Controlling the Spotlight: Promotional Clauses in Performance Contracts

The relationship between a talent, on one hand, and a studio, concert promoter, or venue, on the other, almost always extends beyond performance and payment. One instance where this plays out is the promotion of a performance itself. Performance contracts address promotional activities with promotional obligations clauses, morals clauses, and prohibited uses clauses.

This article provides examples of commonly seen clauses that govern the promotional elements of films and concerts. Unlike some European countries that recognize “moral rights” as part of their copyright framework, there is no comparable “morality” provision under U.S. copyright law. Instead, U.S. copyright law focuses primarily on economic rights. Thus, while the management of brand image is somewhat regulated by copyright and trademark law, it remains important for players in the entertainment industry to pay close attention to — and negotiate — the promotional terms in any agreement.

Promotional Obligations

Promotional obligations appear in many performance agreements and are frequently imposed on both parties, for example:

• An actor may be required to appear on talk shows or attend premieres to promote a new release.
• A studio might be responsible for providing a certain level of advertising or marketing support.
• A musician may need to use their personal social media accounts to boost ticket sales ahead of a tour.

Disputes over how a party carried out their promotional duties occasionally become headlines, particularly when a party’s conduct or comments could arguably damage a project’s financial success. Several recent high-profile cases may have implicated promotional obligations clauses, including:

• Scarlett Johansson v. Disney: Johansson sued Disney over its decision to release Black Widow simultaneously in theaters and on Disney+, which arguably hurt the box office and Johansson’s ultimate compensation. The resulting legal dispute turned on whether Disney had fulfilled its implied promotional obligations in support of a traditional box office release.
• Rachel Zegler and Disney: Reports indicated that Disney employed a social media consultant to oversee Zegler’s online activity ahead of the release of Snow White following some controversial posts she made, suggesting how studios increasingly view personal platforms as extensions of a project’s promotional campaign.

While contracts often link promotional services to a talent’s compensation, withholding payment due to insufficient promotion is rarely straightforward in practice, especially because written promotional obligations are somewhat vague. For example, typical motion picture talent agreements include the following:

“Before, during, and after the Term, Talent shall provide all promotional services as Company may request, including in connection with publicity interviews, press junkets, premieres, and personal appearances.”

And

“The parties acknowledge and agree that the Guaranteed Compensation includes compensation for all Pre-Production Services, Production Services, Post-Production Services, and Promotion Services.”

And

“Talent acknowledges and agrees that the sole remedy against Company for breach or default hereof will be the recovery of any actual, direct damages caused by the breach or default . . . Talent will not be entitled to seek or recover damages, or seek or obtain any form of equitable relief, including injunctive relief, or any right to enjoin or interfere with Company’s . . . promotion of the Picture.”

These ambiguous clauses illustrate how promotional duties are tied to the talent’s compensation. However, if a dispute arises, quantifying financial harm caused by a lack of promotion — or a disagreement about how the promotional activities were carried out — is often speculative.

Another example of the issues arising from promotional contingencies: consider the Snow White instance summarized above. Did the film’s lackluster box office performance have anything to do with Rachel Zegler’s social media activity, or might that narrative be a deflection pushed by the studio executives seeking to avoid blame? There are supportive arguments on either side, but quantifying damages in such a case is not clear-cut.

Morals Clauses

Morals clauses are common in most talent agreements. One high-profile case that likely implicates a morals clause issue includes Kanye West and the Grammys. Following a series of controversial social media posts and public behavior, West was removed from the 2022 Grammy Awards performance lineup. While no lawsuit followed, the decision likely stemmed from reputational concerns. The event’s cancellation of West was likely supported by a morals clause addressing public conduct and promotional compatibility.

A commonly used morals clause in a venue’s performance rider might state:

“If, prior to the completion of the Event, Talent commits, or is publicly accused of committing, any act or becomes involved in any situation . . .  which subjects the Talent or the Event to public disrepute . . . Promoter shall have the right to terminate this Agreement effective immediately. Promoter’s good faith decision on all matters related to this paragraph shall be conclusive.”

This clause gives the promoter broad discretion to cancel a performance based on public perception or reputational concerns before it causes significant financial harm.

Prohibited Uses

A talent who has sufficient negotiating leverage can use a prohibited uses clause in their agreements to protect their reputation. For example, headlining bands often require that brand logos and other undesirable materials are covered during their performance. A standard prohibited uses clause may be worded as follows:

“Prohibited Uses. Licensee shall not use, and Licensor expressly prohibits the use of, the Talent’s Image in connection with any: (i) pornographic, X-rated, or adult entertainment content; (ii) content promoting illegal activities; (iii) content containing hate speech or promoting discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age; (iv) content promoting violence or cruelty; or (v) any other context that Licensor reasonably determines could damage Licensor’s reputation or artistic integrity. Licensor reserves the right to refuse or revoke permission for any use that Licensor deems objectionable or inconsistent with Licensor’s artistic values.”

The Court of Public Opinion

The practical resolution for disputes involving promotional obligations is rarely found in court. While it remains important for parties and their representatives to vigorously negotiate the promotional expectations, the practical forum for resolving promotional disputes and crafting one’s brand image tends to be the court of public opinion. Public backlash, brand pressure, and online commentary may have more downstream impacts than any formal legal remedy. For these reasons, it’s important to set expectations at the outset of any engagement by including detailed versions of these clauses whenever promotional activities may be involved.