You’ve Got Talent – Now What?

At any given time, the general public recognizes, and occasionally idolizes, certain individuals who exhibit unique excellence and a special ability to perform in a then-popular arena. Let’s call it “Talent”. At present, persons with Talent – the “Experts” – include, among others, authors, illustrators, actors, artists, musicians, professional athletes, scientists, programmers, teachers, and lecturers. Their Talent is generally in the form of intellectual works and performances (e.g., books, music, illustrations, computer applications, athletic ability). The Experts utilize their Talent to provide a product considered valuable by the consuming (and adoring) public. Like anything of substantial value, the Talent must be protected.

The initial thought and direction most Experts take is seeking registration of the Talent and/or the resulting product to protect against infringement and theft. Copyright, trademark, and patent registration are potentially an integral aspect to protecting Talent. Trade secrets are equally important for any individual or business, regardless of the size (that is a topic for a separate discussion). However, the most dangerous peril faced by Experts is not illegal infringement or theft – it is the perfectly ordinary and every day business contract.

Ninety-nine percent of the time, Talent will be the central subject of a contract during the Expert’s working life. The Expert will face contracting with a third party to provide the Talent in consideration for something of value (typically money and fringe benefits). The negotiation and execution of this contract could prove devastating to an Expert unless she is aware of, understands, and hopefully avoids pitfalls prevalent in such agreements. The questions become what will happen to (i) the Talent and the Expert’s rights to the Talent, and (ii) the Expert’s ability to work. And, these questions are applicable both during and after the term of a contract. The answers are not as obvious as one would think.

The basics of a Talent contract (and what Experts generally focus on) tend to be (i) what is the Expert obligated to do concerning the Talent, (ii) what is the third party expected to do, and (iii) what compensation package will be paid to the Expert. Without discounting the importance of those provisions, potentially more significant terms are also included in the initial Talent contract. For example, who has the final say on the finished Talent product, who owns the numerous rights associated with the Talent, who is responsible for enforcing the Talent’s state and/or federal intellectual property registrations, what can the Expert do outside of the contract, what rights does the third party have in the Expert’s other ventures, and how will disputes between the parties be resolved. These are a fraction of the issues the Expert will encounter. Importantly, as previously mentioned, they apply equally to the period of time during the contract, and after.

An Expert should not be surprised to discover that a typical Talent contract, expanding upon the above issues, will likely leave her with some compensation but very little if any of the rights in the Talent itself, and will restrict what she can do outside of the contract. Thus, it is paramount for the Expert to be aware of and address these issues when negotiating and entering a contract. All too often the excitement of a Talent contract and possible “pay day” will cloud judgment and conceal the Expert’s loss of rights to the Talent and restrictions on their activities beyond the contract. Sadly, the ill effects of the contract are frequently not discovered until it is too late.

Talent is developed over time due to considerable effort, resources and resolve. The real threats to this asset are not thieves or “knock off” artists. Rather, they are the very parties with whom an Expert contracts in a legal and seemingly innocuous transaction. Regardless of whether you consider yourself an Expert or not, it is essential that you protect your Talent through the course of negotiating and performing under a contract. You’ve got Talent – don’t lose it.