Fashion Modelling tips and a starting point to UK law and modelling
This article is an attempt to explain fashion modelling by setting out the basics regarding the conduct of model agencies as it relates to modelling agreements and modelling work. It is not meant to be a comprehensive guide, and there are several significant commercial and legal considerations that it does not consider. To do so would exceed the parameters of the article.
The following list of laws is by no means exhaustive but is meant as a mere guide or starting point:
The Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Agency Regulations)
The Employment Agencies Act 1973 (the 1973 Act) The National Minimum Wage Regulation 1999
The National Minimum Wage (Amendment) Regulation 2011
The European Working Time Directive 93/104EC
The European Young Workers Directive 93/33EC
The European Young Workers Directive 94/33EC
The UK Working Time Regulations 1998 and 1999
The Working Time (Amendment) Regulations 2003
The Health and Safety at Work Act 1974
The Sex Discrimination Act 1975
The Race Relations Act 1976
The Disability Discrimination Act 1995
The Employment Equality (Sexual Orientation) Regulations 2003
The Employment Equality (Religion or Belief) Regulations 2003
This article will focus on the Agency Regulations which are, in my opinion, the most useful starting point in a neither exhaustive nor rough prescriptive guide to the law in the modelling sector.
Responsibility for UK business and employment laws comes under the remit of the Department for Business Innovation and Skill (BIS). The Employment Agency Standards Inspectorate (EAS) enforce the Agency regulations under the auspices of the BIS.
Under section 5(1) of the Employment Agencies Act 1973 the 2003 Regulations were made to “secure the proper conduct of employment agencies and employment businesses and to protect the interests of persons availing themselves of the services of such agencies and businesses”. The Agency Regulations consist of 7 parts, six schedules and an explanatory note.
Employment Agency; Employment Business or Employment Agency and Employment Business
The Agency Regulations treat employment businesses and employment agencies differently. An employment business is where the business engages the person seeking work through a contract for services or a contract of employment. The business supplies the person seeking work to the hirers either for temporary assignments or contracts. An employment agency is broadly an agency that introduces someone seeking paid work to a hirer for a permanent job or a fixed term employment position.
Model agencies are employment agencies. Their primary function is to find bookings and negotiate contracts of employment on behalf of a model or talent, who is a self-employed independent business (the client model) with the people that use models (the hirers). Regulation 9 of the Agency Regulations is of particular importance since it requires the specific identification of an agency as either an employment agency or an employment business.
A model agency is unlikely to be both, but theoretically, it could be if it is carrying out activities that fall under the definition of an employment business. The following are some of the most important provisions in the Agency Regulations.
1. A model agency is required to provide all models that it has on its books with a written agreement. It must be actively seeking work for the client model.
2. Payment by an employment agency is prohibited. This prohibition does not apply to model agencies.
3. A well-known model agency may invest substantially in a new client model because it thinks that the client model has potential in its specialist market as follows:
(i) use its contacts for marketing them;
(ii) send them to photographers for test shoots;
(iii) lay-out their portfolio;
(iii) invest in their hair and make-up;
(iv) pay for graphic designers and printers for their marketing material; (v) pay for fashion composite cards; and
(vi) pay for travel and accommodation.
If a client model does not do as well as they hoped then the model agency loses its investment and drops the client model. If the client model does well, then the agency recoups its investment from the client model`s future earnings. A small local model agency cannot afford to make such substantial investments against the client model`s future earnings, and the client model might have to make advance payments to a small local model agency for test shoots and other ancillary services.
3.1 Under the Agency Regulations model agencies may not make finding a booking for a client model conditional on the provision of these additional services. Further, the client model must be given an opportunity to opt-out of any of the additional services. Say for example a model agency thinks there is potential for work for a model in Paris, but the client model concerned resides in the US, the model agency might want to arrange flights and accommodation for that client model. The Agency Regulations ensure that a client model has the opportunity to find flights and accommodation for themselves. The client model in the US may be able to locate cheaper accommodation than that provided by the model agency. The client model must be permitted to use the accommodation of their choice. In reality, most new faces do not have the means or contacts to provide these additional services for themselves and for many of them the assistance offered by a well-known model agency is invaluable to their modelling career.
4. Some of the most common agreements in the modelling industry are Model Representation Agreements; Model Mother Agency Agreements; Model Management Agreements; and Model Booking Confirmation Agreements.
4.1 If a term in a modelling agreement is prohibited or made unenforceable by the Agency Regulations, the contract shall continue to bind the parties if it is capable of continuing in existence without that term.
5. A model agency may not take detrimental action or include restrictive terms in a contract which have the effect of preventing the model from terminating the contract, or which unfairly constrain or restrain the client model from earning a living.
6. A model agency cannot threaten to withhold payment or deduct a proportion of payment from a client model because they terminated their contract with the model agency.
7. A model agency can seek recovery of loss as a result of a client model terminating a contract and not carrying out the required work.
8. Both sides must give reasonable notice before terminating an agreement.
9. If the model agency is classed as an employment business, then Regulation 10 of the Agency Regulations will apply. Regulation 10 is a very complex regulation that could potentially address the issue of a client model being unfairly restricted by a term in an agreement.
10. The model agency must ensure that the terms of the contract are notified to client model and the hirer no later than the fifth business day after it is signed.
