Digital, Commerce & Creative 101: Talent Agreements
28 October 2024
When drafting or reviewing talent, performer or celebrity agreements under English law, there are several key points specific to these agreements to consider to ensure that both parties (the talent and the commissioning party) are adequately protected. Getting the right balance is of course, where the challenge is.
- Authority: If you are the commissioning party, consider who you are contracting with. If the talent is contracting via its personal services company (“PSC”), it is always best practice for the commissioning party to obtain a separate inducement statement signed directly by the talent acknowledging the obligations in the contract and agreeing to honour those obligations and the grant of any rights to mitigate any issues arising in connection with the PSC’s authority to perform the contract and the grant of any rights. The talent (or an authorised signatory for the talent’s PSC) should sign the contract, but if an agent will sign then it is good practice to include a warranty (and, ideally, corresponding indemnity) in the execution clause from the agent that they have the appropriate authority to sign the contract for the talent. An inducement letter (as described above) will also help to mitigate any such risks associated with authority of agents to sign.
- Payment: If payment is being made to the talent’s agent or PSC (rather than directly to the talent), clarify that this method of payment will be good and valid discharge of the commissioning party’s payment obligations.
- Social Media: If the talent is providing social media services, clearly outline any brand social media handles that the talent needs to use and in the case of brand partnerships, any labels / disclaimers that need to be included (and where) to demonstrate that it is advertising content. This should be in line with the latest ASA and CMA guidance. Social media campaigns will also require some consideration of editorial control and approvals processes (e.g. more streamlined approval processes for ‘reactive’ social content), the number and type of posts for each platform, and tone of voice (balancing control with authenticity). Some consideration should also be given to quality of audiences, and whether any guarantees are required in relation to followers not being artificially increased or paid for.
- Ownership of Intellectual Property: Establish who owns the intellectual property rights in the product of the services (e.g. recordings, photos, scripts etc.) Typically, the commissioning party will want to retain ownership of the copyright in the assets created (and pay a “buy-out” fee for those assets and any other product of the services), but this is not always necessary depending on the type of talent deal being done. The talent, on the other hand, certainly when working with brands, will want to retain control over the use of their image and likeness and may only agree to grant a limited licence to use the product of their services subject to certain restrictions (e.g. scope, media, duration, geography). Of course, parties may also require certain guarantees as to content originality and non-infringement of third-party rights.
- Image and likeness: Use of the talent’s name, image, voice and likeness must be carefully regulated. The contract should specify how these attributes can be used by the commissioning party (e.g. for marketing and promotional purposes, merchandise) and if any restrictions apply (e.g. media, duration, exposure, geography, type of use).
- Moral Rights: Consider whether the talent has any rights of attribution or to prevent derogatory use of their work or image. Moral rights cannot be assigned or transferred, so include a waiver of moral rights if applicable. In some jurisdictions (e.g. France), moral rights cannot be waived contractually. Certainly when talent are creating and distributing content on their own channels a full waiver of moral rights is likely inappropriate.
- Reserved Rights: Consider whether the talent should reserve certain rights (e.g. approval rights, credit rights etc). Consider if the grant of IP rights (or waiver of moral rights) needs to be made subject to these reserved rights. For example, the right of credit should be carved out of any waiver of moral rights.
- Other Rightsholders: Consider if there are other rightsholders that will need to be approached (e.g. if working with athletes or sportspeople, consider if you will need to license any IP from their club).
- AI: Consider if AI is going to be used in connection with the talent’s work or their name, image, voice and likeness and if so, on what terms (e.g. use restrictions and additional fees) and if the works created using AI should be excluded from any IP buy-out provisions (and the associated buy-out fee). Talent should be able to provide informed consent to the use of AI and should be properly remunerated for this use.
- Morality Clauses: These clauses allow the commissioning party to terminate the agreement if the talent engages in behaviour that could damage the commissioning party’s reputation (e.g. criminal conduct, scandal). Talent may also require protection if the commissioning party does something damaging to their image, allowing them to exit the contract or refuse involvement in certain campaigns or future commissions. Remember: talent will often seek to carve out issues that are already in the public domain from any morality clauses, so initial due diligence may be important depending on the talent in question.
- Insurance: Depending on the type of deal being done and talent being contracted, there may need to be an obligation on both parties to take out appropriate insurance to cover any potential liabilities arising during the project/campaign. The position however may be quite different for a deal with a smaller social talent for example, who may not have or be able to afford such insurance and it may be inappropriate to demand that they get it when the commissioning party is in a much better position to insure such risks themselves. Depending on the size of the deal and investment, the commissioning party may want to consider what is often referred to as ‘death and disgrace’ cover in the event a campaign has to be pulled due to illness, death or reputational issues. The commissioning party should also consider obtaining production insurance, having due regard for the level and nature of insurance that might be required (e.g. weather day insurance, insurance of negatives, etc.)