Written by Associate Principal, Harry Croft

Are you in charge of or working within an in-house marketing team? Well this article is for you!

We love working with and legally supporting in-house marketing teams who are executing creative projects, especially when it comes to the legal intricacies of dealing with the people helping to create or starring in these projects. In our line of work, we see the most common legal mistakes made by in-house marketing teams when it comes to engaging outside talent, so one of our solicitors, Harry Croft, has created a list of the top mistakes he has seen and how to avoid them. Enjoy!

For the purpose of this article, we are going to collectively call talent, influencers and creators, ‘talent’.

Mistake 1: Forgetting About Superannuation

Be wary of superannuation obligations when hiring talent in relation to creative projects.

Depending on the type of work, the engagement and how talent enter into contracts, you may be required to pay them superannuation, even if they are not hired as employees.

This is largely because of the extended definitions of employee set out in sections 12(3) and 12(8) of the Superannuation Guarantee (Administration) Act 1992 which can cover contractors and certain categories of talent.

The Fix:

-Obtain legal and tax advice to ensure your marketing team understands how Super rules apply.
-Conduct a risk assessment for when Super is payable across different categories of work completed by talent.
-Implement this process across the business so everyone knows when (or when not) to pay Superannuation.

Mistake 2: Failing to Clarify Usage Rights, Terms, and Fees

What if your marketing team thinks you’ve paid the talent for content that will be published in-store or on a billboard, but the talent thought it was only being shared on Instagram? (it happens!)

When brands and talent are not clear on what has been agreed in terms of usage rights and associated usage fees, this can damage relationships and cause the brand to take on loss and/or damage (i.e. because they have to pay more for certain additional usages – not something you want to bring to the CEO or board…).

The Fix:

-Have a lawyer who specialises in advising creative agencies draft a template talent agreement.
-Educate your team on how to use the template properly.
-Get these documents reviewed regularly by your lawyer.
-Be extremely clear and specific in these documents on:
+Where content can be published (for example, if online, where and on what channels);
+The term and territory of the use; and
+When additional usage fees apply.

Mistake 3: Under-Utilising Exclusivity Requirements

If your team are paying talent significant money to create or appear in content, or for other help with a creative project, then it may be reasonable to ask that the talent provides a level of exclusivity to the brand (for example, the talent will not appear in content for a direct competitor for a certain period around the campaign dates).

These restrictions are common practices and are well worth your team thinking about when dealing with talent to maximise your marketing spend.

Exclusivity can help with consistent brand messaging, increase value, maintain authenticity of the partnership with your audience and provide an advantage over competitors.

Note: If exclusivity provisions are not clearly or lawfully drafted in your talent agreement, then they are unlikely to provide much protection, so make sure to go about these the right way.

The Fix:  

-Agree to and include exclusivity requirements at the start of negotiations.
-Clearly identify competitor brand or industry restrictions.
-Identify and detail the scope of those restrictions and document it properly.
-Have your lawyer draft exclusivity provisions that are clear and lawful in your talent agreement.

Mistake 4: Neglecting to Include Non-Disparagement Type Clauses

In some circumstances, a brand’s association with talent (i.e. brand ambassadors) can have a damaging impact on the brand’s reputation as a result of negative statements or conduct made or engaged in by the talent.  

Given the significant social media reach and influence of talent, it is a good idea to think about including protections for the brand in your talent agreement. These are commonly called non-disparagement clauses.

These sorts of clauses can help to ensure issues between both parties are dealt with professionally, give a brand a greater level of control over its public perception, and in extreme circumstances, provide a brand grounds to seek remedies (for example, retraction of statements, a termination right, financial compensation) if things go wrong.

The Fix:

-Include non-disparagement style contractual protections in the talent agreement prohibiting the talent from damaging the brand’s reputation, name or goodwill.
-Clearly articulate the scope of the restrictions (for example, using violent language or negative statements about the brand’s product or services).
-Have this drafted properly by a lawyer specialising in working with creative agencies.

Mistake 5: Overlooking Moral Rights

Moral rights are the rights of an individual creator or author of copyright material which protect the individual’s work, even when it is no longer owned by them. 

They include the right not to have not to have authorship falsely attributed and the right to be credited properly.

To provide your marketing team with the necessary flexibility to use the content for the purposes upon which it was created and without crediting the individual talent in all cases (or at all), it is important moral rights are dealt with and documented properly in the talent agreement.

The Fix:

In Australia, moral rights cannot be waived, transferred or assigned, but an individual can consent to a work being used in a way that doesn’t uphold their moral rights.

Consent will only be effective if it is given by the author or their representative in writing and has not been obtained by inducement or misleading statements – meaning this has to be dealt with in the signed talent documentation.

Further Information

Want to avoid making these mistakes in your marketing team? Then get in touch with Studio Legal for some initial advice and to prepare a watertight talent agreement. Please contact us through our online form or via email at  hello@studiolegal.com.au. 

Written by Associate Principal, Harry Croft

Published 13 August 2024.

Photo by Maddi Bazzocco on Unsplash

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.