Monday, January 15, 2018
William Morris Endeavor and the Wahlberg/Williams Pay Disparity: A Role for Agency Law in Equality and Justice?
“Injustice anywhere is a threat to justice everywhere.”
Martin Luther King, Jr., Letter from Birmingham Jail, Alabama, 16 April 1963, in Atlantic Monthly August 1963
I had wanted to post a tribute to Dr. King here early on Monday. However, after posting the Emory conference announcement, I moved on to other work, and that work filled up the available time in the day. So, this late post including the quote above will have to suffice.
As I read meaningful quotes from Dr. King on social media and elsewhere all day on Monday, I found myself thinking of examples of inequality and injustice. Many are compelling; many are meaningful. Some are current events; and some of those involve business law questions.
For a number of days now (since before MLK Day) we have been showered with news stories relating to the compensation disparity between Mark Wahlberg and Michelle Williams for reshooting scenes from All the Money in the World in the wake of Kevin Spacey's replacement in the film resulting from allegations of sexual misconduct. (See here, among other places.) Most folks who follow Hollywood business issues know that gender discrimination is common. My sister, a visual effects producer (her current movie is Downsizing, which I enjoyed and recommend), has suffered the effects.
But I found myself focusing on the role of William Morris Endeavor Entertainment LLC (WME), the talent agency that represented both Wahlberg and Williams. Talent agents are regulated by guilds and unions as well as under California law (as represented here). But they also have fiduciary duties. Why did Wahlberg's contract not include a reshoot covenant (giving him the leverage to negotiate an outsized reshoot fee) while Williams's contract did? Did WME fail to act in a manner consistent with any applicable duty of care--or maybe loyalty--as an experienced agent representing both actors--with knowledge of an overall gender pay gap? Of course, there are many other possible explanations for the difference, and we are not privy to the terms of the two actors' talent contracts with WME (including any enforceable private ordering around agency law rules or confidentiality or privacy clauses). But the related questions seem worth asking.
Specifically, we might ask whether there is a question of WME's care, competence, or diligence under Section 8.08 of the Restatement (Third) of Agency. And, among other things, Section 8.11 of the Restatement (Third) of Agency imposes a duty of candor on agents that may be applicable here. And were there differences in the benefits that WME got out of each agreement that may have affected the firm's ability to act loyally for the principal's benefit under Section 8.01 of the Restatement (Third) of Agency? We may never know.
Intermediation likely cannot cure the evils of inequality and injustice. But where intermediaries are agents or otherwise owe fiduciary duties to their clients, those fiduciary duties may cause--or at least incentivize--the intermediaries to use their experience and knowledge to correct gender, racial, and other inequities where they exist. This is something I will continue to ponder.
Great insights, points, and questions, Tom. I suspect that the publicity of this may change some of the negotiation dynamics. But ultimately, my knowledge of this area tells me that (as you suggest) the talent--actors in my post--ultimately have to say "yes" to both their agents and their ultimate employers--if they want to work on the project or need the work.
Posted by: joanheminway | Jan 16, 2018 4:07:40 PM
The closest experience I’ve had to these types of personal service contracts is reviewing music management deals (and, not many of those). I suspect, to the casual business person, what the musical artist is required to “give up” to obtain management and promotion would “shock the conscience” of the average person (publishing rights alone constituting tremendous value).
In representing the “unique services” of individuals, might WME and the artists have very separate considerations? Did Wahlberg simply have additional experience (“I’m not doing that again”) and leverage to “command” conditions in his contract? One may question whether one of the independent contractors was of discriminate bankable value when engaging in the performance of the service and whether the demand for those services was sufficient to obtain concession.
I think the real question is whether – after the attention paid - Michelle Williams will, henceforth, require that her contracts exclude a reshoot covenant? Or, are her services sufficiently unique and valuable to obtain it as a concession?
Posted by: Tom N | Jan 16, 2018 1:27:10 PM