Agencies cross the line of model behavior

Another recurring issue is that many agencies continue to charge models large sums for entry level photographic sessions. These images may either be used by the agencies for their portfolios and websites, or else to produce model 'Zed', or 'comp' cards, although many models find that they subsequently receive no paid work from their investment. Legally this is a gray area, as agency photographers have a bona fide product in the creation of processed images, and there are genuine costs involved. However, this loophole is frequently exploited to generate revenues from photoshoots when there is little income coming in from elsewhere. As aspiring models are also expected to spend large sums on cosmetics, tanning, grooming, fashions and travel, those agencies which charge advance fees can place the limited finances of young models under great strain. Such stress can literally break the bank if gainful work is not quickly realized. Given that young debutantes may receive less than £20 per hour after the costs of travel and accessories are deducted, models may find themselves working at a loss in the hope of ensuing success. As even established model agencies may find themselves short of work and overwhelmed by queues of aspiring models in the current crisis, the temptation to charge 'signing' fees or to insist upon paid test shoots may seem irresistible. Nowhere were the symptoms of the current malaise more clearly evident than at a recent casting for 'America's Next Top Model' which was held in midtown Manhattan. Thousands of hopefuls lined the streets overnight for a small shot at stardom before rising tensions led to outbreaks of violence and a near riot. Three individuals were arrested on disorderly conduct charges and six others were injured in the ensuing March madness outside the Park Central Hotel before the event was finally closed down. Clearly, desperation and disorganization are dangerous accomplices.

Modeling 'scams' are often advertised as photoshoots for aspiring models or actors in small ads, and these tend to take place in hotels, back street studios, or pubs. A legitimate model agency will not usually charge upfront fees, and it is technically illegal to charge models just to be put on the agency's books. To many this would appear to be common sense, although the demand for work presently exceeds supply by such a margin that clandestine fees and commissions prosper even within the more respectable side of the industry. Some agencies successfully evade the fine letter of the law by charging an 'advertising fee' for a model's profile to be published on their website or brochure, and many also request fees for the processing of contracts. Although most UK agencies lawfully charge a commission of between 20% and 25% of the fee for the model's services, some less scrupulous operators may charge a greater percentage or else rely entirely upon advance fee frauds for their income. This issue was addressed to some extent last year when new regulations were brought in that required UK model agencies to reimburse any advance fees within seven days.

American model agencies have walked warily in the wake of revelations that led to a wave of closures over a range of issues from illegal commissions to underage sexual encounters. Even today, the reverberations continue to radiate throughout the fashion industry, leading to further reforms in an attempt to regain the wreath of respectability. Meanwhile, outside the United States, there has been fresh outrage over the employment of underage models in fashion shows and art campaigns, most notably in Australia. Retail giant David Jones recently barred all models under the age of 18 from appearing in its summer fashion parades after a media storm was triggered by the appearance of 14-year-old Monika Jagaciak in Australian Fashion Week. Those compelled towards relativity might note that 18 has long been the accepted minimum legal age for glamour and adult models.

The encroaching 'sexualization' of young teenagers is an increasingly contentious issue, with the fashion industry fearing a return to the dark days at the dawn of the new Millennium when a BBC journalist famously exposed the sexual exploitation of minors within the Elite model group. The spectre of teenage sex continued to haunt the model industry last year when 12-year old Queenslander Karla Reid was selected as a finalist of the Girlfriend Model Search in October, a contest which offered as its first prize a two year modeling contract with Chic Model Management and an appearance in Girlfriend magazine. This was by no means an isolated incident in Australia, with further public outcry being triggered when 12-year-old Madison Gabriel won a Gold Coast fashion competition. As a consequence, we are now seeing age limits being enforced more rigidly, not to mention the mandatory weighing and drug testing of models that was introduced during last year's London Fashion Week as part of a concerted effort to clean up the industry's reputation. As with most aspects of the global fashion industry, new ideas spread like contagion, prompting the Italian government to pass a new law preventing underage, foreign models from working in Italy. The new rules forbid any foreign model under the age of 15 from working in Italy, and models aged between 15 and 17 may only work if accompanied by at least one parent or a legal guardian. Clearly the authorities seem to believe that an ounce of prevention is worth a ton of cure...

Models should be streetwise and wary of any agent or agency that makes extravagant claims relating to earnings potential or opportunities, especially if they are promised immediate work. Never sign an agreement or pay any upfront fees for registration or 'photographic' services. Always ensure that you fully understand all the terms and conditions of a contract, and ideally take it home to read and to sleep on. Ask plenty of questions before signing anything and enquire about an agency's reputation before signing on the line. Model beware...

