Whether the relationship between MCN organization and KOL is a labor contract, a labour relation, or a cooperative relationship/agency brokerage relationship is the first problem that MCN and KOL need to make clear when signing a contract.
The significance of clarifying the relationship between the two in the contract lies in that according to Article 25 of the Labor Contract Law of China, except Article 22 (special training) and Article 23 (confidentiality obligation) of the Labor Contract Law, the employer shall not agree with the employee to bear the liquidated damages.
Once the relationship between MCN and Cole is recognized as a labor relationship, the penalty clause in the contract between them will be recognized as invalid because it violates the mandatory provisions of the law.
It is also based on this that in almost all legal disputes caused by KOL's breach of contract, KOL will advocate a labor contract relationship with MCN institutions.
. In order to avoid the negative consequences of the relationship between MCN and KOL as a labor contract, on the one hand, MCN needs to specify the nature of its contractual relationship with KOL in special terms or in the title of the contract;
On the other hand, MCN should formulate detailed rules different from normal labor relations in KOL's income distribution, work form, behavior restriction and welfare treatment. In order to avoid being found by the court that there is actually a personal attachment relationship between the two people, thus establishing a labor relationship.
Second, the ownership clause of virtual assets.
The virtual assets here not only refer to data assets such as KOL's platform account and historical records, but also include KOL's intellectual property rights involved in content production, as well as a series of "identity rights" such as KOL's foreign stage name and specific personnel.
The first two have been noticed by most MCN institutions, and many MCN institutions will stipulate in the contract that all the rights of KOL's account and works created during the signing period belong to the platform.
This agreement has precedents recognized by the court in practice. In the civil judgments of (20 18) Guangdong 010473 and (20 15) Hu Yiyi (Zhong Minzi) No.2090, the court confirmed the rationality of the ownership of MCN institutional accounts according to the terms of the contract.
However, it should be noted that in the civil judgment of (20 19) Su 13 4 102, the court emphasized that the account itself has certain personal attributes, and finally awarded the ownership of the account to KOL.
How to avoid spending huge resources to support the account to become someone else's wedding dress?
After analyzing the above judgment, we think that MCN should not only emphasize the ownership of account and related intellectual property rights, but also take a series of actions to strengthen the rationality of its own account ownership when signing a contract with KOL.
Specifically, MCN should try its best to apply for an account in the name of its own organization. At the same time, it is necessary to implant the trademark or logo of MCN in the avatar and release content of the account to strengthen the connection between MCN and the account.
It is worth noting that in recent judicial practice, more and more courts have begun to emphasize that according to the user service agreement of the platform where the account is located, the ownership of the account belongs to the platform, and the account registrant only enjoys the right to use, and may not rent or transfer it without authorization. Under the downward trend of this referee, MCN institutions can consider starting with account control and income dividend.
For example, an institution can replace the expression or proposition of "ownership" with "use right"; You can agree on the calculation method of account value and cash compensation to the organization when both parties terminate the contract; It can even be agreed that KOL shall not continue to use the accounts involved in the cooperative relationship.
Of course, the issue of account competition between MCN and KOL is far more complicated than that discussed in this paper, and corresponding provisions need to be set up in combination with commercial considerations.
As far as the "identity rights" such as stage names and specific characters are concerned, in the Internet environment, many times, the audience is not concerned about a real character, but a specific character, which is often the key to KOL drainage.
For MCN, KOL's stage name and specific persona can be protected in the form of registered trademarks, and through the terms of the contract, it is stipulated that KOL shall not engage in public activities in the name of stage name outside the organization, and shall not shape a specific persona through specific behaviors and costumes, so as to avoid the loss of a lot of traffic after KOL leaves the MCN organization.
Three, clear terms of liquidated damages calculation method
According to the previous big data analysis of KOL's job-hopping behavior, we found that all the "sky-high" liquidated damages judgments with support rate over 90% or reward amount over 5 million basically have the same feature: there is a clear calculation method of liquidated damages in the contract between MCN organization or live broadcast platform and KOL.
In the case of Betta v. Wei Zhen (Shen Wei) for job-hopping breach of contract, which caused a heated discussion in the industry, Betta Platform won a high compensation from the court by virtue of a clear calculation method of liquidated damages (the main liquidated damages are 36 times of the highest monthly income).
The following methods are generally used for calculating the typical liquidated damages: firstly, select a specific statistical index (such as KOL monthly income/incentive share /MCN agent marketing investment/cooperation cost, etc.). ), and then multiplied by a certain multiple as punitive damages for breach of contract.
The advantage of this clause is that it can obtain a specific and well-founded amount of liquidated damages, and the court can intuitively compare liquidated damages with KOL's income level to measure whether the corresponding calculation standard is obviously unfair.
However, there are also some shortcomings-for KOL, which has a short performance time and less income and institutional investment, the amount of liquidated damages obtained by this calculation method is not commensurate with its subjective malice in breach of contract.
