The esports industry is responsible for roughly $975 million in revenue in 2020 and is expected to jump to $1.6 billion by 2023, according to data from Statista. There would be no revenue to boast of without the talent competing in the various game titles, and with the talent generating significant incomes for themselves, there has been and will continue to be a need for representatives, in the form of agents, to help procure and negotiate revenue generating opportunities.
The industry itself is very young and thus many questions remain surrounding how to classify those that make up its parts. One particular definition could have major legal consequences for participants.
Are esports streamers considered talent under relevant talent agency acts?
Florida’s Talent Agency Act which begins at Florida Statute 468.401 with a set of definitions that govern the regulations. A talent agency is defined as any person who, for compensation, seeks to procure engagements for an artist. Thus, the penultimate question is, what constitutes an artist?
Florida Statute 468.401(8) defines an Artist as “a person performing on the professional stage or in the production of television, radio, or motion pictures; a musician or group of musicians; or a model.” This law was enacted well before the esports industry was recognized by the general public; thus, there is no questioning the absence of any language intending to govern participants in esports as “Artists.” But should they be grouped within an expanded definition or are streamers and the like immune from such a classification?
This issue was in the midst of playing itself out under California’s Talent Agency Act (which dates back to 1913) through a case that involved popular esports player Turner “Tfue” Tenney and his former agents at FaZe Clan. Tfue sought to be relieved from the obligations of his agency representation agreement based on a claim that FaZe Clain illegally failed to register as a talent agency in California.
California’s Talent Agency Act defines “Artists” a bit differently than Florida. In California, the definition includes “actors and actresses rendering services on the legitimate stage and in the production of motion pictures, radio artists, musical artists, musical organizations, directors of legitimate stage, motion picture and radio productions, musical directors, writers, cinematographers, composers, lyricists, arrangers, models, and other artists and persons rendering professional services in motion picture, theatrical, radio, television and other entertainment enterprises.”
The inclusion of “other artists and persons rendering professional services in motion picture, theatrical, radio, television and other entertainment enterprises” should cause agents in the business of procuring opportunities on behalf of esports participants more concerned with being licensed in California than Florida; however, a case can be made that it is best for conservative agents to become licensed in both states if they are conducting business in both jurisdictions.
People who participate in esports are often involved in much more than participating in video game competitions. They also commonly create content on streaming platforms such as Twitch and upload videos to YouTube, which could classify them as Artists under either of the aforementioned state’s definitions. Unfortunately, the Tfue case did not go far enough to create any sort of precedent on this subject. The parties settled their dispute without the court making a determination as to whether FaZe Clan was illegally operating as a talent agent, in California, without a license.
There exists very little case law surrounding Florida’s Talent Agency Act. In 2019, I represented a group that filed a Complaint against a social media “influencer” for failing to pay commissions under their contract. The influencer claimed to be an “Artist” under the definition of Florida’s Talent Agency Act even though the Act is clearly silent as to whether influencers are to be included within the definition’s scope, for the same reason that it is silent on esports participants — these were undeveloped industries at the time that the Act was crafted.
Putting aside the fact that my client was only representing that one individual, which is a carve out within the Florida Talent Agency Act, the influencer claimed that my client was acting as an unlicensed talent agency in violation of Florida law, which would then render the agreement between the parties void and unenforceable. Instead of resting on Florida precedent (as mentioned, there is little in the realm of case law on this subject in Florida), the influencer cited to various California cases in an effort to get out of making any further payment to my client based on the deals that had been previously procured.
That case also settled prior to trial and thus no precedent was set; however, it presented a novel claim that influencers are “Artists” under Florida’s Talent Agency Act, and if influencers may be determined as such, then it is possible that esports participants fall into the same classification. Thus, agents should be cautious as they enter the space to better understand whether the jurisdictions in which they operate have talent agency laws on the books and, if so, whether going through the licensing process is worth the small associated fees.