STATE OF CALIFORNIA

DEPARTMENT OF INDUSTRIAL RELATIONS

2 DIVISION OF LABOR STANDARDS ENFORCEMENT
David L. Gurley, Esq. (SBN 194298)
3 300 Oceangate, Suite 850
Long Beach, CA 90802
4 Telephone No.: (562) 590-5461
5 Attorney for the Labor Commissioner
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BEFORE THE LABOR COMMISSIONER
STA IE OF CALIFORNIA
11 STEVE LINDSEY, An Individual dba ) CASE NO.: TAC 28811
12 ORANGE MUSIC (EMI), and BLOTTER, DETERMINATION OF
BLOTTER MUSIC (AS CAP) and dba LIQUID l
INC., A California Corporation, CONTROVERSY
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Petitioners,
vs.
16 LISA MARIE, An Individual and MARIE
MUSIC GROUP, LLC fka MOIRIMARIE
17 ENTERTAINMENT, A California Limited
Liability Company and DOES 1-20, Inclusive.
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Respondents.
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21 The above-captioned matter, a Petition to Detennine Controversy under Labor
22 Code 1700.44, came on regularly for hearing in Long Beach, California, before the
23 undersigned attorney for the Labor Commissioner assigned to hear this case. Petitioner
24 STEVE LINDSEY, an Individual dba BLOTTER MUSIC (AS CAP) and dba LIQUID
25 ORANGE MUSIC (BMI), and BLOTTER, INC., A California Corporation, (hereinafter,
26 referred to as "Lindsey" or "Petitioner") appeared through their attorney Steven B.
27 Stiglitz of Freedman & Taitelman, LLP. Respondents LISA MARIE AND MARIE
28 MUSIC GROUP, LLC, f/k/a MOIRMARIE LLC ("MMG")
DETERMINATION OF CONTROVERSY
1 (hereinafter, "MMG" or "Respondent"), appeared through counsel James S. Cooper, of
2 Levinson Arshonsky & Kurtz, LLP.
3 Petitioner was represented by Respondent as his personal manager. The Petition
4 seeks to void the Personal Management Agreement, in whole, or, alternatively, in part, on
5 the grounds MMG's services under that agreement violated the Talent Agencies Act,
6 California Labor Code Section 1700, et seq. (the "Act"), in that the services constituted
7 the unlawful procurement of employment without a license to conduct business as a talent
8 agency. Based on the evidence presented at this hearing and on the other papers on file in
9 this matter, the Labor Commissioner hereby adopts the following decision.
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12 1.
I. FINDINGS OF FACT
Lindsey is an artist and a record producer in the music industry whose skills
13 include record production, music composition, song writing, and musical performance.
14 2. In or about 1996, Lindsey wanted to continue working as a record producer,
15 but sought to work on more contemporary sounding albums believing this would expand
16 his opportunities. To pursue that goal, Lindsey retained MMG to act as his personal
17 management firm, with Bennett Kaufman ("Kaufman") to act as his primary manager.
18 Lindsey and Kaufman had known each other in a professional context for many years,
19 and Lindsey trusted Kaufman to help him obtain new opportunities as a producer of
20 musical content.
21 3. On April 23, 1996, Lindsey and MMG entered into an initial
22 ersonal management agreement (the "Initial Personal Management Agreement"). Under
23 the Initial Personal Management Agreement, MMG contracted to perform services as
24 Lindsey's personal manager in return for a commission of 15% of Lindsey's gross income
25 in connection with Lindsey's work as a record producer, arranger and songwriter.
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27 4.
A. The Guster Deal
After Lindsey and MMG entered into the Initial Personal Management
28 Agreement, Kaufman began searching for opportunities for Lindsey. Kaufman
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DETERMINATION OF CONTROVERSY
successfully found Lindsey work as a songwriter and arranger as well as a record
2 roducer. The first significant opportunity Kaufman arranged for Lindsey was securing a
3 deal for Lindsey to produce a record for the band Guster (hereinafter the "Guster Deal").
4 As a result of Kaufman's introduction, Lindsey ultimately produced Guster's album and
5 wrote one of the songs on that album.
