Educating Content Creators on Agreements: Essentials and Industry Best Practices

What is a Content Creator Agreement?

A content creator agreement is a legally binding document between a company and an individual or team of individuals who create content in exchange for payment. It outlines the terms and expectations of the working relationship, including payment, copyrights, confidentiality, and termination rights.
For companies who hire content creators, content creator agreements clarify the relationship and protect intellectual property rights . In the event that disputes arise, these documents can guard against costly litigation. They are also important for creators in protecting their work and ensuring fair compensation. Though each contract is unique, most contain agreement on the ownership of content, compensation details (including how and when payment will be rendered), content delivery dates, and termination rights.

Key Components of a Content Creator Agreement

The core components of a content creator agreement should include specific payment terms, details regarding intellectual property rights, confidentiality clauses, and conditions for termination. When articulating the process through which content is to be published, the agreement should also allow the company to republish that content on different mediums.
The details of payment cannot be understated. The company should state the amount owed to the creator in the currency to be paid, the timing for payment, and the method by which payment will be delivered. Most typically, this might be a check or electronic wire transfer. However, if the creator is pitching, contributing, or being paid per article or relationship, then the frequency of payment must also be defined.
The company will want to retain some rights to delete the creator’s content or alter it to make it more appropriate for their site or blog. The content creator generally has no say in this. It is common for companies to reserve the right to make changes at any time to any content submitted for publication or to discontinue publication without notice to the contributor. But this does not mean the creator’s rights should be totally foregone. In crafting the agreement it may be important to specify that the creator will receive notice of any change, and that they have the right to have the content removed.
Confidentiality language is also common in addition to a Non-Disclosure Agreement. It is common for companies to place information about their audience or brand privacy concerns within a content creator agreement. The rights the creator is granting the company to freely use the creator’s content often extends to third parties as well. In a modern business context, it is common for companies to reserve the right to make content available to third parties, or to allow third parties to post links to a company’s website, so the creator waives the right to be paid by the company for the use of their content by third parties.
Termination conditions should be clearly defined to allow either party to terminate the agreement without penalty. While there may be a "no-penalty" provision in the contract, the contract should also specify whether the company can immediately terminate the agreement or if the creator will receive a set number of days prior to termination.

IP in a Content Creator Agreement

Intellectual Property rights should clearly expressed in a Content Creator Agreement. In the absence of a clear agreement addressing ownership and licensing of the content, both the Creator and the Company can be surprised about who owns or has the right to further use of the content. This becomes an especially important issue if the Company wants to use the content again at some future date; in other words, if the Company seeks an additional license to use the content. However, the issue may be equally important to the Creator, especially in cases where there are multiple Creators collaborating to produce content.
The issues becomes even more complicated when images taken by the Creator are part of the content for which the Company may seek rights. Some types of images require additional consent for use, such as location, property and likeness. The intent of the contract should not be to provide for a quality check of each image before use, but to define what the Company can do with each image, whether the images can be and are the sole property of the creator, and whether the Company is under an obligation to ask the Creator’s permission before using the content again, as well as whether the Company is under an obligation to ask the Creator’s permission before using the images a separate use.

Compensation and Payment Terms

A content creator agreement will typically contain a section that describes how and when the creator will be paid. While the stakes are higher with media owned by the content creator, such as a YouTube channel, these terms are equally essential for content supplied to a publisher or producer, especially where the payment is contingent upon projected returns or a creation bonus is awarded. Many content creator agreements specify that the creator will share in royalties generated by their content. Whereas the typical royalty in the music space is 15%, content creator agreements often set the royalty rate at 50% of the per-unit rate. This is because, for a content creator who owns all rights to their content, the entire revenue from a sale or stream counts as a royalty payment. For example, a music artist who receives an upfront $1.29 in exchange for the download of a song on iTunes would necessarily view the full $1.29 as a royal payment because, after paying its share, iTunes would keep nothing. By contrast, a song writer who receives pay only to write the song could not view the full $1.29 as a royalty payment because Apple, the record label and the recording artist would also receive a share of the payment. Flat fees are also a popular means of compensation for content creators. These amounts usually do not take into account the revenue generated from the creator’s content but pay upfront in exchange for the rights to distribute or publish the content. Flat fees are especially useful when the creator and producer have different expectations regarding the projected popularity of the content. In these situations, both parties have more information about the success of the content than anyone else and so can agree upon a predictable rate for the content. Performance-based payments award the creator with a bonus based on the platform-specific performance metrics of their content, such as views, engagement, watch time, audience retention, shares and likes. While this method for compensation would initially appear to be in the creator’s best interest, it might actually be unworkable in some instances. For example, a game design blog might generate high traffic numbers, but that traffic may be for an outdated game release or poorly performing title, both of which would significantly reduce the value of the web traffic.

