November 13th, 2020 by David Kemp

Most of us have dreamed of being part of a movie production. Some want to be a star, some want to be part of the post-production effort and some just want to be an extra. Is it easy be get into a movie production in Kelowna? Are there avenues to work in this field in the Okanagan?

Associate David Kemp talks with Phil Johnson on AM 1150 about getting into film in the Okanagan and what some talent agents try to get away with illegally.

Listen to the radio interview below.

FH&P Lawyers · FH&P Lawyers Law Talk - Film Industry


Phil Johnson: David Kemp joins us to talk about legal issues that may be affecting some of you, some of you not. David Kemp good morning to you.

David Kemp: Good morning Phil, how’s it going?

Phil Johnson: Good. Open the door for me, where are we going?

David Kemp: You bet! As you know I practice what I like to call happy law being that all of my clients come to me for happy reasons. They are building things, they are selling things, they are buying things. So, the latest happy law topic that we are dealing with this week is talent agencies and the film productions that are happening around town.

Phil Johnson: Well isn't that interesting, you know for a while there everybody was bemoaning the fact that there were all these highly skilled individuals settling back in the Okanagan with nowhere to go because the film industry effectively shut down and then all of a sudden it's back in a big way and movies are now coming back to life after being shot. So why did you pick this, why are we going here?

David Kemp: Its time that we talk about something fun. The world has been so focused on a lot of negative topics between the pandemic and the US election and things like that. I think it's time to talk about something fun and for me film is super fun.

Phil Johnson: Who doesn’t like the movie industry? I think we all, somewhere in the back of our brains think if only I had been discovered down there at the Starbucks or if only I had pulled into the gas station at just the right time maybe they would have discovered me.

David Kemp: And here's your chance, I mean this is the perfect day for it too. We’ve got the snow falling outside and it just reminds me of those Hallmark Christmas movies and that's actually a big chunk of what is being filmed in Kelowna. We’ve got Hallmark movies, Lifetime movies, a lot of what they call “movies of the week” and it's funny that you bring that up that “I wish I'd been discovered thing” because you can Phil, you can be discovered and so can anyone else listening here. One of the main struggles that the film industry in the Okanagan has faced is personnel, so we have a lot of talented people in the Okanagan but because there aren't a lot of steady productions they go down to the coast to go work. Putting a production together which can sometimes take up to 300 hundred skilled people is actually very difficult especially in the summertime because hotels are through the roof. Now we’ve got tons of productions coming out and now we have tons of work.

Phil Johnson: Okay, two things, I can remember when it was announced that the Hallmark movie group were coming to Summerland and they were going to turn Summerland into a Christmas movie and I wanted to see how they were going to turn Summerland into a Christmas Village.

David Kemp: The movie is called “Yule Blog” and it was turned into New Mexico.

Phil Johnson: That's the thing, and they said well ‘how do we do this?’ Instead of having it in snow, ice and winter we're going to turn it into a southwest Christmas if you will.

David Kemp: That’s right and I believe Peachland was turned into Oregon as well and that was kind of funny because there's an American flag flying on the flagpole and I think people thought it was some sort of misplaced loyalty to America and people got excited and upset and it turned out it was just for a movie.

Phil Johnson: I remember because people thought, why are we turning our own backyard into “Little America” just for the sake of a movie crew.

David Kemp: Exactly. So there is a lot of fun stuff going on here.

Phil Johnson: The first thing that I would say is, how do you make sure that you're not being scammed because I know people who answered casting calls to a hotel room, they were sold a profile package by a guy who said I'll be your agent and so on but you need to have this and this and this and we can shoot that for you right now and here's what we're going to package. Then you watch Hollywood is going to come thundering to your door, but five and a half thousand dollars later they're nowhere.

