June 6 2017

Forbes: When It Comes To Contracts, Here's Why You Should Sweat The Small Stuff

Thought Leadership, David Schwab, Forbes, Media, First Call

Octagon First Call's David Schwab continues his regular contributions to Forbes with this piece exploring the importance of contractual fine details.

Brand marketers and their agency partners spend an incredible amount of time focusing on which celebrities and influencers to work with and how much money it’s going to cost them. But in doing so, they spend less time on the contractual fine details as everyone is eager to finish up the paperwork and launch the program.

But please hang on, you must dot the I’s and cross the t’s.

Date Before You Marry. The best brand and talent partnerships are based on collaboration and shared values.  For the right deal, brands and their agency should ask for a meeting over a cup of coffee and sit with the talent and his/her business team. There needs to be a legitimate business discussion in advance, but this will give each side comfort about what is going to happen over the next year or two. And if you ask for it and they decline, you get an early sense of what the relationship may be like in the future.

This is especially important when the project centers on sensitive subject matter, like a social good campaign, a personal hygiene product or a prescription medication. Both sides need assurances from the beginning that the message in the marketplace and the way it’s delivered is something everyone is comfortable with.

The Dreaded Morals Clause (aka the Prenup). While this contract language comes into play incredibly infrequently, the agreed upon language will dictate money owed (or kicked back), communication language the brand is allowed to share publicly post-termination, and under what terms a partnership is allowed to be dissolved. Do the due diligence, including social listening and talking to the individual’s prior business partners. Everyone is different. Know who you are hiring so you can draft language appropriate for that particular person and any circumstances you may be able to predict.

Be My One-and-Only. Brand marketers should, and often do, require category exclusivity from influencers and brand ambassadors, but it’s important to recognize that the definition and use of exclusivity can be expanded beyond just the product category. Sometimes program thematic or even the types of ingredients in a food item can be considered in exclusivity. For example, if a spokesperson is promoting a kitchen cleaner that touts its chemical-free make-up; the brand can help avoid marketplace confusion by building out the exclusivity to also include any other campaigns with similar chemical-free messaging.

This deal point may end up costing the brand a bit more, but it protects the integrity of the program and provides peace of mind against “their guy/girl” spouting identical messaging, just with a different product in their hand. It is also important to consider whether you’ll want your ambassador to avoid categories that are contrary to your brand.  For example, automakers may request their spokespersons not engage with liquor brands, and health care or wellness brands may require their spokesperson to avoid deals with confections companies.

Professional Commitments: Their Day Job. While it is smart for brands to include category and theme-based exclusivity in spokesperson contracts, some talent will have certain exclusivity or restrictions tied to existing professional commitments. A network TV actor may very well have a clause in a pre-existing contract with the show that gives them final approval over any product placement responsibilities within the show’s content. Similarly, talent with roles as anchors or correspondents on news or entertainment programs (i.e. ESPN, E! News, Today Show, etc.) may be restricted from speaking to competitive outlets. and may even be barred from partnering with brands at all. Understand the restrictions now and incorporate them correctly into the agreement.

You Can Negotiate Expenses Too. It may seem trivial, but be specific about travel expenses, per diems, glam and time. For hotel expenses, be sure it's clear the brand is only covering accommodations and not incidentals if a per diem is in place. Without naming names, we once had an A-list talent’s stylist bill $100 worth of rolling papers to the room. This wasn’t a case where the money mattered; the concern was about the brand covering the cost of a possible illegal activity.  What does the contract say about car travel? Is the brand only covering in-market transportation or are you driving them from their home to airport, to event, and then back to the airport and home?  And who is the brand providing it for, just the talent or their whole team? While it may feel at times like overkill, it is sometimes worth taking care of the talent’s business team. To me, that cost is minimal to ensure they are happy and helping you on site with their client. There isn’t a cookie-cutter answer on what brands should provide but you should know what you are buying and negotiating for each deal.

Also, be specific about talent’s time. Does your eight-hour shoot day include three hours of hair, makeup and wardrobe fittings or did you negotiate to have glam outside of your working hours?  Know exactly what the brand and the talent are committing to before signing on the dotted line.

Spread the Love. Programs that are heavy in social content and earned media need to build in other provisions in order to protect all parties. PR firms will want some sort of ‘blackout’ language so the talent is not conducting media interviews in a window just prior to the launch of your program. It cannibalizes their efforts and decreases the value of the person in the eyes of the outlets the PR team is trying to engage. Also, aligning on the type of content that will be shared in advance is essential. Don’t wait until launch day to finalize social language, images and/or content that is scheduled to go out to the masses. And you certainly don’t want your social content to be pushed out right before or after another one of the talent’s partnerships.

It’s also important to examine each potential social media platform and the tactics needed to best leverage each of them. Many marketers now include language to further strengthen exposure and engagement, whether it’s asking talent to pin their brand tweet or include a brand link in their Instagram bio for a specific time period. If the brand would like talent to use Instagram Stories or Snapchat, be specific about the number of snaps and stories, when they will be posted, and the specific guardrails of each snap or story (including saving screenshots of snaps/stories with the number of views). Remember though, any moving content featured on brand or talent’s channels (boomerangs, IG stories, Snapchat videos etc.) now incurs SAG fees if your talent is a member of SAG-AFTRA. Make sure to study up on the new rules and regulations so you are not caught with an unexpected expense or fine.

A smart upfront ask from a brand standpoint includes getting permission from the talent to put paid support behind their posts, and with that, access to their accounts so third parties can initiate the paid promotion process. Consider a length of time the social post stays up on one’s feed. Most contracts don’t mention this, but planning ahead could help save a potentially uncomfortable conversation down the line.

While the bigger picture takes up more of your attention, like with any relationship, it’s the little things that cause the headaches in the program day-to-day. Trust me; it’s worth sweating the small stuff.

 

 


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