an artist or artists.

Cal. Lab. Code 1700.4. The definition allows that a talent agent may, in
addition, counsel or direct artists in the development of their professional careers.
Cal. Lab. Code 1700.4. While the early definition was broad, the post-1978
definition made clear that the Acts regulatory focus was on the act of procuring
employment, with recognition that those who procure employment talent agents
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may also incidentally engage in other activities related to artists professional
careers.
The Legislature made several amendments to the Act in 1982 including
creating certain safe harbors. Particularly, the Legislature added a safe-harbor
provision for unlicensed individuals, such as personal managers, to work in
conjunction with, and at the request of, a duly licensed and franchised talent
agency in the negotiation of an employment contract. Cal. Lab. Code 1700.44.
At the same time, it created the California Entertainment Commission (the
Commission) to study the Act and, if applicable, to suggest changes. OBrien, 80
CAL. L. REV. at 494-5.
2. The California Entertainment Commission Concluded that, for
the Protection of Artists, Anyone Who Procures Employment for
Artists Must Be Licensed
The California Legislature created the California Entertainment Commission
in 1982 to study the laws and practices of California and other states relating to the
regulation of artists agents and representatives. Waisbren, 41 Cal. App. 4
th
at p.
256. The Commission consisted of the Labor Commissioner, three talent agents,
three personal managers, and three artists, ensuring that all affected parties had a
voice in the process. Cal. Entertainment Commn Rep. at pp. 1- 2. The
Commissions 1985 report formed the basis for the 1986 amendments to the Talent
Agencies Act. Waisbren, 41 Cal. App. 4
th
at 258.
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In its report, the Commission addressed six principal issues, two of which
are particularly relevant. Those three issues are:
1. Under what conditions or circumstances, if any,
should a personal manager or anyone other than a licensed
talent agent be allowed to procure employment or
engagements for an artist without being licensed as a
talent agent?
5. Should the entire Act be repealed and/or should there
be a separate licensing law for personal managers?
Cal. Entertainment Commn Rep. at p. 5.
The Commissions conclusion was clear the Act regulates procurement of
employment and, to protect artists, anyone who procures employment must be
licensed, regardless of job title. Specifically, the Commission concluded that
personal managers or anyone not licensed as a talent agent should not, under any
condition or circumstances, be allowed to procure employment for an artist without
being licensed as a talent agent, other than as already permitted by the Act. Cal.
Entertainment Commn Rep. at p 6.
Although its response was clear, [w]hen, if ever, may a personal manager
or anyone other than a licensed Talent Agent, procure employment for an artist
without a license was the principal, and philosophically the most difficult issue
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in the Commissions meetings. Cal. Entertainment Commn Rep. at p. 7.
Recognizing the managers contention that sometimes they engage in limited
activities which could be construed as procuring employment, activity that is
only a minor and incidental part of their services to the artists, the Commission
did attempt to formulate a compromise to allow limited unlicensed procurement
activity. Id. at 9-11. The Commission considered exempting casual
conversations regarding an artist or manager involvement in contract negotiations,
as well as exemptions where no fee or commission is charged. Id. at p.10-11.
Nonetheless, the Commission concluded that the prohibitions against
unlicensed procurement must remain total and without exceptions. Id. at p. 11.
After attempting to craft a compromise, the Commission concluded that:
the prohibitions of the Act over the activities of anyone
procuring employment for an artist without being
licensed as a talent agent must remain, as they are today,
total. Exceptions in the nature of incidental, occasional or
infrequent activities relating in any way to procuring
employment for an artist cannot be permitted: one either
is, or is not, licensed as a talent agent, and, if not so
licensed, one cannot expect to engage, with impunity, in
any activity relating to the service which a talent agent is
licensed to render. There can be no sometimes talent
agent, just as there can be no sometimes professional in
any other licensed field of endeavor.
Id. at 11-12.
The Commission also deemed it unnecessary to license personal managers
because the act of procurement is regulated, not the person. It concluded that,
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[f]or the protection of artists, anyone who procures employment for an artist
should be licensed. Id. at p. 30. The Commission opined that any licensing
scheme for personal managers would be needlessly duplicative with the Act,
reiterating that [i]t is not a person who is being licensed: rather, it is the activity
of procuring employment. Id. at p. 20.
The Commission took into careful consideration the interests of agents,
managers, and artists, and acknowledged the long-standing tensions between the
roles of agents and managers. It concluded that the Act was clear and meaningful
and that any acts of procurement without a talent agency license, no matter how
incidental, occasional or infrequent are prohibited. This view that a license is
required for procurement activities was recognized as the intent of the
Legislature and expressly adopted by the Waisbren court, and has remained the
prevailing law to date. Waisbren, 41 Cal. App. 4
th
at 259. As the court noted,
[b]y creating the Commission, accepting the Report, and codifying the
Commisions recommendations in the Act, the Legislature approved the
Commissions view that one cannot be permitted to procure employment for an
artist without a license, and that the Act imposes a total prohibition on the
procurement efforts of unlicensed persons. Id. (citing Cal. Entertainment Commn
Rep. at p. 11) (emphasis in original).
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This recognition by the Commission, by commentators, and by case law puts
managers on notice of the role they are legally permitted to perform and the lines
they are not permitted to cross.
3. The Talent Agencies Act Clearly Regulates the Procurement of
Employment
Under the Act, anyone who seeks to procure employment for an artist,
irrespective of title, must be licensed as a talent agent. The Act is clear in that
regard,
3
as are decades of administrative and judicial decisions interpreting it. The
Talent Agencies Act provides a comprehensive regulatory scheme for the licensing
of talent agents.
4
Pursuant to the Act, in order to obtain a talent agency license, the
agent must submit a detailed application plus fingerprints and an affidavit of good
moral character. Cal. Lab. Code 1700.6. The agent must also obtain and submit a
surety bond (or acceptable alternative) in the amount of fifty thousand dollars
($50,000).