Common Missteps, and How to Avoid Them

When it comes to content creator agreements, there are some common pitfalls to be aware of. Here are some of the most frequent mistakes and how to avoid them:
Failing to properly define the scope of the services: The agreement should clearly describe the services to be performed by the content creator, including any specific requirements or guidelines they must follow. This can help avoid disputes later on over what work was expected.
Not addressing ownership and use of the content: The agreement should specify who owns the content that is created and what rights the parties have to use it. For example, it should address whether the content creator retains any copyright or other rights in the content, or whether the company owns it outright.
Not considering exclusivity: Depending on the nature of the content and the relationship between the parties , the company may want the content creator to agree to an exclusivity provision. This means that the content creator cannot work with competing brands or products for a certain period of time.
Not discussing compensation and payment terms: The agreement should outline how the content creator will be compensated for their services, including any fees, royalties, or other forms of payment. It should also specify when payment will be made and whether there are any conditions that must be met before payment is due.
Not addressing termination: The agreement should specify under what circumstances either party can terminate the agreement, as well as what happens to the content and the parties’ rights and obligations upon termination.
In conclusion, a well-drafted content creator agreement can help avoid misunderstandings and disputes, and protect the interests of both parties. By considering these common pitfalls and addressing these issues in the agreement, companies and content creators can set clear expectations and minimize legal risks.

Negotiating a Reasonable Agreement

As those in the industry know, a content creator agreement is negotiated between the brand in question and the content creator. Do not shy away from advocating for yourself if you believe you are not being fairly compensated. Presented below are several approaches to negotiating a fair agreement:

1. Determine the value of your content.

First, for both you and the brand, value is subjective. What you perceive as a fair price may be too high and out of budget for the brand. Conversely, the brand may be willing or be able to pay more for your content than you are asking. However, unless you understand the value of the content you are producing, you may not be able to communicate to the brand that the price you are asking for is reasonable and justifiable. Every content creator, no matter their experience level, should consider the following questions: Having a personal idea of the value of your work allows you to not only appreciate what you are worth, but act as an informed partner when negotiating a fair deal with a brand partnering with you.

2. Understand the brand’s needs.

While it is important for you to convey the value of your work when negotiating, it is also important for you to consider what the brand is looking for in the partnership. Understanding both your and the brand’s needs will allow you to find common ground and negotiate a fair agreement for both parties.

3. Seek professional legal assistance.

Finally, although law firms like Mintz are not the only source for help, I would be remiss if I did not tell you that hiring an attorney can be a significant asset during your negotiation. While you may not be financially inclined to hire an attorney on retainer for your negotiating process, many law firms, including Mintz, offer a flat fee or project-based payment structure that can be of great benefit to you when negotiating an agreement with a brand. Having an attorney review your content creator agreement before you sign is the best way to ensure that you are signing an agreement with a brand that you feel good about; an agreement that even a professional would consider fair.

Legal Considerations and Compliance Statutes

Legal considerations are, of course, paramount in any kind of agreement and are no less so in a content creator agreement. Unless expressly stated otherwise, the content creator agreement will usually be interpreted under the substantive law of the state in which it was entered into. Many states will treat a "choice-of-law" clause as valid if the substantive connection is reasonable. A "venue" provision designating the proper court in which to bring an action may be included.
Where a dispute arises, many states employ a test to evaluate whether a court has personal jurisdiction over a nonresident defendant, which test considers whether the defendant has sufficient minimum contacts with the forum state such that maintaining the lawsuit would not offend traditional notions of fair play and substantial justice. If the consideration for the contract is a payment to be made in a state other than the state where the contract was made, the contract must clearly state when the payment will be made and where. For example, a provision stating that a payment will be made as soon as the content creator has met certain objectives in another state is insufficient unless the objectives can also be met in the state where the contract was made. A requirement that the payment be sent to the content creator’s home state is insufficient, although requiring payment to be "delivered" to the content creator at his place of business in another state is sufficient.
Plaintiffs who are not bona fide residents of the forum state are usually required to post a bond in order to initiate litigation in any court other than a court where they are residents. Forums will usually define bona fide residence as the place of the person’s "true, fixed, permanent home."
Additional legal considerations include the substantive law of the forum state, statutes of limitation within the forum state, whether a non-resident can be served in his own state of residence, and whether the forum state will enforce default judgments rendered by courts in the forum state.
If the content is recognized as "advertising" or "commercial speech" by the forum state (e.g., Subway, supra ), the content creator’s ability to receive compensation depends on whether the content itself complies with the forum state’s advertising laws. Known as a "right-of-publicity," the laws require that the content creator ensures the appropriateness of the content by carefully reviewing any and all laws and/or regulations regarding promotional content. For example, many states prohibit "misleading" or "deceptive" advertising, and some states require disclaimers in print advertisements. Certain types of content, such as weight loss or "get rich quick" schemes, may be subject to additional regulations (like the Federal Trade Commission’s guidelines on misleading advertising and marketing ). The content creator agreement should state that the content creator is responsible for ensuring that the content complies with all applicable rules and regulations.
Many states regulate the types of content that may be used in advertisements of dietary supplements, food, over-the-counter drugs, and medical devices. Some states, like California and Oregon, also have laws regulating the regulation of health claims made in advertisements. As discussed previously, advertising must be "truthful, nondeceptive and fair." Under the Federal Trade Commission Act, the content creator must possess "adequate substantiation" to support any claims made in the content. The content creator agreement should also state that the content creator is responsible for obtaining the employer’s approval on any and all content posted online. The approval provisions should include a timeline for the employer to provide its response, and should set forth the process for obtaining the employer’s approval.

Examples and Templates

There are many online resources providing examples and templates for content creator agreements. For example , Rumble has posted an influencer agreement template here. Note, however, that it is essential to customize a template document to your particular needs and circumstances.