6 5. A written agreement between Lindsey and Guster Recordings, Inc. (the
7 "Guster Agreement") memorializes that relationship. Notably, a review of the Guster
8 Agreement confirms that the only parties to the Guster Deal were Guster, the band, and
9 Lindsey, the producer. The record company, Sire Records (hereinafter company or label)
10 who distributed the album and provided royalty statements of the record's earnings via
11 record sales, was neither a party to the Guster Deal nor a signatory to the contract. The
12 royalties or earnings promised to Lindsey under the Guster Deal were calculated "on the
13 same basis as [Guster's] royalties are calculated, determined, adjusted and paid pursuant
14 to Guster's agreement with Company (the 'Recording Agreement')". The Recording
15 Agreement was the recording contract between Guster and Sire. In short, the Guster Deal
16 was a relationship for Lindsey to produce Guster's record wherein Lindsey's earnings
17 were paid as a direct percentage of Guster's earnings under Guster's recording contract
18 with Sire records.
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B. The Windswept Agreement
Soon after securing the Guster Deal, Kaufman suggested Lindsey
22 explore the possibility of becoming a music publisher. Lindsey had no experience as a
23 music publisher, but Kaufman correctly ascertained that Lindsey had all of the skills
24 necessary to succeed in the field of publishing.
25 7. In furtherance of helping Lindsey obtain work as a music publisher,
26 Kaufman introduced Lindsey to Windswept Pacific Entertainment Company (hereinafter
27 Windswept). As a result of that introduction, Lindsey obtained work as a co-publisher
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DETERMINATION OF CONTROVERSY
with Windswept. The terms of the agreement are contained in the "Windswept
2 Agreement".
3 8. Section 6 of the Windswept Agreement, which is entitled "Co-Publisher's
4 Obligations," contains subsection a. that provides: "As between Windswept and
5 [Lindsey], [Lindsey] shall be solely responsible for and shall use its best reasonable
6 efforts to locate publishing opportunities for the mutual benefit of [Lindsey] and
7 Windswept." Section 7.a of the Windswept Agreement provides for certain business
8 terms of the deal. Subsection (i) provides for Windswept to pay Lindsey a salary in each
9 contract year (which is recoupable from royalties earned through musical compositions, if
10 any).
11 9. Pursuant to the Windswept Agreement, Lindsey worked virtually
12 exclusively for Windswept for a number of years. Lindsey received earnings from the
13 Windswept Agreement and paid commissions to Respondent during those years.
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15 c. The Amendment to the Initial Personal Management Agreement
16 10. On April 2, 2003, Lindsey and MMG entered into an amendment to the
17 Initial Personal Management Agreement. The Initial Personal Management Agreement
18 and this amendment together constitute the entirety of the Personal Management
19 Agreement between the parties. The amendment provides, among other things, "[MMG]
20 shall also continue to be entitled to commission [for Lindsey's] current publishing Joint
21 Venture with Windswept Music Publishing .... " MMG had been commissioning
22 Lindsey's income from the Windswept Agreement, and MMG continued to commission
23 such income thereafter.
24 D. The Botti Deal
25 11. Shortly after Lindsey and MMG entered into the amendment to the Initial
26 Personal Management Agreement, Kaufman again successfully sold Lindsey as a
27 songwriter as well as a record producer on an album for trumpeter and composer Chris
28 Botti. As a result of Kaufman's introduction, Lindsey ultimately produce Botti's album
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DETERMINATION OF CONTROVERSY
1 and co-wrote one of the songs on that album. A written agreement between Lindsey and
2 Reverb, Inc. (The "Botti Agreement") memorializes that relationship. Notably, a review
3 of the Botti Agreement confirms that the parties to the Botti Deal were Botti, the artist,
4 and Lindsey, the producer. The record company, Sony Music Entertainment (company
5 or label), who distributed the album and provided royalty statements for the record, was
6 not a party to t ~ Botti Deal. The royalties or earnings promised to Lindsey under the
7 Botti Deal were "computed in the same manner as [Botti's] royalties under [Botti's]
8 Agreement [with Sony.]" Again, like with the Guster Deal, the Recording Agreement
9 was the recording contract between Botti and Sony. In short, the Botti Deal was a
10 ersonal services contract for Lindsey to produce Botti's record wherein Lindsey's
11 earnings were paid as a direct percentage of Botti's earnings under Botti's recording
12 contract with Sony, the label.