Cal. Lab. Code 1700.15. The Labor Commissioner has the authority to
investigate a talent agency prior to granting a license. Cal. Lab. Code 1700.7.

3
The Act defines talent agency as a person or corporation who engages in
the occupation of procuring, offering, promising, or attempting to procure
employment or engagements for artists Cal. Lab. Code 1700.4. The Act
defines artists to include a range of individuals in the entertainment industry,
including actors, radio artists, directors, writers, and other artists and persons
rendering professional services in the entertainment industry. Id.
4
Similarly, each of the Unions has its own regulatory scheme for the
franchising of talent agents. The Unions requirements are often parallel to the
Acts regulations and, in some instances provide for stricter scrutiny of and
additional assurances from the applicant agent.
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The Act provides for oversight of licensed talent agents. Under the Act, an
agency must seek and obtain Labor Commissioner approval of all forms of
contracts to be used in contracting with its clients and must obtain Labor
Commissioner approval prior to transferring any interest in the agency. Cal. Lab.
Code 1700.23, 1700.30. Additionally, the agency must file its schedule of fees
and must maintain certain records
5
that are subject to inspection by the Labor
Commissioner. Cal. Lab. Code

1700.24, 1700.26, 1700.27).
For the protection of artists, the Act also prescribes certain protections and
penalties. It requires that talent agents maintain a client trust account and that all
funds received and held on behalf of an artist be deposited into that account.

Cal.
Lab. Code 1700.25. Any such funds must be paid over to the artist within a
specified time frame and a specific dispute resolution mechanism is codified in the
Act in the event the agent does not comply.

Id. The Act also provides a mechanism
whereby the Labor Commissioner can suspend or revoke a license for an agents
misconduct.

