How to Get Your Money When an Agency Fails to Pay You

LABOR DAY

Monday, September 6, 2004

[Last Updated: August 24, 2005 ]

"An agent will pay each client his or her share of all monies received on behalf of the client in a timely manner. All monies belonging to the client received by the agent shall be faithfully accounted for by the agent and promptly paid over to the client." -- §16, "EIC Code of Ethics: An Ethical Standard for Talent Agents"

An article several years ago said, "The new agencies are wooing top talent with promises of obsequious service, fast payment, and owners much closer to the age of the models they represent" (Jennifer Wilson, "Face-Off," Los Angeles, Nov. 1998, p. 28).

The most common modeling scams involve paying fees for photos and training to get work as models, then not getting modeling jobs. The scam happens before anyone gets work. Yet there are also less common but equally bad, and even more frustrating modeling scams which happen after the model gets work, but does not get paid.

Model contracts typically include a disclaimer preventing full liability for an agency with respect to payment. If the client does not pay the agency, the contract says, the agency is not obligated to pay the model. The agency is only obligated to pay a model when they have been paid by the client. An agency is responsible to screen potential clients and to ask and even pressure a client to pay, but they do not have absolute responsibility, and cannot force a client to pay.

Clients of models, similar to other industries, typically agree to pay the agency within 30 days. It can take longer, but usually not more than 60 days. A model has a right to ask her agent the agreed deadline. If the deadline has come and gone and the agency is suspected of having already received the money from the client, but is holding out, it may be necessary for an unpaid model to determine through independent investigation who is at fault, i.e., if a client actually paid the agency. Usually the agent deals directly with the client, not the model, but an exception can be made if the delay is excessive.

An agency which does not pay you your earnings after receiving the money from the client for whom you worked has stolen your money. The agency only has a right to the 20% commission or whatever amount the contract allows. Regardless, you should not have to beg an agency to get the money you earned. It is awful to work hard and not get paid. Many models do not receive regular work, therefore it is even more unfair for them not to be paid in good time. It is extremely disrespectful not to pay someone what they earned. A reputable modeling agency will pay its models, pay them on time, and pay them a short time after the client pays. There is a good excuse for the agency not to have paid the model if the client has not paid, but there is no good excuse for the agent not paying quickly after the client has paid.

In fact in some states it is more than an ethical obligation; it is a legal requirement. Models must be paid within a set period of time or the agency can lose its license. Check your state's law.

In Texas, for example, the talent agency has less than two weeks to pay up: "Unless a written contract to the contrary exists, all monies received on behalf of an artist must be disbursed to that artist no later than 10 banking days after receipt by the talent agency" [§78.72 (b)].

The Texas Department of Licensing and Regulation, "the primary enforcement authority for complaints against talent agents," said: "The most common complaints involve unlicensed activity and failure to pay clients. The Department investigates and resolves complaints, conducts hearings, and may impose administrative penalties and sanctions if a violation has occurred." Their FAQ addresses the issue of payment to models for their work and what they should do when they are not paid:

What if my agent won't turn over fees I have earned?
You may file a complaint with the Department, and an investigation will be
conducted. All licensed Talent Agencies are to maintain a surety bond with
the Department to reimburse consumers in certain circumstances.
 
How can I get paid if the agency won't pay me?
You may have a private cause of action in civil court and you can file a
complaint with the Department and the Office of the Attorney General.
 
"Talent Agencies Frequently Asked Questions," TDLR, ¶¶4-5. http://www.license.state.tx.us/talent/talfaq.htm#e4 [Sept. 6, 2004].

When the Attorney General of Texas took action on behalf of the TDLR against a talent scam called Marquee Talent after the agency did not respond to their administrative actions, one of the complaints was the talent agency failed to pay their talent. The penalty for the first incident of their payment failure was $1,000.

The Commission ordered administrative penalties in the amount of $1,000 on August 13, 2001, against Defendants Marquee Talent, Inc., and Wendy Gallatin, for failing to remit money owed to an artist after receipt of payment from the client employer. Defendants Marquee Talent, Inc., Wendy Gallatin, and Tommy Gallatin arranged for an artist to perform in a television commercial. The artist performed in September 2000, and the client employer paid Defendants Marquee Talent, Inc., Wendy Gallatin, and Tommy Gallatin for the artist's services in the amount of $425 shortly afterward. These monies were not paid to the artist. . . .
 
Defendants fail to pay artists for work performed even though the client employer has paid Defendants for the artists' work. Defendants arrange work for artists in photo shoots, commercials, and films for client employers. Artists have worked for these client employers as arranged. Defendants Marquee Talent, Inc., Wendy Gallatin, and Tommy Gallatin do not pay the artists the full amount owed to artists or do not pay artists at all for services performed although several client employers stated that payment had been made to Defendants. Defendants are required by §78.72(b) of the Talent Agency Registration Rules to distribute monies received on behalf of artists within 10 banking days.
 