In this case, the MCN mechanism can adopt the design of selective punishment clause,
Below we provide an example:
Party B (KOL) shall pay liquidated damages to Party A (MCN) in case of the above-mentioned breach of contract. The calculation method of liquidated damages is as follows: 1. N times of Party B's highest monthly income (including but not limited to cooperation fee, bonus share and advertising income) during the performance; 2. The cooperation fee that Party B's non-performance period accounts for n times of the total cooperation period agreed in this contract;
3. Fixed penalty of RMB Z 10,000. Determine the liquidated damages according to the higher amount in the above calculation method.
Four. Exclusive cooperation clause
Based on the characteristics of the content industry, restricting the cooperation between KOL and the outside world has become a commercial practice in MCN industry. Usually, MCN institutions need to explicitly exclude the cooperation between KOL and other institutions in their contracts with KOL.
It is worth noting that in the setting of such terms, the scope of "cooperation" should be as clear as possible to avoid disputes.
We also provide the following examples:
Without the written authorization of Party A (MCN), Party B (KOL) shall not cooperate with any third party, including but not limited to promoting for the third party in personal or institutional accounts, publishing the content created or about to be created by Party B on the platform of the third party, authorizing the third party to promote for or in the name of Party B, participating in the online and offline activities of the third party and any act of expanding the commercial interests of the third party by using Party B's name.
This clause can sometimes play an unexpected role in job-hopping litigation. In the case of contract dispute between Zhang and Tencent, the court held that although the contract could not take effect on a third party, KOL was not broadcast live by a third party, which was the basis for both parties to perform the contract. Therefore, the decision not to allow HongFa Zhang to conduct live broadcast activities on any third-party platform during the contract period has actually played a role in banning it.
In addition, most MCN institutions will also set up a clause similar to "non-competition", that is, KOL shall not cooperate or conduct business with other similar institutions for a certain number of years after the termination of the contract. Is such a clause valid? According to our case studies in various places, most courts think that this agreement is invalid, but there are still a few courts that support the effectiveness of such clauses.
Verb (abbreviation for verb) silent period clause
Litigation often takes a long time. For MCN platform, when it comes to litigation with KOL, the cooperation period stipulated in the contract between the two parties has often passed, and MCN can only get some financial relief in fact, and setting the silent period clause can provide a certain possibility for MCN to ask KOL to continue to perform the contract to some extent.
Specifically, MCN can stipulate the following clauses in the contract: The time for negotiation or litigation between Party B (KOL) and Party A (MCN) due to cooperation disputes is not included in the cooperation term of both parties. From the date when one party sends a written consultation notice to the other party or Party B suspends normal live broadcast activities due to disputes, whichever comes first.
Six, clear terms of work quality requirements
Although it is difficult to quantify the quality of content creation, MCN institutions should still set up provisions to clarify the quality of KOL's work, especially when KOL enjoys greater freedom in the process of cooperation. Otherwise, it is easy for KOL broadcast live by several platform organizations to sneak into the cooperation time through sleeping, simple chatting or keeping silent during the live broadcast, which will harm the interests of MCN organizations.
MCN organizations can safeguard their rights and interests with reference to the following terms: Party B (KOL) promises to diligently cooperate with Party A (MCN) to ensure that the number of online users/clicks/readings of live/short videos/notes is not less than N, otherwise Party A has the right to ask Party B to improve the content quality according to Party A's requirements. If the relevant indicators are still not up to standard after Z requirements, the monthly cooperation amount of Party B shall be calculated as X%.
Seven. Behavior restriction clause and recourse clause
As a facade, KOL's words and deeds and creative content directly affect the image and interests of MCN institutions.
Within a reasonable range, MCN can agree that KOL restricts his freedom of creation and behavior to a certain extent. For the damage caused by KOL's works or private actions to the economic interests or reputation of MCN institutions, MCN institutions can deal with it through contract.
Recover from KOL to make up for the loss: Party B (KOL) agrees that its creative works can only be released to the outside world after being reviewed and approved by Party A (MCN).
Party B promises that the process and content of its work will comply with local laws, regulations and administrative rules, and will not infringe any rights and interests of any third party. Party B promises that during the cooperation with Party A, its words and deeds must comply with laws and regulations, follow good customs and habits, and conform to public moral standards.
If Party A's institutional interests or reputation are damaged due to Party B's creative content or words and deeds, Party A has the right to immediately terminate the cooperative relationship with Party B and recover all losses from Party B. ..
In fact, the design of the above seven key clauses is only a basis for MCN institutions to protect their own rights and interests in cooperation with KOL.
In order to enhance each other's commercial interests, both MCN institutions and KOL need to define each other's rights and obligations through a perfect and reasonable agreement. More importantly, the two sides should treat each other with sincerity, cooperate on the principle of honesty and credit, reduce unnecessary friction and achieve a win-win situation in business.