David Kemp: One of the main things that we need to understand is a casting call, “casting” is only done by a casting director. Now the casting director works directly for the production and is not going to charge talent fees. The casting director is paid by the production to find people who fit certain roles and have certain looks and whatnot, that is what the casting director does. So, the casting director is never going to approach you and say you could be a big star but first all you have to do is this and this. Obviously, it gets very difficult to cast movies if you're talking to thousands of people, so what they do is speak through talent agents. Now talent agents are very highly regulated by the BC government so all of this falls under the Employment Standards Act, this is all employment law and essentially the exact same as if you have a job all of the same laws apply. So talent agents are very strictly regulated and talent agents are only allowed to charge you 15% of the amount that you made on the production and they can only charge you on the back end. These casting calls saying come to my hotel room and I'll film these things and you have to pay this and this and this and this and you might become a star one day that is entirely illegal.

Phil Johnson: Interesting. Illegal?

David Kemp: Absolutely. If you hear of someone doing just that and holds themselves out as a talent agent and starts charging you for a whole bunch of other stuff that is illegal. Now what does pop up sometimes, if you wind up with a talent agency and a talent agency can only charge you those fees that are allowed by law, that’s the 15% of the backend, and so the talent agent is only allowed to charge you to 15% plus look at administrative fee to update your photograph and then things like that. You’ve got the casting director, you’ve got the talent agent and then what you may also see is sort of like ancillary service providers, so that would be people who will do those photo shoots, who will do videos, who will do the extras but they cannot hold themselves out as a talent agent.

Phil Johnson: Do I need to worry that this individual however is being put forward by the casting individual and effectively I'm going to be charged by these people and he's getting a kickback?

David Kemp: This is where it gets a little bit murky. Obviously any services that are provided like photos, videos, demo reels, acting lessons, things like this, these are all services and in the right instance may help talent develop themselves and promote themselves and what not. You do see some relationship between talent agents referring to various organizations or a talent agent saying this may help you but the talent agent themselves cannot charge fees on that or receive kickbacks or anything like that. The management companies or the service provider, the ones who do things like the photos and videos, they cannot hold themselves out to be talent agents or cannot not hold themselves out so you think ‘if you come to us you will get hired by various productions.’ These are three very separate silos and this is something we've done quite a bit with the talent agents that I've been working with, is if there is any kind of discussion about this may improve your career, it needs to be very, very, very clearly set out that these services are optional.

Phil Johnson: The individuals that you're just talking about will they already have a track record, will they already have a portfolio of people that they're representing, will they already have an accumulation of a productivity of results that they give the individuals such as me some sort of comfort that they know what they're doing? More to the point for people who have come before me they've actually produced results.

David Kemp: Absolutely. There are a few different talent agencies in town and a whole bunch down in Vancouver. You can ask them, how long have you been in the business, what are your results, who have you placed? Various ones will be able to tell you that we're new, or we've been around the industry for a while, the truth is that this is a very young industry in Kelowna and you're going to wind up with a lot of people who have varying track records. I know the talent agency that I work with, the principal of it, Brenda, has been working in the film industry for a long time and has placed people. That’s a great question to ask because a lot of times these talent agencies want you to sign up to an exclusive deal, so that contract that you are signing is essentially saying that this talent agent will exclusively represent me. Now that's fantastic if they are producing results, but not as fantastic if they are not producing results.

Phil Johnson: There inline is the rub. I’m asking for proof of performance and I recognize that proof of performance has a whole lot to do with are you right for the movie, are you too tall or too short, are you too old or too young, you're not good-looking enough, what kind of talents do you have, when you walk you look like a bit of a geek we're not casting geeks today goodbye.

David Kemp: That’s a really good example. Talent agents have a job to put you in front of people however just like any business, actors and talents should treat themselves as businesses and invest the time and invest the money and invest the effort into becoming the best professional that they can. You named a bunch of things like you walk like a geek or whatever. These are things that if you truly want to be a professional actor or pick up professional jobs in this industry, these are skills that a person should be developing and investing the time and money into doing so.

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