An Agency Guide to Key Talent Agreement Points and Negotiation Tips

Have you ever been in a negotiation with talent for a content creation project or influencer campaign that seems to last weeks?

Maybe even weeks after the content has already been posted (yes, we know about that, and we forgive you)?

With summer campaigns on the horizon, we wanted to give you a cheat-sheet for your upcoming talent negotiations. Read on for our recommendations on key agreement clauses and negotiation tips to get the deal done (and on time).

And note – these tips work for both influencers and content creator talent.

1. Confidentiality

When you engage talent for a client campaign, you are likely going to give them access to confidential information of both your agency AND your client. This can include the brand’s business plans, unreleased products, the agency’s proprietary intellectual property, trade secrets, and more.

Your client expects you to maintain the confidentiality of this information, and it will expect everyone you work with to do the same. Further, if you’re giving the talent access to any of your agency’s secret sauce, you won’t want them sharing that with their next agency collaborator.

The confidentiality clause in the talent agreement should be broad enough to protect both agency and client information, and it should be paired with a quick termination penalty if the influencer breaches their nondisclosure obligation.

NEGOTATION TIP: Take a firm stand on confidentiality clauses. If talent isn’t willing to maintain secrecy, then you probably shouldn’t be working with them. Moreover, your client has probably required you contractually to protect their information from third parties.

2. FTC and Social Media Rules

One of the most frequently asked questions we receive regarding compliance with FTC regulations and social media platform rules is “Who is responsible for this?”

The short answer is that everyone is responsible, at least to some extent. When the FTC takes notice of a noncompliant post or piece of content, they are going to look to all parties involved in the campaign – brand, agency, and influencer/creator. And the one party that will be looking ONLY at your agency? The client. Your agency’s goal is to reduce your liability as much as possible, while maintaining responsible practices to ensure ad regulation compliance of the content published.

To protect the agency in your contract, you should include provisions that place responsibility on the talent to maintain compliance with all FTC and platform rules. This means adding appropriate disclosures, making truthful and not misleading claims, appropriate content warnings, age restrictions, etc. Compliance with the FTC’S rules is part of being an influencer, and they should familiarize themselves with the requirements. Including this language as a contractual requirement sets the tone of responsibility prior to content creation and publishing.

Meanwhile, the should also ensure it is regularly checking talent work product, keeping up to date with changes in rules and regulations, and promptly contacting the talent for corrections if you notice any mistakes. This further reduces your potential liability to the FTC (and your client).

NEGOTIATION TIP: Impose quick-turn deadlines on any edits to live content for FTC or platform compliance. If, during negotiations, an influencer wants to charge extra for this editing work, limit exceptions to the quick-turn requirements to situations where the agency has made a mistake in providing information or instructions to the talent. Otherwise, the talent should be expected to provide content that complies with the law.

3. IP Ownership

Talent and their agents are frequently bombarded with the message “You must retain ownership of your intellectual property,” even in situations where ownership does not make sense or the content isn’t particularly valuable to them. This means that IP-related negotiations can get tricky and complex (and lengthy), especially when a brand has varying ownership expectations.

TALENT OWNERSHIP OF CONTENT: If (1) talent is directly posting on their own social channels, (2) the content will be used for a short period of time, or (3) the brand does not want ownership of the content, generally it is acceptable for the talent to retain ownership of the materials. However, you will need to ensure that the talent is not able to continue using the materials for their own benefit after the engagement has ended, or in any way that will jeopardize the brand.

BRAND OWNERSHIP OF CONTENT: If (1) the content is being posted directly on the brand’s social channel, (2) the content contains “b-roll” footage that otherwise does not contain the influencer’s face, (3) the brand intends to use the content for multiple purposes, or (4) the brand wants full ownership rights to the content, then your agency or the brand should own the content vs. the talent retaining the rights to it. And if you know ahead of time that you or your brand wants ownership rights, start talking about them from the beginning so that the talent doesn’t increase their fee at the final hour of negotiation.

When it comes to IP rights and ownership, always keep in mind that publicity rights are a separate issue. Not only do you need to address “who owns what”, but you also need the talent to say “yes you can use my likeness” regardless of who owns the IP in the created materials.