13 E. The Termination of the Personal Management Agreement
14 12. On March 4,2005, Lindsey terminated the Personal Management
15 Agreement in part because qfKaufman's departure from the firm. Sometime in 2005,
16 Lindsey sold his interest in the Windswept deal back to Windswept in four increments
17 aid to Lindsey on July 1,2005, February 16,2006, January 16,2007, and July 28, 2008.
18 13. Lindsey stopped accounting for the royalties he obtained over the years
19 from the Windswept Co-Acquisition Agreement and at some point disclosed to
20 Respondent the sale of his Windswept interest back to Windswept. MMG requested the
21 unpaid commissions on the Windswept Agreement and when payment of those
22 commissions were refused, the Respondent filed a claim in Los Angles Superior Court for
23 breach of contract. Lindsey now claims he is not required to pay any monies to
24 Respondent arguing the securing of the Windswept, Guster and Botti agreements by
25 Respondent violated the Talent Agencies Act.
26 III
27 III
28 III
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DETERMINA TION OF CONTROVERSY
II. ARGUMENT
2 The two issues to be determined are as follows:
3 a. Has the Respondent acted as an unlicensed talent agency by securing a
4 ublishing agreement ("The Windswept Deal") for the Petitioner?
5 b. Does the "Recording Contracts" exemption from the Talent Agencies Act at
6 Labor Code 1700.4(a) apply to the Guster or Botti Deals?
7 14. The primary issue is whether based on the evidence presented at this
8 hearing, did the respondent operate as a "talent agency" within the meaning of Labor
9 Code 1700.4(a). Labor Code 1700.4(a) defines "talent agency" as:
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"a person or corporation who engages in the occupation of procuring,
offering, promismg, or attempting to procure employment or engagements
for an artIst or artists."
15. Petitioner is an "artist" within the meaning of Labor Code 1700.4(b).
Moreover, Labor Code 1700.5 provides that "no person shall engage in or carry on the
occupation of a talent agency without first procuring a license therefor from the Labor
Commissioner." It was stipulated Respondent has never held a talent agency license.
A. The Co-Acquisition Agreement with Windswept Publishing
16. The Co-Acquisition Agreement or co-publishing agreement in question was
entered into by and between Steve Lindsey and Windswept, on or about July 21, 1998.
By its express terms, the purpose of the Co-Acquisition Agreement, as stated in Paragraph
4:
Shall be to engage in the worldwide acquisition and exploitation of
ownership rights (as contrasted to administrative rights) in copyrights of
musical compositions. (Windswept Agreement, 4.)
17. Specifically, Lindsey was a "talent finder" who was to work with
Windswept to locate musicians whose songs were deemed to have value and induce them
into signing over licensing of their publishing rights to himself and Windswept for an
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DETERMINATION OF CONTROVERSY
1 agreed to sale price. The parties were owners of third, non-party songwriters' publishing
2 licensing rights whose ownership and profits they shared on a 50/50 basis. The
3 Windswept Co-Acquisition Agreement involves publishing, and relates to third parties
4 who are selling intangible property rights (royalties) to their musical compositions. Thus,
5 on its face this Co-Acquisition Agreement does not constitute the procurement of
6 employment or an engagement for an artist. Instead, it is simply a co-acquisition
7 agreement which represents a partnership or co-venture between Lindsey and Windswept
8 to purchase the property previously belonging to others for ownership and profit. In
9 short, these were simply investments and are outside the jurisdiction of the Talent
10 Agencies Act.
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B.
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The Guster and Botti Agreements
The Petitioner entered into a series of recording producer agreements with
14 various record companies, including Sony Records, EMI Records, as well as directly with
15 some of the recording artists such as Guster and Botti. All of these agreements were to
16 secure Lindsey's services for the production of master recordings for artists. For
17 example, the Botti Agreement required Lindsey to "furnish to us your exclusive services
18 as the producer of up to 13 master recordings." Similarly, the agreement with Guster
19 required Lindsey to provide services as a record producer on certain master recordings.