Defendants Marquee Talent, Inc., Wendy Gallatin, and Tommy Gallatin misrepresent to artists that client employers have not paid for the artists' work. When the artists have contacted the client employer directly, they are informed that a check already was sent to Defendants on behalf of the artists and that these checks were made out to the artists and were shown to be endorsed and cashed by the Defendants. The artists state that they did not endorse these checks, authorize the endorsement of these checks, or receive any of the monies from these checks. Defendants were sent these checks and the checks were cashed with no payment to the artists from Defendants.
 
Texas v. Marquee Talent, Inc., Wendy Gallatin, and Tommy Gallatin, ¶¶18, 20-22.

Options

There are other options besides filing complaints with the talent agency licensing department, the Attorney General, in small claims court, or at the Better Business Bureau. Payment failure is actually a serious issue--serious enough to call the police. The police deal with theft, which is exactly what happens when a talent agency unlawfully keeps your money.

An I-Team investigation of a talent agency in New Jersey found:

Dozens of parents are accusing a Monmouth-based child star management agency of cheating kids out of their earnings. Parents say "D-M Kids" helped place their children in commercials, movies and magazines. While adults are not complaining about the jobs, they are raising questions about D-M Kids' billing practices. Parents say D-M Kids owner Donna Kalakowski often kept more than her 15 percent share of the earnings, and sometimes completely failed to pay her clients.

How did the parents deal with the situation? Did they file complaints with the Attorney General, the BBB, the Regulated Business Section of Consumer Affairs in New Jersey? "Parents looking to recoup some of their children's earnings have filed police reports against [Donna] Kalakowski and D-M Kids."

"Monmouth-based child star management agency," I-Team Investigates, News 12 New Jersey, Mar. 18, 2004. http://www.news12.com/NJ/topstories/article?id=103512 [Sept. 6, 2004].

After the I-Team news report was broadcast, more parents came forward and followed them to the police: "Since the I-Team first investigated D-M Kids, seven families filed reports with Shrewsbury police, claiming agency owner Donna Kalakowski either kept more than her 15 percent share of the earnings, or that she completely failed to pay her clients."

Police want everyone who has been the victim of a thief to call them: "Police want to hear from anyone who thinks "D-M Kids," "Special Artists," or Donna Kalakowski owes them money. They are asked to call Shrewsbury police at (732) 741-2500."

"Child star management and modeling agency," I-Team Investigates, News 12 New Jersey, Mar. 31, 2004. http://www.news12.com/NJ/topstories/article?id=104592 [Sept. 6, 2004].

A tell-tale sign of theft is when the agency makes one excuse after another, lie after lie, everything from "the client has not paid" to "the check is in the mail." Several clients reported they were not paid by their talent agency, CMT Talent Agency (formerly Colours, "Colors Modeling and Talent," also known as Crew Models):

Another client, who also wishes to remain anonymous, contacted Back Stage West with the same situation. She says she is still waiting for $495 from a job she did on Sept. 14, 2003. She claims the woman she worked for said the agent was paid within a week. But she says she has seen no sign of her check, despite repeated calls to her agent. "I'd keep calling and the phone would just keep ringing or the mailbox was full," she said. "I saw him once and he said, 'Come in next week. Your check's here.' And I'd come in and he'd say, 'Oh, my secretary is not here. I don't know where it's at.' Then one time he said he'd already mailed it. I left continuous messages. He called me back at one point--Dec. 13th--and said, 'We're closing the office for the holidays,' so he said, 'You won't be receiving your money.' It was excuse after excuse." She said she feels particularly bad because she encouraged a friend to work on the same job. "She did it and didn't get paid, and there was another girl who was a client with him who didn't get paid, and her friend has got a commercial running and he's not getting paid either."
 
Laura Weinert, "Agency Stiffing Clients?" Back Stage, Apr. 14, 2004. http://www.backstage.com/backstage/content_id=1000486725 [Sept. 6, 2004].

(See also internet complaints against Colors Modeling and Talent: http://www.2nd-tier.com/showfax_bbs/index.cgi?noframes;read=4044; http://www.2nd-tier.com/showfax_bbs/index.cgi?noframes;read=4049)

The following complaints have been received by email. (The complaint below was not received from a yahoo or hotmail account.)

To Whom It May Concern:

I feel this information should be sent to the public. . .

For several years I have been with Alpha Model Group f/k/a On Track Modeling. I was to be represented for Commercial Print and promised work. What a joke. I get promotional work.

I have done print work and acting for other agencies, so I know it's not my "look" that OTM / Alpha Model Group can't market.

I have been a great "promotional model" and worked many events and done them well. I have clients request me and a booker refuse to use me. I am owed money from assignments I have worked months ago and can't seem to be paid for them.

