Usage & Negotiation

If you’re producing content, chances are – you want the best talent involved in the project to achieve the best results for your clients. When you’re planning your project’s budget and terms, there are a few talent-friendly things to keep in mind about talent buyouts usage in perpetuity to make sure top working actors and content creators consider your casting.

My name is Maria Pendolino, and I’ve been a working pro voice actor for over a decade.

My voice has been featured in commercials and industries for brands like Hoover, Dannon, American Express, Monistat, and Pillsbury – among many others.

The Good News Is?

Top talents like me want to audition for your projects! When top talents see a casting posted on an online casting site or receive an email from their reps with terms like “all media in perpetuity,” – they are likely to pass. Why? Let’s talk about it!

Let’s start with some key definitions so we all speak the same language.

• What is “usage?” Usage is the use of a talent’s likeness in a creative piece. Their “likeness” could be a voice performance, an on-camera actor’s appearance in a commercial or a content creator’s sponsored post.

• What is “in perpetuity?” In perpetuity is an indefinite length of time, aka forever.

• What is “all media?” All Media encompasses all the types of media that exist today or could be invented in the future. (Will the International Space Station start broadcasting content in the night sky?)

• What is a “buyout?”A Buyout is a payment in exchange for a performance for a duration of time. The hiring entity isn’t going to track how many times a piece of creative airs. Buyouts are common in non-union talent contracts.

If you take away only one piece of information from this piece, I hope it’s this:  

Top working talents and content creators likely won’t agree to commercial talent buyouts usage in perpetuity across all media.

Why Does This Happen?

You pay a talent once to use their likeness in your creative, and then you can use that creative for however long you want without having to re-negotiate rates or renewals. Or, do any tracking of the piece of creative throughout its life cycle. And you can run it on any media platform that you choose. Simple, right? If you’re not a signatory to a collective bargaining agreement, it’s the wild west – there aren’t any “standard” contracts or governing bodies to refer to.

With stock footage availability and actors & content creators having broadcast-quality home setups, it’s easier than ever to generate a piece of content to traffic. And if a talent is working direct with a brand or production company, there may not be an agent or manager looped in to discuss and negotiate terms. If it’s a non-union project, collectively bargained union contracts and terms aren’t in play.

So, What’s The Problem?

While a buyout in perpetuity is simple, clean, and easy for clients and producers, it can be extremely detrimental to talents and content creators who work on commercial advertising projects – particularly those who are early in their careers and aspire to join a performer’s union in the future.

The moment a talent signs a buyout in perpetuity for all media on a piece of commercial creative, they could be hindering their ability to ever work in that product/service category again, especially if they eventually want to be considered for union campaigns.

Let’s Consider An Example

Let’s say that talent early in the career and not in a performer’s union agrees to a buyout in perpetuity across all media for their voiceover performance in a Coke spot. They receive a one-time payment for the usage of their voice.

Two years later, the talent has joined the union and is now offered the opportunity to be “THE VOICE” of Pepsi in a campaign. As is typical with union broadcast contracts, Pepsi wants exclusivity in the “Beverage” category. Technically, the talent cannot sign the Pepsi contract in good faith. Why? Because they granted the use of their voice, to Coke two years ago in all media, in perpetuity for that one-time payment. So, that Coke spot could start re-airing – violating the exclusivity clause that Pepsi has requested.

The talent has essentially created a forever conflict in “Soda/Beverages” and would never be able to enter into an exclusive agreement in the category. On larger campaigns and union projects, exclusivity and conflicts in a category are tracked very closely. Brands don’t want their talents to appear in their competitors’ advertisements.

So, What Can You Do?

You can do right by your talents and content creators by asking them for time-bound buyouts that reflect how long you or your clients ACTUALLY intend to use the piece. You can also limit the media to the platforms that the piece will actually be trafficked on.

Here are the Top Five Things you can do to help protect the future livelihoods of talented actors and creators:

1. Offer Time-Bound Buyout Terms for Commercial Advertising Projects Advertising doesn’t last forever. Offer time-bound commercial buyouts, with the option to renew at the end of the term.
2. Remember Talents In Budget Discussions When you’re starting a new project and discussing budgets, timelines and media with your clients, keep your talents in mind at the start of the conversation.
3. Make Realistic Decisions About How & Where Creative Assets Will Be Used It’s possible that at the time you put out a casting call or make inquiries with talents and content creators that you won’t know exactly how long or where creative assets will be used. That’s OK.
4. Use Simple Contracts Instead of Boilerplate Release Language  A talent should not be asked to execute all-encompassing releases that include verbiage or terms that are not applicable to a particular project.
5. Be Open To Negotiation With Your Talents It’s a two-way street. While there is an inherent power dynamic between a hiring entity and a job seeker, you can level the playing field just by being open to negotiation.

Are There Times When Buyouts In Perpetuity Are OK?

Typically, buyouts in perpetuity for the following types of media would not cause commercial conflicts for talents:

• Non-Broadcast Educational Content / Explainer Videos
• E-Learning Training & Webinars
• Telephony & IVR Systems
• Corporate / Internal Industrials
• Live Announcing or Voice of God recordings
• PSAs that promote awareness of an issue for the public good

Thanks for reading. And, thanks for remembering the working actors, talents and content creators in your next commercial advertising project.

Maria Pendolino is a working voice actor with more than eighteen years of performance experience. Maria has worked in theatre, television and film in addition to her voiceover acting career. You can learn more about Maria on her website, www.voicebymaria.com, and you can follow her on Instagram @mariapendo. Maria’s fun fact is that she and her husband Eric were featured on an episode of HGTV’s flagship show HOUSE HUNTERS.