UK Agency Law

For curious models and those who are still feeling inclined to start their own UK model agency, here follows a short guide detailing the rights and wrongs of agency modeling within the UK:

Whether the model agency you are starting is classed as an employment agency or as an employment business there are certain important considerations, such as what legal form it will take and where it will be run from. Surprisingly there is no legal requirement to form a 'formal' company when starting an employment agency or business. There is no reason why you cannot run a model agency from your home address providing that you comply with the relevant rules and regulations. However be careful when operating a UK model agency in other countries, as the legality of doing so depends on the law of the country concerned.

Is my model agency classed as an employment agency or as an employment business?

A 'model employment agency' is defined a business which finds work for models who are both employed and paid by employers, and for legal purposes the model is an employee of the company they are working for. A model 'employment business' on the other hand employs or engages a model (or actor) under a contract who in turn works under the supervision of another person. Under these arrangements models are paid directly by the agency rather than by the company they are supplied to, and the agency is legally the employer.

Do I require a licence to operate a model agency?

Although model agencies must comply with the Employment Agencies Act of 1973, the formal requirement to be licensed was abolished in 1995. There are two specific tracts of legislation which specifically apply to model agencies and employment businesses under the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003. These relate to fees and contracts.

Fees

Unlike other employment agencies, model and entertainment agencies are entitled to charge fees for finding employment for performers or photographic and fashion models, either from the model's earnings or for including their details in a publication or on a website. However, if you do charge models a fee for including their details in your publication you are obligated to make available a copy of a current edition of that publication to them before entering into a contract. The model is also entitled to a seven day probation period during which they have the right to cancel or withdraw from the contract without incurring any financial penalty. An agency may not charge a fee during this probationary period.

Contracts

A model agency may not enter into a model employment contract with a third party employer on behalf of a model (or on behalf of the employer) unless the person for whom it acts has given their permission for the agency to act on their behalf. Where the agency acts for the model it must inform its client, and any other party to the contract, of the terms of the contract within five business days of the agency entering into that contract. However, when agreeing the terms of a contract, a model agency may not act on behalf of both the model and the employer.

Client accounts

Any money received by the agency on behalf of a model must be paid into the client's account. The account must be in the name of the agency and its title must include the word 'client' or, if the account contains money for an individual model, the name of that model.

The agency must get the model's consent to make payments from the client account except where:

• the payment is to repay the money used to open or maintain the account
• the money has been wrongly put into the account
• the money is that required by law to be deducted from earnings before it is paid to the client

In these cases the money may be withdrawn, provided that the amount to be withdrawn does not exceed the total amount held in that account for the client model(s).

Accounts and records

Model agencies are required to maintain sufficient accounts and records to show all transactions relating to any money belonging to their client models which have been received on their behalf by the agency, together with any other money paid into the client account.

The accounts should show the current balance of each client model's account in the client's ledger. Model agencies must also keep a record, and copies, of all invoices and statements in respect of payments made to and from the client model's account. The records must distinguish between fees and expenditures, delivered or made by the agency to its client models. These records must be held for at least six years and be kept either at the agency's business premises or elsewhere so long as they are easily accessible to members of staff. Agencies may keep the information in electronic form so long as it can be reproduced in a legible and printable form.

Model agencies duly required to keep accounts and records must arrange for them to be inspected and reported upon by an independent person who is a member of one of the bodies listed in section 249D(3) of the Companies Act 1985 within ten months of the end of the accounting period. Model agencies must also maintain a copy of the reporting accountant's most recent report to be displayed at each of their premises so that it can be readily seen. Other rules and regulations relating to the Data Protection Act, health and safety legislation, insurance requirements and Criminal Records Bureau checks must also be observed.

The EAS Inspectorate has the power to prosecute a person who contravenes the regulations. Each offence mat be tried in court and carries a fine of up to £5,000 and a possible ban from being involved in a model agency or employment business for up to ten years. Offences tried in a crown court can carry a potentially unlimited fine. In addition, any person who obstructs an officer in carrying out their duty will be guilty of an offence and liable to a fine not exceeding £1,000. An employment tribunal can ban a person (including a company) from being involved in a model agency or employment business for up to ten years on the grounds that the person concerned is unsuitable because of misconduct or any other sufficient reason.

Employment agencies and employment businesses must do a number of things, including:

• Obtain adequate information about what the client requires and the model's suitability for a role
• Ensure a model has any qualifications required by law, including carrying out a criminal record check if necessary
• Make it clear in any advertising that they are an employment agency
• Obtain written consent from a parent or guardian when taking on a person under 18
• Provide workers with written details of all chargeable services, including details of their right to cancel together with the notice period required. The notice period is generally ten days for cancelling accommodation and five days for all other services

The legislation also prevents the employment agency or business from doing a number of things, including:

• stopping a model from taking their business elsewhere
• supplying a temporary model to replace an individual taking part in industrial action