May I Still Call Her Daddy? IP Considerations for When Influencers Outgrow the Brands That Back Them

Tue, 11/24/2020 - 12:00 | Charlene A. Azema

When they launched “Call Her Daddy” in 2018, Sofia Franklyn and Alexandra Cooper were relatively unknown. They were two New York City friends candidly dishing about dating and sex without any euphemisms on the internet.[1] Barstool Sports saw promise in their content, and signed the two to a three year contract.[2] Now, each has a million Instagram followers (plus or minus)[3] and together they have built a strong brand and a loyal audience by unabashedly offering their commentary and advice on modern relationships. Podcast listeners, self-identified as #DaddyGang,[4] affectionately refer to Franklyn and Cooper as the “Founding Fathers.”[5] To Barstool Sports, who signed Franklyn and Cooper to deliver their self-launched podcast on the Barstool platform, the duo were simply employees.[6]

However, by April 2020, it became clear to podcast listeners that things were not business as usual between Barstool and the Call Her Daddy hosts.[7] Podcast titles like “It’s Over” became cryptic allusions to a potential split or end to the podcast. Internet sleuths speculated on message boards about the beginning of the end. Shortly thereafter, the hosts posted to their Instagram account that they legally couldn't discuss what was happening with Barstool but encouraging fans to use the hashtag #FreeTheFathers. On May 17, the hosts revealed that the cryptic episode titles and appeals for freedom were about contract negotiations.[8]

By late May, Barstool founder Dave Portnoy began speaking candidly about the Founding Fathers’ desire to renegotiate their contracts or take the podcast to a different home.[9] In particular, he detailed Franklyn’s recurring demands that she own all the Call Her Daddy intellectual property.[10] This highlights an important phenomenon for media brands. Sometimes, they hire content creators who create content that blows up beyond the brand itself. While Barstool is a household name, so too now is Call Her Daddy. It’s not hard to understand why Franklyn and Cooper might feel entitled to more than the annual contract amount they negotiated when they were unknowns. After all, they can now earn as much as $20,000 per Instagram post.[11] The catchphrases they’ve coined in their show get printed on merchandise that sells out quickly. Yet, it’s also easy to understand Barstool’s position. After all, they took a financial risk on unproven talent.

The Call Her Daddy contract negotiation (which ended very well for Cooper, who increased her compensation significantly[12]) is not the only example of the talent outgrowing its parent brand. In 2016, several popular Buzzfeed content creators left to launch independent Youtube channels for increased earning potential and creative freedom.[13] Scott Rogowsky, the former host of the HQ Trivia mobile trivia game, is another example.[14] Rogowsky gained a significant fan following, and he became the face of the application.[15] The press’s interest in profiling Rogowsky led to threats from HQ Trivia’s CEO to fire him.[16] Clearly, not all brands handle the rising star-power of their talent in the same way. The increased popularity of the talent can unlock previously unavailable doors and revenue streams.

Taylor Lorenz of the New York Times observes that “Media companies have long acted as talent incubators, providing content producers name-brand recognition and access to a larger audience. But, as that talent builds a following on social media, the balance of power shifts. Often, talent no longer needs the media company to operate as a middleman, and many realize they could monetize their own platforms more effectively by themselves.”[17]

Many independent content creators lack experience with understanding and securing their IP rights in the content they create. Content creators should seek the advice of a qualified IP attorney to discuss brand and content protection.

Moreover, brands and content creators alike should consider all types of success-level scenarios when they sit down at the negotiating table. Depending on the industry, performance benchmarks and success indicators should be clearly addressed in the deal. This allows both parties to address the possibility of under and over performance. Relatedly, financial incentives should be tied to those benchmarks and indicators, in order to reflect both a brand’s risk and a content creator’s potential. All parties should discuss intellectual property rights upfront, in as much detail as possible. Parties should consider the type of IP that exists not only at the time of the deal, but what IP might be created during the contract term. Flexibility for assignment of rights and potential licensing of rights may need to be built in. Having an experienced attorney on both sides of the table can help balance bargaining power, and ensure that the final deal leads to the best outcome and relationship for all parties.

Editor: Catherine Holland

[1] https://www.thecut.com/2020/05/call-her-daddy-barstool-sports-drama.html

[2] https://www.barstoolsports.com/blog/1108118/how-did-two-blow-up-dolls-land-a-barstool-deal

[3] https://www.instagram.com/alexandracooper, https://www.instagram.com/sofiafranklyn

[4] https://www.thecut.com/2020/05/call-her-daddy-barstool-sports-drama.html

[5] Id.

[6] https://www.nytimes.com/2020/05/19/style/call-her-daddy-podcast.html

[7] https://www.refinery29.com/en-us/2020/05/9829124/what-is-call-her-daddy-podcast-drama-barstools

[8] https://www.refinery29.com/en-us/2020/05/9829124/what-is-call-her-daddy-podcast-drama-barstools

[9] https://nypost.com/2020/05/18/barstool-sports-dave-portnoy-talks-call-her-daddy-podcast-drama

[10] Id.

[11] https://www.nytimes.com/2020/05/19/style/call-her-daddy-podcast.html