What is one thing that most (if not all) digital creators need?
Here’s a hint – not having these is one of the biggest mistakes digital creators can make.
We’re not talking about tons of followers or amazing brand deals or even the best equipment.
While those things are certainly nice, if a creator doesn’t have the right agreements in place for their team (and by team, we mean everyone who touches or appears in the content created) then a creator could find themselves running into some serious issues. Sure, the word “agreements” is far less sexy than “followers,” “brand deals” or “fancy equipment” but, when it comes to the world of digital creation, it’s just as important – if not more so.
Why? Well three major reasons come to immediately to mind:
For starters, creators need agreements to clarify who owns their content. As a digital creator, the content that’s created is their bread and butter. Establishing that the creator owns the rights to it is key. Under copyright law, as a default, everyone who contributes to the creation of a work has an ownership right in the work at the moment of its creation.
An exception for this exists in the context of an employee who creates content as part of their role for their employer. Employees and independent contractors are treated differently under the law when it comes to copyright. Generally the creations of an individual in their capacity as an employee are considered a “work made for hire” and the IP rights in such works are owned by the employer. Even in that context, it’s good to shore up the fringe cases with an invention assignment agreement between the employer and the employee.
Where non-employee contributors such as consultants or independent contractors are concerned, work-for-hire is not implied.** Unless there is an agreement in place clearly stating that the work of an independent contractor is meant to be the property of another person (i.e. you), the independent contractor will have a presumed ownership right in the work at the moment of creation. This is true of video editors, writers, animators, even thumbnail creators. If a content creator hires someone to help create content and the creator wants to own all the rights to the finished product, there needs to be an agreement in place that says as much.
This becomes even more important when working with brands and sponsors. Sponsorship deals will require that creators own all the rights to the content that is created for the given campaign so that the creator can grant those rights to the brand for the term of the campaign. To avoid disputes over ownership and to minimize the risk of breaching brand (and other) agreements, creators need to have agreements in place with everyone who assists in creating the content related to the brand deal.
**Note: In this article we’re focusing mostly on non-employee contributors (independent contractors) however, it’s important to make sure that creators properly classify workers as employees or independent contractors. This determination is outside the scope of this blog, but you can learn more about the legal differences between employees and contractors (and how to properly classify them) here.**
A second reason to have the right agreements in place is to avoid name and likeness issues. Let’s say a creator is creating a content piece that involves the appearance of another person. Maybe the creator is interviewing someone or collaborating with another creator. To establish that, a creator has the right to post the resulting piece on their channel or page, or to license it to a brand, the creator will need to have an appearance release signed by the person or persons appearing in the piece that gives them permission to use their name and likeness as it appears in the content. It’s also a good idea to have language in the release that outlines the agreement as to whether or not they will have approval rights over the finished product. If any person appearing in content is under the age of 18, or the age of majority in their jurisdiction (if it is greater than 18), then the creator will need to have their parent or legal guardian sign their release as well.
Keeping things confidential
Third, having the right agreements in place is key to avoiding confidentiality issues. If a creator is producing content for a brand deal, the agreement signed with the brand will have some kind of confidentiality obligation in it. Generally, creators will be asked not to disclose anything about the campaign prior to launch, as well as any other non-public information received from the brand. If there are other people helping you create content for the deal, a creator will need to have an agreement in place with them that contains similar confidentiality language to ensure that they are also obligated to keep that information confidential. Having appropriate confidentiality provisions in contractor agreements can also help to protect creators from the disclosure of private information about the creator and their business.
Minimizing other risks
Well drafted agreements are key to ensuring that everyone on a team is crystal clear as to who is responsible for what and when. Parties may think that they are on the same page at the outset of a verbal agreement, however, putting things in writing helps to confirm the exact points that have been agreed upon. Doing so will help creators avoid a myriad of potential disputes, for example: disputes over the scope of work, how much the payment is, when payment is due and under what circumstances, what happens if the work that’s delivered isn’t exactly what a creator is looking for, and how many revisions are allowed.
One size does not fit all
Finally, it’s important to understand that one size doesn’t fit all when it comes to most agreements. Having a legal professional – who understands the nature of your business and the potential risks that you face as a digital creator – draft agreements will ensure that they meaningfully protect an entity by tailoring the language to their precise interests.