The problem with 'in perpetuity'
In. Perpetuity. 2 words that strike fear into the heart of every voice over artist, and for good reason.
In perpetuity (forever to you and me) is something that crops up a lot in voice over job breakdowns, as well as frankly across all creative industries. Everyone wants to make sure they're covered legally, and no one wants to worry about shelling out more money down the line or being unable to use something they paid for. But the issues it causes for voice over talent are numerable, and I hope to present here why voice artists have such a problem with this altogether Faustian arrangement.
These issues are:
1. It locks the voice out of future work (soft exclusivity)
2. It doesn't fairly compensate the voice over artist
3. Forever is a long time
Before I dig into these points though it's worth noting what IS okay. A lot of jobs will never have any type of paid media behind them. Paid media meaning TV slots, radio airtime, showings before and during YouTube videos, and so on. Think about a video that lives on a company website or YouTube page, that realistically gets a few thousands views over its lifetime. It's perfectly reasonable to leave this on the internet indefinitely. In this case in perpetuity essentially means "I don't want to have to remember to take this video down in 1 year and get in trouble if I don't”, which is a fair consideration, particularly for a small video seen by a few thousand people. Not only does the client not want to have to worry about this, but the reality is that they don’t really have complete control over whether it lives on the internet or not. Someone outside of the company could copy the video, clips could end up on organic social or somewhere else because, well, it's the internet, man. In this case if we're talking about archival use, then the below principals don't really apply, because the video isn't generating insane value that the voice artist is excluded from and it's not stopping the talent from doing future work.
So that's all good, but let's explore when it's not.
1. Soft exclusivity
While ‘in perpetuity’ makes voice over artists go pale and despair, the word 'exclusivity' makes them tread carefully with a smirk. It's an important factor to consider as clients rightly pay decent sums of money to have the voice doing their Coke ad not being world renowned as Pepsi's secret audio weapon. So, voice over artists, or their agents, keep diligent tabs on all these conflicts and exclusive arrangements when a campaign is being broadcast or promoted in some way. Keeping on top of this avoids the talent getting sued for breaking contract, but also frankly is just the right thing to do.
Every time exclusivity comes up, a voice over artist must do a calculation. Is the payment on the table (the fee for the actual job + a specific fee for exclusivity) worth foregoing work in that area for a given time period? Being offered $10k for a car ad might sound like an incredible amount of money on the face of it, but if that limits any other work remotely to do with cars for 10 years then it starts to look less appealing. In that case you're essentially capping your earnings on anything to do with cars at 1k per year for the foreseeable future.
Where it gets interesting is if the client doesn’t ask for exclusivity. In this case you can still legally go and do any other job in the same industry as you please UNLESS the new job wants exclusivity. Even if your currently live car campaign isn't exclusive, the fact that it's playing right now means you can't offer the new job the exclusivity and therefore are ineligible for the new work. But it's not the end of the world. I mean, it's just 4 more months of your 1-year contract left so you'll be able to do this new exclusive job soon.
But wait - it wasn't a 1-year contract, it was an 'in perpetuity' contract. This block on your eligibility for lucrative exclusive car campaigns will remain forever. For all eternity. To infinity and beyond. So that single job with an ‘in perpetuity’ contract has forcibly lowered the possible earnings of the talent for their whole career. Not a huge problem for one industry here and there, but by the time you’ve agreed to several, you’ve really cut off your own legs. You can still potentially do jobs for competitors who don't need exclusivity (provided they'll even consider you if you're the face of a rival brand forever), but anything that requires explicit exclusivity is off the table.
To summarise, taking an ‘in perpetuity’ broadcast deal even without formal exclusivity still plays out as a soft exclusivity deal, because any and all future exclusivity deals in that industry are off the table.
2. Fair compensation
Most people have next to no idea of the scale of budgets involved in advertising campaigns. The below graphic from the Guardian shows almost 8 billion pounds being spent in the UK in just 1 quarter of 2021!