11. A model agency may not act as agent for the client model, and the hirer simultaneously. The reason for restricting the agent acting for the hirer and the model is to prevent the model agency from double dipping, in other words, getting a commission from the client model and the hirer for the same booking.
12. With respect only to employment businesses, an agency is prohibited from withholding payment on the following grounds:
(a) The business has not received payment from the hirer;
(b) The business can reasonably delay payment while it verifies the work done by the work-seeker. But other than that it must make payment.
(c) The business cannot refuse to pay or withhold part of a work-seekers pay because they do not complete unrelated work or refuse a job.
(d) The business cannot withhold payment because of a matter under its control.
In practice model agencies act as employment agencies and the provisions in this paragraph 12 do not apply to model agencies (provided that they are not providing the services of an employment business).
13. Regulation 16 of the Agency Regulations specifically applies to performers, models and professional sportspersons and others as set out in Schedule 3 to the Agency Regulations.
13.1 A model agency, which is permitted to charge a client model a fee for finding that client model a booking, must include in the agreement with that client model the following terms:
(a) Full details of the service it provides;
(b) Details of the model agency`s authority, e.g. power of attorney;
(c) A statement as to whether the agency is authorised to receive money on behalf of the client model;
(d) Details of any fee which may be payable by the client model to the model agency for finding the model a booking including (i) The amount or method of calculation of the fee;
(ii) A description of the particular work-finding service to which the fee relates;
(iii) The circumstances, if any, in which refunds or rebates are payable to the client model, and if none are owed, a statement to that effect;
(iv) The method of payment of the fee and, if the cost is to be deducted from the client model`s earnings; and
(v) A specified mutual notice should be included in the agreement.
14. The agreements between the model agency and the client model and between the model agency and the hirer must specify whether the service provided by the model agency is as an employment agency or an employment business. The agreement must also give:
14.1 Details of any fee which may be payable by the hirer;
14.2 The amount of the fee or its method of calculation;
14.3 The circumstances, if any, in which refunds or rebates are payable to the hirer;
14.4 The procedure to be followed if the hirer is dissatisfied with the client model;
14.5 Details of authority to act; and
14.6 Both sides must have a current copy of the agreement.
15. Regulation 18 seeks to address the routine information to be obtained from a hirer before introducing a client model to that hirer.
16. Regulation 19 sets out the routine information about a client model that the model agency must obtain before introducing the model to hirers.
17. The model agency has to take certain steps for the protection of the client model and the hirer. For example the model agency has to take steps to ensure that the client model and the hirers are aware of any law that the client model has to satisfy before being able to work for the hirer, for example, in certain countries it is unlawful for a child below a certain age varying from 14 to16 to undertake full-time employment. The model agency should be aware of such laws. The model agency should also be aware of any reason why it would be detrimental to the interests of either the client model or the hirer for the placement to go ahead, for example, the hirer is in financial difficulties or was engaged in immoral or illegal practices.
18. Regulation 21 concerns the provision of information to the client model and hirer and is mostly common sense.
19. Regulation 22 sets out the additional provisions for vulnerable persons such as client models under the age of 18.
20. Where there is more than one model agency negotiating bookings for the client model, the first agency in the chain is responsible for the client model and written agreements between all parties. The first agency establishes the chain for monies and the commission to be paid. This situation arises where there are mother agencies and one or more local agencies in the chain.
21. Regulation 24 deals with travel or accommodation.
22. Part IV of the Agency Regulations addresses client accounts and charges to client models. The only circumstances where model agencies classed as employment agencies may request or directly or indirectly receive money from the hirer on behalf of a client model is where the money is owed directly by the hirer to the client model and constitutes the client model`s earnings from a modelling job or some other kind of entertainment work. The model agency must hold the money for the client model in one or more client accounts.
23. If a model agency receives money on behalf of a client model it must be paid into a client account by the end of the 2nd business day after the day it is received. Payments to client models must be accompanied with a statement setting out (a) When and from whom, the monies were received; (b) the work for which the payment relates; and (c) any fees or deductions made by the model agency.
24. Employment businesses may never request or directly or indirectly receive money on behalf of a client in any circumstances.
25. If a model agency fails to comply with either the 1973 Act or the Agency Regulations, and their failure causes damage or loss to a client model or a hirer, that client model or hirer can sue the model agency for damages arising from a breach of the 1973 Act or the Agency Regulations.
26. Part VII of the Agency Regulations contains several miscellaneous provisions, a full consideration of which is outside the scope of this article. Incidentally, under Regulation 32(9) of the Agency Regulations, limited company contractors working through employment agencies may opt in or opt out of the Agency Regulations, but this is unrelated to the topic of this article. This article is mainly concerned with the Agency Regulations as they apply to individual workers particularly, fashion and commercial models. Modelling agreements need to comply with the Agency Regulations. However, there are several other commercial aspects of negotiating modelling contracts that are of fundamental importance but fall outside the scope of the Agency Regulations and this article, such as the intellectual property rights of the client model.
If you are model, when you receive a modelling agreement review it against the Agency Regulations.
If you are a model agency ensure you are an employment agency.
Seek legal assistance
To book a face to face consultation for commercial legal advice you should contact specialist modelling fashion Lawyers (charge rates may apply and may vary).