I have one assignment I have been informed I will never be paid for because "the client didn't pay OTM." We are not talking chump change for this either! Not to mention I was asked to work for another company making more money for less hours worked but I had already committed to OTM and signed the booking agreement. Therefore, I did what was right and completed the agreed job.

I lost money on that particular assignment twice! After many weeks and research on my own, I called the owner of the company that hired me through OTM / Alpha Model Group and was told he in fact paid my salary in full and within 10 days of the completion of my contract. OTM said they never received the payment so I couldn't and wouldn't be paid.

Here is another good one they love to pull. . . they will book you and if you should need to cancel at the last minute you are fined and not booked again. If they call you at the last minute or send you home from an over booked job, you get nothing. That has happened to me on more than one occasion. Especially if they can find a "talent" to work for a cheaper rate than you!

It's pretty sad when you have to wait four to six months for your paycheck or work over 40 hours in a week and not get paid at all. That my friend in my book is fraud! They should be shut down and be forced to pay all models in full plus interest for any paycheck that isn't processed and paid out within 30 days from completion of the job.

If you don't pay your bills on time, you pay a late fee, if you don't pay for months, your utilities are turned off, thrown out, etc. What makes OTM think they can pay if and when the hell they want to?

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To Whom It May Concern:

I have signed with OTM and have been with them since 2001. I've done a total of five jobs with them, all promotional.

The first job was for $14/hr, signing up people for MBNA credit cards, but I have not seen one red cent from these people!

I have called and emailed, but when I expressed my concerns of payment, they said: "This could close doors for you."

I fail to see the open doors anyway at this rate!!!

I was also told by the person in accounting to whom I spoke that her son works for an agency, and sometimes it takes a year to get paid.

Would you work a job that didn't pay for a year?

I wouldn't think so.

To top it off, you can only access the accounting department by email. I was not called by anyone until they became afraid I would "bad-mouth" the agency.

Is there anything I can do?

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Easy Background Check has also heard that there is a makeup artist based out of Atlanta who worked for Alpha Model Group but has not been paid. At last report, a representative of AMG refused to hand over the money owed.

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Model not paid for modeling jobs sues agency in small claims court

I have been modeling with [...] for about five months. Since then, they owe me approximately $1,500. I have not received one check from them yet, and obviously have stopped doing business with them, which I should have done much sooner.

I have consistently and persistently asked for my payment, saying I was going to sue them. They have consistently made excuses: "the client hasn't paid us yet"; "we'll have a check for you next week"; etc.

Finally, after much persistence, I received a check for $960 (they claimed the client hadn't sent them a check yet).

I accepted the check, but the check bounced!

I went to small claims court today and filed with them for a court date. I have heard similar claims from other models about this agency and hope that other models will not fall in the trap of doing business with this improper and fraudulent business.

[agency name withheld pending similar complaints]

(Note: Small claims court is the venue of choice for many unpaid wages disputes.
See
"You can sue for unpaid wages if you weren't paid for work you did.")

Rogue Corby Model Agency in Court for Witholding Clients' Money

"Ruby Mear Models Limited, an employment agency based in Corby, admitted today that it had failed to pass on money, totalling £320, owed to two models for a photographic assignment, which the agency had found for them. Corby Magistrates' Court sentenced the company to £800 (plus £3,099 costs), following investigations by the DTI's Employment Agency Standards (EAS) Inspectorate. The DTI brought the action against Ruby Mear Models Limited under the provisions of the conduct regulations associated with the Employment Agencies Act 1973, which are designed to protect work-seekers, including photographic models, who use the services of employment agencies to find work. The case came to light following a complaint to the DTI's Employment Agency Standards telephone action line on 0845 955 5105. The company has paid the money owed to the workers involved in this case. Gerry Sutcliffe, DTI Employment Relations Minister, said: "This serves as a clear example to all rogue employment agents that wrongly and wilfully withhold money owed to workers using their services. The DTI will continue to take whatever action is necessary, including prosecution, to protect workers against these illegal practices." The agency is appealing against the decision, claiming that the monies were witheld as a result of the models owing sums of money to the company."

"Rogue Corby Model Agency in Court for Witholding Clients' Money," northamptonshire.co.uk, July 21, 2003. (http://212.67.202.137/~northamptonshire/archives/00000263.htm)

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Discussing the issue of models who are not paid for work they did, one New York agent said the models who are successful in this regard are the ones who constantly bother their agents. In the end, however, if your agency is chronically late, you may want to get another agency which won't waste your time.

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See also: "When I did book a job. . . they took seven months to pay me. They paid another actor who worked the same job TWO WEEKS before I received my check (violation [of] statute 468.406)." http://www.theatreheaven.com/agentsflorida.html [Sept. 6, 2004].

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