Cal. Lab. Code 1700.21. This critical enforcement mechanism is
notably absent with personal managers.
Another fundamental and crucial protection encompassed within the Act, but
absent among the unlicensed, is the surety bond mandated as a prerequisite to

5
These records include a list of the agents clients and records pertaining to
the work procured on behalf of those clients, including the clients earnings and
fees received by the agent. Cal. Lab. Code 1700.26.
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20
licensure. The surety bond ensures that artists who suffer monetary loss due to an
agents mishandling of client funds will be able to find some redress. The process
of claiming against the bonds is relatively quick and simple and allows the artist to
recover some or all of his mishandled funds.
6
If an unlicensed individual
mishandles artists funds, the only remedy is litigation a costly and often slow
alternative with no guarantee of recovery, even if the artist obtains a judgment in
his favor. Many artists do not have the wherewithal to pursue their remedies
through the courts, leaving them twice victimized.
4. The Unions Regulate Their Members Agents Under a Robust Set
of Rules that Augment and Supplement the Talent Agencies Act
As a complement to the Acts licensing and regulatory requirements, the
Unions extensively regulate the relationship between their members and the talent
agents who represent them.
7
Chief among these regulations is the requirement that
talent agents who represent their members be franchised.
8
These franchise

6
SAG-AFTRA, for example, assists its members in making claims against
surety bonds in appropriate situations. There have been several instances where
claims have totaled tens of thousands of dollars and at least one recent incident in
which the misappropriated funds amounted to several hundred thousand dollars.
7
SAG, Codified Agency Regs., rule 16(g); AFTRA, Regs. Governing Agents,
rule 12-C; DGA, Agency Agrmt.between Directors Guild of America and
Association of Talent Agents; WGA, Artists Manager Basic Agreement of 1976.
8
Although SAG-AFTRAs membership rules include a prohibition of its
members working with agents who are not franchised, Screen Actors Guild had
stayed enforcement of this rule for those members who are represented by ATA
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21
agreements establish standards of conduct for agents and require compliance with
certain conditions, limitations, and protections that augment and supplement the
Act.
9
For example, the Unions franchises: authorize certain types of inspections
of prospective agents, including site inspections; require the use of contracts
promulgated or approved by the Union; limit commissions on certain income
streams; and limit or prohibit financial interests that may pose a conflict of interest
with an agents clients. Additionally, certain of the Unions may require the agent
post additional surety bonds with the Union.
The Act and the Union franchises include many protections for artists that
unlicensed individuals avoid. Without the protections and remedies incorporated
in the Act and the Union franchises, vulnerable artists may be without a remedy in
instances of malfeasance. Moreover, each of the Unions franchise agreements
incorporates an arbitration procedure that either the artist or the agent can institute
when a dispute arises under the franchise.
5. The Law Regulating Procurement of Artists Employment is Clear

and/or NATR-member agents pending further action, a policy which SAG-AFTRA
has left in place for work under legacy-SAG agreements. The Basic Contract
between SAG and the ATA and NATR, which governed the formal relationship
between them, expired on or about October 20, 2000 and no amendment or
extension has since been entered into, other than a fifteen (15) month period during
which ATA and/or NATR-member agents maintained the status quo.
9
Each of the Unions requires that a talent agent seeking to represent its
members have a valid license as a prerequisite to becoming franchised.
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22
A courts primary role in interpreting a statute is to effectuate the intent of
the legislature.
10
The Talent Agencies Act and decades of case law interpreting it
are clear one who procures employment for an artist is a talent agent and must be
licensed as such. The California Entertainment Commission wrestled with
possible compromises that would allow unlicensed individuals to engage in limited
acts of procurement, ultimately finding that, for the protection of artists, there
could be no compromise and the prohibition must be total. The Legislature adopted
this finding in adopting the Commissions report. Waisbren, 41 Cal. App. 4
th
at
258-59. It would not be appropriate for the court to disrupt that careful balance.
C. Personal Managers Take a Calculated Risk When They Engage
Without a License in an Agents Licensed Activity
1. Unlicensed Employment Procurement is Not a New Issue
Some personal managers engage in unlawful procurement activity and are,
or reasonably should be, aware of the risks involved in their activity. Plaintiff-
Appellants own manager amici represent several high-profile examples. While
some managers believe they should not be subject to the Act, it would be