NEGOTIATION TIP: IP rights are where your negotiation skills (or your legal team) come in handy. When you have talent or agents who consistently push back on IP clauses, you will need to take extra time to address their concerns, point them to language that addresses the issues they bring up, and potentially add extra language to make them comfortable (even though it very rarely changes the actual meaning of the clause).

4. Indemnification

Before we launch into this one – what even is indemnification?

In plain language, it’s a clause that says “if someone who isn’t part of this agreement has a claim or some damage because of something you did, you’re going to deal with them directly and leave me out of it.”

It’s important to have an indemnification clause in your talent agreements because the talent often has full control over creating the deliverables, posting the deliverables, editing the deliverables, managing the social media account, etc. When someone has that level of control, it should be expected that they will take responsibility for those items. For example, if they pull an unlicensed image off of Google and incorporate it into the content, they should be responsible for that infringement – not the agency.

Talent will also expect a similar indemnification from the agency to protect them against the agency’s wrongdoing. For example, if you provide them with an unlicensed sound or give them copy that contains inaccuracies, or inaccurate product information, they will want the agency to be responsible for those mistakes. Generally, this is acceptable and expected.

NEGOTIATION TIP: Talent will frequently want indemnification to be mutual. However, “mutual” does not necessarily mean “equal”. As noted above, each party may have different levels of control over portions of the projects. Each party should be responsible for the things they have control over, and the indemnification should be tailored accordingly.

5. Termination & Fee Structure

We are addressing termination and fee structure in the same section because they can become very intertwined. One of the biggest sticking points during negotiations is how talent will be paid in the event of an early termination.

Our typical recommendation is to provide pro-rata or per-deliverable payments. This means that talent is either only compensated for (1) work performed and rights granted or for (2) wholly completed and public deliverables. Some agencies opt for installment plans or 50/50 payment plans, but these can cause complications during early terminations and are therefore not always appropriate.

1. Termination by Agency for Convenience

If your agency or the client no longer wants to work with an influencer for any reason (outside of the influencer’s wrongdoing), this is a “termination for convenience”. In this situation, notice should be given to the talent, and the talent should only be paid for the work or deliverables completed through the date of termination.

Note: We generally don’t advise giving talent the option to terminate for convenience. Influencer campaigns are often built around specific people with specific platforms, and it can cause substantial damage to the agency and the brand if an influencer backs out unexpectedly. You might give the talent exceptions for emergencies, but otherwise they should uphold their commitment.

1. Termination by Agency for Breach

If the talent has breached your agreement (violation of a morals clause is one commonly understood example of this), you will want the ability to terminate immediately. If their breach has rendered any of the deliverables unusable or caused damage to the brand, you will also want the ability to withhold additional payment, including for completed work that is then unusable. If the damage to the agency or brand is severe, you may even demand additional compensation from the talent.

NEGOTIATION TIP: The most common requested modification we see on this point during negotiations is that talent should be paid in full regardless of the reason for termination. This is almost never advisable; the agency’s standard position should be that talent should only be compensated for the work performed. Unless there are severe exclusivity provisions that prevent talent from getting any other jobs (i.e., a tech influencer who is restricted to a single tech brand), there is usually not a strong reason why talent should be paid in full due to the agency’s termination. The brand client, further, will certainly not want to pay a bill from a content creator who is no longer providing content, or, worse, who engages in misconduct of some kind.

6. Final Tips

Talent negotiations can be stressful, especially when campaign deadlines are looming. Keep these final tips in mind to keep the process smooth and quick:

• Understand your brand’s requirements clearly. If you know your parameters at the outset, you know just how much room you have to negotiate.
• When necessary, remind the talent that you are not trying to take advantage of them and that the brand is excited to work with them. By acknowledging the existence of “bad actors” in the industry (the ones everyone sees on TikTok), you can increase the trust between the parties.
• Have patience. Especially when agents are involved, emotions can run high and advocacy can be more extreme than necessary. Conceding smaller points can help you push the bigger points through.
• Have a strong toolkit of legal agreements that contain your best practice terms and conditions so that you’re not reinventing the wheel every time a new deal arises.
• Talk to your lawyer! We can give you tips to wrap things up, and we can also step in on your behalf to “lay down the law” so that you can move on to other projects.

Note: the list above does not address all of the clauses that should be contained in an influencer agreement. If you have questions about a specific contract term or negotiating point on your next creator deal, reach out to us for a conversation.