20 19. Respondent argues the critical element of all these contracts was that they
21 related exclusively to the production of recordings as their end product, whether those
22 recordings were referred to as "master tapes," a film soundtrack recording, or other
23 reproduction medium. And Respondent moreover argues, the royalties paid to Mr.
24 Lindsey for these projects were royalties arising out of the sale and distribution of
25 recordings from the record companies themselves.
26 20. Thus, Respondent concludes that regardless of the services provided by Mr.
27 Lindsey, whether as a "producer," "mixer," or writer or co-writer of any songs, all these
28 activities were exclusively performed in connection with the production of recordings and
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DETERMINA TION OF CONTROVERSY
all royalties were paid based upon the production or the sales of the recordings.
2 Consequently, Respondent contends all of Lindsey's agreements as a producer, whether
3 made directly with a record company or directly with an artist, as with the Botti and
4 Guster agreements, fall within the purview of the Talent Agencies's recording contract
5 exemption. We disagree.
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C. The Recording Contract Exemption
Labor Code 1700A(a) provides:
'Talent Agency' means a person or corporation who engages in the
occupation of procuring, offering, promising, or attempting to
procure employment or for an artist or artists, except
that the activities of procurmg, or promising to procure
recording contracts for an artist or artist shall not of itself
subject a person or corporation to regulation and licensing
under this chapter. Talent agencies may, in addition, counselor
direct artists in the development of their professional careers.
[emphasis added]
21. The recording contract procurement exception was first placed into the
15 Labor Code in 1982 and allowed for a commission known as the California Entertainment
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Commission (hereinafter the Commission) to study the efficacy of the exception. The
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Commission spent two years studying the issue and whether any changes should be made
to it. (Wachs v. Curry (1993) 13 Cal.AppAth 616,625.) In affirming the need for the
recording contract procurement exception, the commission provided its rationale for its
recommendation keeping it in place:
A recording contract is an employment contract of a different nature from
those in common usage in the industry involving personal services. The
purpose of the contract is to produce a permanent and re-playable showcase
of the talents of the artist. In the recording industry, many successful artists
retain personal managers to act as their intermediaries, and negotiations for
recordmg contracts are commonly conducted by a personal manager, not a
talent agency ... they may act as their intermediaries, and negotiations for
recording contracts are commonly conducted by a personal manager, not a
talent agent .. , they may act as a conduit between the artist and the
recording company, offering suggestions about the use of the artist or
the level of effort which the recording company is expending on behalf
of the artist .... (ld. at p.625-626) [empahsis added].
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DETERMINA TION OF CONTROVERSY
22. Why is this important? Because based on limited legislative history it
2 appears the intent of the recording contract exemption was to exempt the act of
3 negotiating recording contracts between artists and the recording companies. Here the
4 Guster and Botti agreements are agreements made directly between a producer and the
5 artist. In short, the record company is not a party to these contracts. These contracts are
6 essentially contracts between two artists for services. And consequently, we choose not
7 to expand the purview ofthe Act's exemption to encompass contracts for personal
8 services between artists and producer/artists. The Act's recording contract exemption
9 was intended to exempt negotiations between a manager and record company on behalf of
10 artists. And we do not see, as the respondent fears, that this holding will "send
11 shockwaves through the industry and disturb long-held, highly developed rules and
12 territory between managers and agents, not to mention a flurry of new claims by artists or
13 non-artists involved in a recording contract." We find no evidence the exemption was
14 intended to exempt managers negotiating contracts between artists and producers that do
15 not contemplate involvement of record companies or labels other than providing royalty
16 statements. This would expand the exemption outside the intent of the legislature and the
17 findings of the Commission who studied the Act for more than two years.
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23. The respondent's argument concludes that if the earnings paid to the
19 roducer stem from advances to be offset by royalties, this fact alone determines whether
20 he managers actions on behalf of an artist falls subject to the recording contract
21 exemption. As stated by the Respondent at the hearing, the Guster contract will
22 essentially be paid by the record company via royalties even though it is between Guster
23 Recordings, a separate entity.
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24. Finally, respondent argues that Pursuant to Civil Code section 2500,
25 Lindsey is a royalty recipient of a recording contract, meaning he is "a party to a contract
26 for the furnishing of services in the production of sound recordings .... " Again, we
27 disagree. A review of all past Labor Commissioner determinations and relevant case law
28 does not lend support to the respondent's argument that if creative services are utilized in
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support of a master recording and the earnings are paid via a percentage of the artists
2 royalties from a record company, the recording contract exemption must apply!.