10
The Legislatures clear intent has been to strengthen the Acts ability to protect
performers against those who would seek to take advantage of them. On January
1, 2006, Senate Bill 184 took effect, raising the amount of the surety bond talent
agencies must deposit with the California Labor Commissioner from $10,000 to
$50,000. This sizeable increase in the States Talent Agency Bond underlines the
Legislatures intent to not only support the existing Act, but to strengthen its
umbrella protection over artists in this State.
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23
disingenuous for a talent manager of any experience to claim he is unaware that
procuring employment for his clients subjects him to potential liability.
The Act, its legislative history and decades of case law interpreting it make
clear that procurement of employment by anyone other than a licensed agent is
unlawful. Accordingly, until recently, courts have consistently held that under
which managers engage in unlawful procurement are void ab initio. See, e.g.Yoo.
v. Robi, 126 Cal. App. 4
th
1089 (2005) (acts of procurement rendered contract
between manager and singer void despite express recognition that manager was not
an agent); Park, 71 Cal. App. 4
th
1465 (personal managers unlicensed
procurement of engagements for a band rendered the parties contract void);
Waisbren, 41 Cal. App. 4
th
246 (incidental or occasional acts of procurement by
manager were sufficient to render the parties contract unenforceable).
The calculated risk inherent in unlicensed procurement can be analogized to
risks many drivers take. Many drivers do not abide by posted speed limits,
recognizing that law enforcement does not have the means to stop every driver
who exceeds it. They rationalize that even if caught, the penalties may not be so
severe if they were not exceeding the limit by too much. The driver gauges the
traffic and surroundings, estimating how fast he can go before he risks drawing
attention to his vehicle. Similarly, many unlicensed and uninsured individuals
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24
drive on a daily basis whether out of convenience or necessity trying to avoid
law enforcement attention, knowing they risk a citation or worse.
Just as speeding or unlicensed drivers know that an officer can be waiting
around the next corner, personal managers know that each act of unlicensed
procurement puts them at risk of being caught. Whether done for the clients
benefit or his own, the manager accepts the inherent risk.
2. The Risks Managers Face are Less Severe Post-Marathon
The landscape for agent-manager disputes changed in 2008 when the
Supreme Court of California held that a managers lawful acts can be severed from
those, such as employment procurement, found to be illegal. In Marathon
Entertainment v. Blasi, a management company sued its client for, among other
claims, breach of an oral contract when she terminated the contract and ceased
paying commissions. Marathon, 42 Cal. 4
th
974, 981. The actress claimed
Marathon violated the Act by soliciting and procuring employment on her behalf
without a license. Id. The Labor Commissioner voided the contract ab initio and
barred the manager from recovery. Id. After a trial de novo and subsequent appeal,
the Court of Appeal concluded that the Act applied to personal managers but that
the doctrine of severability, as embodied in Civil Code 1599, should apply to the
controversy. Id. at 982 (citing Cal. Civ. Code 1599).
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The California Supreme Court affirmed the lower courts unanimous holding
that the Act applied to personal managers. The court correctly noted that the Act
regulates conduct, not labels; it is the act of procuring (or soliciting), not the title
of ones business, that qualifies one as a talent agency and subjects one to the
Acts requirements. Marathon, 42 Cal. 4
th
at 986 (citing Cal. Civ. Code
1700.4, subd. (a)). Echoing the unanimous Court of Appeal, it held that a
personal manager who solicits or procures employment for his artist-client is
subject to and must abide by the Act. Id. (citations omitted).
The Court recognized that management contracts could include both legal
and illegal provisions. Noting that California had codified the common law
doctrine that when a contract has several distinct objects, of which one at least is
lawful, and one at least is unlawful the contract is void as to the latter and valid
as to the rest. Marathon, 42 Cal. 4
th
at 991 (quoting Cal. Civ. Code 1599). The
Court noted that [i]n deciding whether severance is available [t]he overarching
inquiry is whether the interests of justice would be furthered by severance.
Id. at 996 (quoting Armendariz v. Foundation Health Psychcare Services, Inc., 24
Cal. 4
th
83 at 124). If the illegal provision can be extirpated from the contract by
means of severance or restriction, then such severance and restriction are
appropriate. Id. Noting that the doctrine is equitable and fact specific, the
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26
Court deferred its application to the Labor Commission and the trial courts.
Marathon, 42 Cal. 4
th
at 998.
In the years since Marathon was decided, the Labor Commissioner has
exercised her discretion to sever unlawful acts. See, e.g. Kesha Rose Sebert pka
Ke$ha v. DAS Communications, Ltd., No. TAC 19800 (Cal. Lab. Commn Mar.
27, 2012) (applying the doctrine of severability to reduce a managers commission
despite finding that the illegal activities were substantial and significant); Plana
v. Quinn, No. TAC 15652 (Cal. Lab. Commn Feb. 24, 2012) (applying the
doctrine of severability because the "management services took up the bulk of the
relationship"); Yoakam v. The Fitzgerald Hartley Co., No. TAC 8774 (Cal. Lab.
Commn Jan, 11, 2010) (applying the doctrine of severability upon finding that the
procurement was collateral to the main purpose of an agreement and insubstantial).
But see, Solis v. Blancarte, No. TAC 27089 (Cal. Lab. Commn Sep, 30, 2013)
(finding no basis for severance where the central purpose of the parties agreement
was illegal).
3. Similar Regulatory and Enforcement Principles Are Used in
Other Professions
Laws restricting activities to licensed professionals are not limited to the
entertainment industry. The practice of medicine is restricted to licensed doctors.
Cal. Bus. & Prof. Code 2052(a) ([A]ny person who practices or attempts to
practice any system or mode of treating the sick or afflicted in this state, or who
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27
diagnoses, treats, operates for, or prescribes for any ailment without having a
valid, unrevoked, or unsuspended certificate is guilty of a public offense). Real
estate brokers are similarly licensed. Cal. Bus. & Prof. Code 10130 (It is
unlawful for any person to engage in the business of, act in the capacity of,
advertise as, or assume to act as a real estate broker or a real estate salesperson
within this state without first obtaining a real estate license) And only lawyers
licensed in the state may engage in the practice of law.
11
Cal Bus & Prof Code
6000, et seq.
Notably the State Bar Act does not define practice of law, just as the
Talent Agencies Act does not define procure employment, deferring to the
common law and common sense. (T)he Legislature used the term 'practice law'
without defining it. The conclusion is obvious and inescapable that in so doing it
accepted both the definition already judicially supplied for the term and the
declaration of the Supreme Court that it had a sufficiently definite meaning to
need no further definition. Baron v. Los Angeles, 2 Cal.3d 535, 542-43 (1970).
See also, People v. Merchants Protective Corp., 189 Cal. 531, 535 (1922) (quoting
People v. Alfani, 227 N. Y. 334 (1919) (The legislature is presumed to have used
the words as persons generally would understand them 'to practice as an attorney
at law' means to do the work as a business which is commonly and usually done by

