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Our fifth minisode of the seventh season of “The Creative Influencer” podcast is available today for download on iTunes, Spotify, and premier platforms everywhere. In this minisode, Jon continues our deep dive into the nuts and bolts of Manager agreement terms with the Duties section. We take a look at the formal legal relationship between a manager and influencer, including exclusivity, notification of potential deals, and the manager’s authority to bind an influencer to a deal.
A transcript of the episode follows:
This is the fifth minisode of the seventh season of The Creative Influencer podcast. Today we’re going to continue our review of influencer management agreements, looking at the Duties of a Manager[MP1] . We’ll talk about the formal legal relationship between a manager and influencer, including exclusivity, notification of potential deals, and the manager’s authority to bind an influencer to a deal.
First, let’s talk about the Legal Relationship being formed.
It’s important to remember that when lawyers use the word “duties” they are talking about a very particular thing. Duties is lawyer-speak for “legal responsibilities.” Although it might sound like the scope of services, it is different.
So let’s set the scene: Congratulations, you’ve signed the management agreement and now have a manager. What is your legal relationship with your manager other than the fact that they are your manager?
Are you partners? Have you entered into a joint venture? In a word, “no.” In two words, “absolutely not!” Most agreements make it clear that you are not partners or joint venturers.
The management agreement will make this clear with language such as:
“Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties.”
Or, it might sound something like:
“This Agreement is not intended and shall not be construed or deemed to create a partnership, joint venture, association taxable as a corporation or agency relationship”
This is important for a few reasons.
First, it is making it clear to the Manager that they are not your employer and they do not control the terms of your services.
Likewise, the manager is entering into a service contract to perform their services as manager for you. We talked about this in our earlier minisode about Scope. What this means is that you are not your manager’s employer either. You are two adults entering into a contract, no more, no less.
Ok, with the legal relationship cleared up, let’s look at some of the specific duties.
First, what about Exclusivity?
Successful managers represent many influencers. But this doesn’t go both ways. Influencers don’t work with many managers. In fact, it is rare for an influencer to have more than one manager (or management company).
A typical influencer management agreement contains an exclusivity clause which prevents an influencer from working with other managers during the term of the agreement. The agreement will say something like:
“I hereby engage you as my sole and exclusive manager during the term and in the territory”
“I agree not to engage, appoint or contract with any other individual or entity to act on my behalf in the capacity in which I have engaged You or in any similar capacity for like-services.”
The agreement will also acknowledge that the manager works with many influencers. It will say something like the manager may
“render similar or other services to other individuals, firms or entities”
“Manager’s services are non-exclusive to the influencer and manager shall, at all times, be free to perform the same or similar services for others.”
In other words, the management agreement makes it clear that the manager can represent several influencers.
These kinds of clauses make sense because you want your team to speak with one voice.
Here is where it gets tricky. If the manager has ten clients in the health and beauty space, you are competing against those clients. You need to talk about this possibility and how it will be resolved. You don’t want feel like you are in a position where you are lining up like a child for your parent’s attention. There should be objective criteria. And that’s where you want to work with an attorney to decide what makes sense for you.
The next duty is Inquiry Notification.
This is all about how new brand deals and new work are communicated to you. In other words, this is about being kept in the loop.
An Inquiry Notification clause will be something like:
“Manager is the exclusive representative to negotiate deals, employment or other agreements pertaining to all Entertainment Activities;
And this is a two-way street. You also need to tell your Manager about any inquiries that come to you directly. This language is something like:
“Artist shall advise Manger of any and all deals, employments or other agreements submitted to Artist.”
Why is this important?
The precursor to the ability to veto a deal is the knowledge that a potential deal is in the works. You should know about all possible deals that come your way. If your manager isn’t obligated to tell you about all brand inquiries, then they can veto a deal without you ever knowing about it. You don’t want that—unless there is a very clear metric such as you won’t accept any deal from a specific brand, a specific industry, or under a specific amount of compensation, for example. But that is rare and the way I see it, it is better to be kept in the loop even when you may decide not to take a deal.
So be careful. Many management agreements say that the manager will “handle your inbound business inquiries.” While that takes a burden off of you, it also takes you out of the loop.
An Influencer should always have access to their deal flow and communications with brands.
Therefore, it is best practice to require the manager to communicate all offers so that the Influencer can decide what deals they agree to do.
Finally, the Authority to Bind is all about making sure you take deals that you want to take (and don’t take the ones you don’t want to do).
You never want to give the manager the authority to bind you to a deal you don’t want to do.
Ideally, you would have discussed the direction of you career with your manager and they should know what brands you want to work with. But, your manager will never know you as well as you know you.
It’s important to note that like inquiry notification, this is also a two-way street. Generally, this part of the management agreement will read something like:
“The Influencer shall not accept any offer of employment or engagement without first consulting with Manager for advice as to whether such offers are compatible with the Influencer’s career or beneficial to its development and advancement.
There will likely also be language saying that:
“Influencer shall promptly notify Manager if and when any Covered Contracts entered into or covered by this Agreement are renewed, modified or extended.”
Some managers will try to take total control of your deals, but you must push back. An influencer should always have the final word on whether you enter into any legal commitment. You should always be able to veto any deal. Stated another way, your consent should be required for every deal.
So there you have it. That covers Duties: Relationship and Authority.
In the next minisode we will take up the manager’s Fee.
The Creative Influencer is a weekly podcast where we discuss all things creative with an emphasis on Influencers. It is hosted by Jon Pfeiffer, an entertainment attorney in Santa Monica, California. Jon interviews influencers, creatives and the professionals who work with them.
Contact Jon and his team today.