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D. Neither The Guster Employment Nor The Botti Employment Is Within
The Recording Contracts Exemption To The Act
25. California Labor Code section 1700A(b) exempts the activities of
6 "procuring ... recording contracts for an artist" ... from the definition of a "talent
7 agency." "The 'recording contract exemption' does not, however, include contracts
8 between a producer on the one hand and artist on the other. In Chinn v. Tobin (1997)
9 TAC No. 17-96 at page 6, fn. 1, we concluded,
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The Talent Agencies Act has long been construed by the
courts as a remedial statute intended for the protection of
artists. 'rT] he clear object of the Act is to prevent improper
persons from being [talent agents] and to regulate such
activity for the protection of the public .... ' Buchwald v.
Superior Court (1967) 254 Cal.App.2d 347,351. See also
Waisbren v. Peppercorn Productions (1995) 41 Cal.AppAth
246. As with all remedial legislation, exemptions must be
narrowly construed and cannot be extended beyond their
express provision. To do otherwise would defeat the remedial
purpose of the legislation.
26. As a result, we are hesitant to expand the exemption for recording contracts
to include agreements directly between artists and producers absent an express inclusion
of the record company and do not have authority before us that would lead us to believe
the legislature intended such an expansive interpretation.
27. Labor Code 1700.5 requires a talent agent to procure a license from the
Labor Commissioner. Since the clear object of the Act is to prevent improper persons
! The Respondent relies heavily on the hearing officer's Order on Respondent's Motion to
24 Dismiss granting the motion based on the fact that the negotiation of contracts between studio
mixing services and record companies fell within the recording contracts exemption. (See Chris
25 and Thomas Lord Alge v. MoiJ'IMarie Entertainment LLC, et al., T AC 45-05). This Order is
26 distinguished in that the hearing officer expressly held the exemption was applicable because
"the contracts which Petitioners allege were procured by Respondent without a talent agency
27 license are actual recording contracts between Petitioners and various recording companies."
Including Maverick Recording Company and Warner Bros Records, Inc. (See Order on
28 Respondent's Motion to Dismiss TAC 45-04 pg. 5 lines 10-12)
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1 from becoming [talent agents] and to regulate such activity for the protection of the
2 public, a contract between an unlicensed artists' manager and an artist is void. Buchwald
3 v. Superior Court, supra, 254 Cal.App.2d 347. Consequently, MMG procured
4 engagements for an artist in the Guster and Botti deals and as a result the management
5 agreement between MMG and Lindsey is void ab initio and is unenforceable for all
6 urposes. Waisbren v. Peppercorn Inc., supra, 41 Cal.AppAth 246; Buchwald v. Superior
7 Court, supra, 254 Cal.App.2d 347.
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9 E. Severability
10 28. In accord with Marathon Entertainment v. Blasi (2008) 42 Ca1.4th 974,
11 MMG urges us to apply the doctrine of severability if we find MMG violated the Act. In
12 arathon, the court recognized the Labor Commissioner may invalidate an entire
13 contract when the Act is violated. The court also left it to the discretion of the Labor
14 Commissioner to apply the doctrine of severability to preserve and enforce the lawful
15 ortions of the parties' contract where the facts so warrant. As the Supreme Court
16 explained in Marathon:
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Courts are to look to the various purposes of the contract.
If the central purpose of the contract is tainted with
illegality, then the contract as a whole cannot be
enforced. If the illegality is collateral to the main
purpose of the contract, and the illegal provision can be
extirpated from the contract by means of severance or
restriction, then such severance and restriction are
appropriate. [Citations omitted]. Marathon, supra at p.
996.
25 29. MMG urges us to simply sever those engagements we find to have been
26 rocured in violation of the Act and preserve the contractual relationship between the
27 arties. As explained in this decision, we find MMG violated the Act on 2 of the 3
28 contracts identified in this case. Consequently, we find MMG engaged in substantial
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DETERMINATION OF CONTROVERSY
procurement activities that are inseparable from the lawful managerial services provided
2 to rvIMG. Severing the two illegal engagements/contracts from the parties' contractual
3 relationship would only serve to condone such unlawful behavior and expand the
4 recording contract exemption beyond what the legislature envisioned.