11
No person shall practice law in California unless the person is an active
member of the State Bar. Cal. Bus. & Prof. Code 6125.
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lawyers in this country.). As with the Talent Agencies Act, these regulatory acts
use a functional test, rather than ones job title, to determine who falls within their
purview.
The efficacy of the Talent Agencies Acts functional test can be seen in
courts application of Marathon to other licensed professions. The holding
allowing the severance of lawful and unlicensed conduct has been applied to
compensation disputes in other regulated professions, notably real estate.
California's Real Estate Law bears some similarity to the Talent Agencies
Act, particularly in the functional test defining its coverage. It provides: "[i]t is
unlawful for any person to engage in the business, act in the capacity of, advertise
or assume to act as a real estate broker or a real estate salesman within this state
without first obtaining a real estate license ... Cal. Bus. & Prof. Code 10130. A
real estate broker is: a person who, for a compensation or in expectation of a
compensationdoes or negotiates to do one or more of five listed acts. Cal. Bus.
& Prof. Code 10131. Like the Talent Agencies Act, the definition is functional,
providing that it is the acts performed rather than the individuals job title that
subject him to regulation.
In Venturi & Company v. Pacific Malibu Development Corporation, the
parties contract required the plaintiff to provide a range of services, some that
require a real estate broker license, which the plaintiff did not possess. Venturi &
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29
Co. v. Pacific Malibu Dev. Corp., 172 Cal. App. 4th 1417, 1421 (Cal. Ct. App.
2009). Citing to Marathon, the court recognized that some of the plaintiffs actions
may have been lawful without a license. Id. at 1423 (citing Marathon, 42 Cal. 4
th
at
980-81). Accordingly, it vacated the lower courts grant of summary judgment for
the defendant. Id. at 1425.
Similarly, in MKB Management, Inc. v. Melikian, a property management
company sued a property owner who failed to compensate it for services under the
parties agreement. MKB Management, Inc. v. Melikian, 184 Cal.App.4th 796, 800
(2010). The defendants argued that the company could not recover because it did
not possess a real estate broker license. Id. at 801. After a detailed review of the
Blasi courts severability analysis, the court determined severance was appropriate
because some of the plaintiffs acts did not require a license. Id. at 803-05.
In Greenlake Capital v. Bingo Investments, the court once again undertook a
detailed analysis of Marathon, as well as Venturi and MKB Management, to
determine if a financial adviser who was not a licensed real estate broker could
recover when some elements of the parties relationship required a license.
Greenlake Capital v. Bingo Investments, 185 Cal. App. 4th 731 (2010). The court
again remanded the case for a determination of whether severability was
appropriate in the complicated factual situation where some acts may have been
lawful without a license. Id. at 743.
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As illustrated above, the Talent Agencies Act is hardly unique in using a
functional definition to determine who falls within its purview.
Individuals who represent artists can be either managers or agents, but they
cannot be both. Each role has its limitations and its benefits. If one procures
employment, they are considered agents and are therefore subject to the licensing
requirements and other applicable restrictions and obligations found in the Act and
the Unions franchises. Alternatively, they can forego the ability to procure
employment and act as a manager, thus avoiding the licensing requirements,
commission limits, and other restrictions and obligations that agents must abide by.
CONCLUSION
Courts have repeatedly upheld the constitutionality of the Talent Agencies
Act. It may be that there are areas in which it can be updated to provide greater
certainty. But the Act, and decades of interpretation of it, is clear that those who
procure employment must be licensed or they risk consequences for their violation.
As the Entertainment Commission clearly stated, there can be no sometimes
talent agent, just as there can be no sometimes professional in any other licensed
field of endeavor. Cal. Entertainment Commn Rep. at p. 11-12. If one seeks to
procure employment for artists, he is an agent and must be licensed. If Plaintiffs-
Appellants believe that the Act has outlived its usefulness and should be repealed
or amended, their remedy is to seek such changes through the democratic process.
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For the foregoing reasons and those in the Appellees Brief, Amici
respectfully urge this Court to affirm the decision below.
Dated: December 13, 2013 Respectfully submitted,

