Dan and I counsel a number of bloggers on issues ranging from compliance (i.e., privacy issues, contest and sweepstake rules, FTC disclosure guidelines, and DMCA safeguards) to intellectual property protection (i.e., trademarks, copyrights, confidentiality agreements and NDAs). Because bloggers tend to be extremely vocal and have large platforms, there are many potential business opportunities out there for savvy bloggers. Nowadays, bloggers are getting paid to endorse products, design clothing, host parties, star in reality-based TV shows, model, pen novels, and generally slap their name on any number of products. Some bloggers do this on their own, but most work with the growing list of management agencies which have recently begun catering to this growing market of talent. As blogging graduates from infancy to adolescence, we can only expect this trend to continue. Unless you are simply blogging for the fun of it, it’s important to learn how to treat your blog like a business and a potential revenue source.
Our clients have worked with a number of agencies, managers and other representatives who, directly and indirectly, work with bloggers. We’ve seen countless representation agreements and we know what such agreements should and should not contain (and what terms are or are not “market” for bloggers). Below, please find a non-exhaustive list of issues to consider when negotiating a representation agreement.
Use an attorney (even if it’s not us)
Don’t be penny wise and pound foolish. The amount you spend on attorney’s fees should be significantly less than the value of the additional compensation, options, carve outs, and all the rest that your attorney negotiates on your behalf. Plus, they act as a buffer between you and your representative, which is often overlooked and invaluable service.
Most representatives will take between 10% and 25% of your earnings. Make sure you, however, that you are clear as to what constitutes “earnings” (i.e., based on net or gross figures).
Some representatives will agree to work with you only on an exclusive basis. Others may be willing to work with you non-exclusively, or may be willing to allow you to carve out certain activities, distribution channels or merchandise categories. It’s important to know exactly where the representative’s strengths and weakness lie so that you take full advantage of their expertise and steer clear of their short comings.
Most representatives will require, and rightly so, that for a pre-determined period of time after the agreement terminates or expires, you will continue to pay commissions on any deals you subsequently enter into with parties that you actually worked with during the term and, in some cases, with parties that the representative substantially negotiated contract with on your behalf simply introduced to you during the term. This time period is highly negotiable, but typically ranges from 2 months to 12 months or more. One key in negotiating this provision is determining exactly what constitutes “substantial negotiation” – a mere inquiry by the representative to a potential partner should not be enough to lock the blogger in post-termination. Another key is negotiating which parties are subject to the non-compete. If, for example, your representative negotiated a deal for you to write a column in Elle magazine (a unit of Hearst Publishing), that shouldn’t mean that all of Hearst Publishing is subject to the non-compete. You should be able to pursue, for example, an A&E reality show about your blog even though A&E is a Hearst property.
The issues above are just a small sample of the types of issues lawyers can help you understand and navigate. If you are thinking about seeking representation, or if you have been approached for representation, please feel free to reach out to us for help. Once you’ve signed a representation agreement, it is much harder (and sometimes entirely impossible) to undo certain provisions that may keep you from achieving success.
The information presented herein by the firm is for general informational purposes only and should not be construed as legal advice. You should not act upon any information contained within this blog post without first seeking specific advice from us or from your existing counsel. The firm makes no warranties, representations or claims of any kind with respect to any of the information contained herein