In the creator economy, brand collaborations often flow through intermediary agencies that position themselves as a gateway to major advertisers and high value brand opportunities. What many creators do not realize is that these deals frequently rely on a legal structure that leaves them with considerable exposure and limited recourse. At the center of the issue is the absence of contractual privity.

What Contractual Privity Actually Means

Contractual privity is the principle that only the parties who sign an agreement have the legal right to enforce it. If Party A signs an agreement with Party B, and Party B signs a separate agreement with Party C, Party A generally cannot enforce the terms of the agreement between Parties B and C. Party A is limited to the rights in the agreement it actually executed.

This straightforward concept becomes a significant fault line in creator protections when agencies insert themselves into the middle of brand partnerships.

The Core Problem: The Creator Is Usually Not Contracted With the Brand

Agencies often present themselves as the connector for brand deals. The agency enters into an agreement with the brand. The creator enters into a different agreement with the agency. The creator may see language such as “The agency’s obligation to pay the creator is subject to the agency’s receipt of payment from the brand” or “If the agency does not pay within the specified period, the creator may seek payment directly from the brand.”

These clauses may seem procedural or even helpful at first glance. In reality, they underscore a structural problem. The creator does not have an agreement with the brand, and without contractual privity, the brand has no legal obligation to pay the creator at all. The creator becomes fully dependent on the agency’s upstream agreement, a contract the creator has not seen, cannot enforce and has no control over.

No Assurance That the Agency Even Has a Contract With the Brand

The concern grows deeper when the creator’s agreement does not confirm that the agency has a written contract with the brand in the first place. Nothing may verify that the agency has authority to represent the brand, that the brand agreed to pay the agency, that the brand signed off on the campaign terms or even that the brand knows the creator has been asked to produce content or use brand trademarks or assets. Creators may be asked to perform work without any certainty that payment has been secured or that the agency has the authority to commit the brand to the deal.

Why “Go Directly to the Brand” Provisions Rarely Mean Anything

Some agreements include a clause stating that if the agency fails to pay, the creator may (or must) pursue payment directly from the brand. Without privity, this provision offers little real protection. The brand has no legal duty to honor that request. These clauses often function more as a cosmetic reassurance for the agency rather than a meaningful remedy for the creator.

Why This Structure Works Against Creators

This model produces a series of predictable problems. The agency shifts the financial risk entirely onto the creator, who absorbs the loss if the brand fails to pay. The creator cannot enforce the agency’s agreement with the brand and therefore cannot challenge upstream breaches. Without access to the brand level agreement, the creator cannot confirm compensation, usage rights, deliverables, cancellation terms or timelines. The creator may unintentionally work at a loss if the agency has misquoted the brand or has not secured payment. Finally, the agency’s incentives may not always align with the creator’s. The agency may agree to terms that benefit its long term relationship with the brand even when those terms disadvantage the creator.

Despite how common this structure has become, it remains one of the most unbalanced deal models in the industry.

Creators Should Not Accept This as an Industry Standard

Agencies may describe this structure as standard or unavoidable, but repetition does not make it equitable. This model often prioritizes intermediary convenience over genuine protection for the creators whose work drives the entire campaign.

At a minimum, agencies should confirm that a written agreement with the brand exists, that its terms align with what the creator has been promised, and that the brand is contractually obligated to pay. They should also commit to supporting the creator in pursuing payment if the brand fails to perform. And when nonpayment is the result of the agency’s own actions or failures, the agency should remain accountable for making the creator whole.

A stronger and more resilient creator economy depends on transparent, enforceable and fundamentally fair deal structures. Creators should not be asked to shoulder the full risk of nonpayment or rely on assurances tied to agreements they cannot review or enforce. Agencies can and often do play a valuable role in building partnerships, but that role must come with clear responsibilities that safeguard the people whose work makes those partnerships possible.

For support navigating brand deals, whether the agreement is with an intermediary agency or directly with the brand, the team at Odin Law can help.