By: /s/ Duncan W. Crabtree-Ireland
DUNCAN W. CRABTREE-IRELAND
DANIELLE S. VAN LIER
SCREEN ACTORS GUILD-AMERICAN
FEDERATION OF TELEVISION AND RADIO
ARTISTS
Counsel of Record for Amici

ANTHONY R. SEGALL
ROTHNER, SEGALL & GREENSTONE
Counsel for Writers Guild of America, West,
Inc.

DAVID B. DREYFUS
DIRECTORS GUILD OF AMERICA, INC.
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CERTIFICATE OF COMPLIANCE

I certify pursuant to Federal Rules of Appellate Procedure 32(a)(7)(C) that the
attached brief is proportionately spaced, has a typeface of 14 points, and contains
6,997 words, excluding those parts of the brief that the Rule exempts from the
word-count limitation, which is less than the 7,000 words permitted by Fed. R.
App. P. 29(d).

Dated: December 13, 2013 Respectfully submitted,


By: /s/ Duncan W. Crabtree-Ireland
DUNCAN W. CRABTREE-IRELAND


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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Brief of Amici
Curiae in Support of Defendants-Appellees by Screen Actors Guild - American
Federation of Television & Radio Artists, Directors Guild of America, Inc. and
Writers Guild of America, West, Inc. with the Clerk of the Court for the United
States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system on December 13, 2013.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.



/s/ Duncan Crabtree-Ireland
DUNCAN CRABTREE-IRELAND

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