5 30. Accordingly, we exercise our discretion under Marathon, supra, in voiding
6 the Personal Management Agreement and conclude that severance is not appropriate
7 under these facts.
8 III. ORDER
9 For the reasons set forth above, IT IS HEREBY ORDERED that:
10 The Amendment to the Initial Personal Management Agreement between
11 LINDSEY and MMG is invalid and unenforceable under the Talent Agencies Act and is
12 void ab initio; MMG has no rights or entitlements to any monies arising from such
13 engagements.
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f'/s-/;(
16 Dated:
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17 David L. Gurley
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Attorney for the Labor Commissioner
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20 ADOPTED AS THE DETERMINATION OF THE LABOR COMMISSIONER:
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23 Dated: __ _
Julie A. Su
24 State Labor Commissioner
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1 procurement activities that are from the lawful managerial services provided
2 to lvIMG. Severing the two illegal engagements/contracts from the parties' contractual
3 relationship would only serve to condone such unlawful behavior and expand the
4 recording contract exemption beyond what the legislature envisioned.
5 30. ' Accordingly, we exercise our discretion under Marathon, supra, in voiding
6 the Personal Management Agreement and conclude severance is not appropriate under
7 these facts.
8 ill. ORDER
9 For the reasons set forth above, IT IS HEREBY ORDERED that:
10 The AIDendment to the Initial Personal Management Agreement between
11 LINDSEY and l\1MG is invalid and unenforceable under the Talent Agencies Act and is
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12 void ab initio; lYfMG has no rights or entitlements to any monies arising from such
13 engagements.
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16 Dated:
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David 1. Gurley
Attorney for the Labor Commissioner
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20 ADOPTED AS THE DETERMINATION OF THE LABOR COMMISSIONER:
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23 Dated: _7_'_0_, 1 Y
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State Labor C;ommissi oner
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DETERMINATION OF CONTROVERSY
PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I, Tina Provencio, declare and state as follows:
4 I am employed in the State of California, County of Los Angeles. I am over the age of
eighteen years and not a party to the within action; my business address is: MOLINA CENTER -
5 300 Oceangate, Suite 850, Long Beach, CA 90802.
6 On August 6, 2014, I served the foregoing document described as: DETERMINATION OF
CONTROVERSY, on all interested parties in this action by placing a true copy thereof enclosed
7 in a sealed envelope addressed as follows:
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James S. Cooper, Esq.
Y oonis J. Han, Esq.
LEVINSON, ARSHONSKY & KURTZ, LLP
15303 Ventura Boulevard, Suite 1650
Sherman Oaks, CA 91403
Attorneys for Respondents,
LISA MARIE and MARIE MUSIC
GROUP,LLC
[email protected]
[email protected]
Bryan J. Freeman, Esq.
Steven B. Stiglitz, Esq.
FREEDMAN & TAITELMAN, LLP
190 1 Avenue of the Stars, Suite 500
Los Angeles, CA 90067
Attorneys for Petitioners,
STEVE LINDSEY dba BLOTTER
MUSIC and dba LIQUID ORANGE
MUSIC and BLOTTER, INC.
[email protected]
15 --'x""(BY CERTIFIED MAIL) I caused such envelope to be deposited in the United States
mail at Long Beach, California. The envelope was mailed with postage thereon fully prepaid. I am
16 "readily familiar" with the firm's practice of collection and processing correspondence for mailing.
Under the practice it would be deposited with the U.S. postal service on that same day in the ordinary
1 7 course of business. I am aware that on motion of the party served, service is presumed invalid if
postal cancellation date or postage meter date is more than one day after date of deposit for mailing
18 in affidavit.
19 (BY EMAIL SERVICE) I caused such document to be delivered electronically via
email to the email address of the addressees set forth above.
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I declare under penalty of perjury under the laws of the State of California that the above is
21 true and correct.
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Executed this 6
th
day of August, 2014 at Long Beach, California.
T';LL
ma ProvencIO
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