The second thing people don't understand is how much of that budget is just on media, not actually creating the ad. It's fairly common for a large billion-dollar revenue business to spend 5-7 figures on the actual creative production of an ad, and then 7-9 figures getting it in front of people. To clarify, big companies are paying millions, tens of millions and hundreds of millions simply to make sure you see an ad on your tv, computer and mobile for a year or two.
It thus gets quite frustrating when a company who you're pretty sure is spending tens of millions on a campaign, is trying to skimp on the VO that holds the entire campaign together AND get rights to the voice over artist’s intellectual property indefinitely, often stating 'budget constraints'. It's a total false economy, that ties back to the value people think voiceover artists and freelancers in general provide. People feel weird paying someone £10k for a few hours of work but feel paying $6.5 million* for a single 30 second tv showing at the Superbowl is money well spent.
The value a voice over offers is not just the cost to buy the equipment and record the voice. It's being the way your brand speaks to potentially hundreds of millions of people. So, when your friendly neighbourhood voice over artist gets paid £2k by a multinational company to be the brand voice for a whole bunch of advertisements on an ‘in perpetuity ‘contract, your brain starts asking questions. It's not the end of the world when you see your ad everywhere in year 1, but when you see the ad played on repeat again in year 2, knowing the company is paying an additional few million to keep your voice playing, your brain finds its answer. Yes, you've been screwed.
In perpetuity contracts are a way of cutting the talent out of this value creation. Despite them contributing to the success of the extremely well-funded campaign, they are seen as one-off tools, rather than audio licenses. No one would expect to buy forever rights to a Beatles music track to use in an ad. The US union SAG-AFTRA fights back against this by necessitating residuals, but these jobs are becoming fewer and fewer as non-union work (even for larger commercials) becomes increasingly commonplace.
A midway solution is to agree timebound value proportional buyouts. Timebound in that they last a defined period and if any additional time is wanted after then a renegotiation can take place. Value proportional in that any time the voice over is creating more value for the client (playing the ad more times in the same period or the same amount over a longer period), they should be compensated appropriately for this. Of course, this doesn't mean voice over artists should always get wildly pricey buyouts. With modern advertising it's also possible to do relatively low budget ads on tv and digital to a few postcodes, so these will end up with justifiably more modest sums. The principle is not to always pay voice overs more, it's to pay them proportionately to the value they are bringing.
3. Forever is a long time
The final thing is that realistically no one needs rights to a voice forever. Most audio-visual creative changes so fast these days, and it's very rare to run the same content for more than a year, especially on digital channels. In my experience, in 90% of cases, 1-year is more than enough for all usage. And if you're one the of 10% who IS going to put the same ad on TV or YouTube for more than a year, then you are almost by definition someone who has the money to pay the voiceover for another year or two if you need it, because as we know, simply playing the ads is likely costing in the millions.
Missing out on value and losing out on exclusive options is frustrating. But what is doubly frustrating is knowing that despite the ‘in perpetuity’ contract, the client will almost certainly not actually use the voice over forever. You will lose out on work forever because of a job that realistically runs for 1-2 years if that. Because even if it's not running, the client COULD technically use it at any point, so legally you have no way to guarantee exclusivity to a new deal.
Nobody likes to close doors. Having options and the ability to change your mind is essential for being able to grow and develop. Maybe down the line you don't want to be associated with one company or type of product, and a time bound contract gives everyone the ability to make the necessary change. ‘In perpetuity’ says "no, we own your soul and there's nothing you can ever do about it."
So, if you want to avoid unnecessarily hurting voice over talent in deals, what can you do?
• Provide a time bound contract for anything involving media promotion spend
• Pay your talent (on screen actors, musicians, writers etc too!) proportionally to the value they're bringing
When this happens, creative talent can continue to exist into the long term, and we can all enjoy spending our time making great things, which at the end of the day is all we really want.
If any of the above interests you, you've spotted an inconsistency or you'd like to chat, please drop me a message at firstname.lastname@example.org. I'd love to hear from you.