A 10-year liquidated damages of 100 million yuan for one signing, it is not easy for "net celebrities" to leave
MCN agency contract chaos investigation
● In recent years, the number of MCN agencies (Internet celebrity brokerage companies) has increased sharply, with only 160 in 2015 and more than 28,000 in 2020.
Behind the rapid development of the industry, there are hidden chaos such as some MCN institutions circling money under the banner of "training internet celebrities", unreasonable proportions, and "net celebrities" facing sky-high liquidated damages when they leave their jobs.
● Some MCN organizations specialize in live show live broadcasts. When signing the contract, they propose to live broadcast 60 hours a month to get the base salary. However, there are many additional conditions in the actual operation process, such as the number of viewers in the background and the average daily gift income. Wait.
In this case, many anchors can’t even get the basic salary, not to mention the promotion.
● The ideal relationship between MCN institutions and “net celebrities” should be a win-win situation for both parties, rather than trying to overwhelm the other.
At present, the chaos of MCN agency contracting is not only a legal issue, but also involves many issues such as ethics and culture. It needs to be comprehensively managed by creating a good cultural environment, market environment and legal environment.
□ Our newspaper trainee reporter Sun Tianjiao
□ Our reporter Wen Lijuan
Submitting account numbers and authorship rights, signing long-term contracts, stipulating excessively high liquidated damages... This is the experience of Beijing lawyer Li Heng when he discussed cooperation intentions with an MCN agency (an internet celebrity brokerage company).
Li Heng has been engaged in the research of the entertainment industry for many years. Because he often publishes original articles on various social media platforms, in recent years, he has received olive branches from more than 30 MCN organizations and wants to promote him as a "net celebrity."
However, the series of unequal demands unilaterally put forward by the MCN institution made Li Heng feel very speechless.
Li Xuezheng, director and producer of Golden Shield Film and Television Center, pointed out that the MCN agency is an extension of film and television brokerage companies, and the business models of the two are essentially the same-monopoly talents, 28% of income, and even 19% of "upside-down" labor. Remuneration and creating topics for publicity, while the threshold of MCN institutions is relatively lower. In recent years, it has developed rapidly, which is prone to breed more chaos and urgently needs to be corrected.
Public data shows that since 2015, the number of MCN institutions has continued to increase.
In 2015, the number of MCN institutions in my country was only 160; in 2018, it increased to 5,000; in 2020, it exceeded 28,000.
Behind the surge in numbers, what kind of chaos is hidden, and how should they be managed?
A reporter from the Rule of Law Daily conducted an investigation on this topic recently.
Unreasonable proportion of work accumulation
Faced with astronomical liquidated damages when resigning
Not long ago, Chen Xiaowei, a guy in Taiyuan, Shanxi, resigned from an MCN agency.
Although the "net celebrity" dream was broken, he still breathed a long sigh of relief-finally got away.
In February of this year, Chen Xiaowei, who had the dream of "net celebrity", signed a contract with an MCN agency on the recommendation of a friend.
At the beginning, Chen Xiaowei was a "good guy" who recommended products in short videos, and received some information stream advertisements, such as toothpaste, scrub, facial mask, etc.
Later, there were no business orders for several weeks, and due to economic pressure, he took over a life science account from the company to undertake choreography and operation tasks.
It didn't take long for the account to increase by nearly 400,000 fans, and the interaction became more active.
"But whether I'm a master or operating a video account, no matter how much merchandise is sold or how much interaction increases, I can't get any additional income. Except for the basic salary of 3,000 yuan a month, other income depends on advertising commissions. How about The commission is entirely up to the company." Chen Xiaowei said.
He told reporters that in this MCN organization, there are many people who are "badly" than him.
Some young people who have just graduated from art studies specialize in live shows and do not bring goods. Unless there are very large fans and fans are willing to pay for gifts during their live broadcasts, they can only get a basic salary, which is only 2,000 yuan a month.
But everyone's workload is very large.
"You have to live broadcast for 8 hours or more every day. You have no choice what products you want to broadcast. They are all products selected by the company. The narrations are similar." Chen Xiaowei said. In addition, the company mandatory requires every anchor to shoot a video every day. , The anchor works more than 12 hours a day.
Chen Xiaowei was lucky because he was able to leave the job smoothly.
There are many people who want to leave but are restricted by various conditions and find it difficult to leave.
Video blogger @林晨同学 is one of them.
One day in April of this year, @林晨 student posted a video on his account, saying that he faced a series of difficulties after signing the MCN agency, which made him "no way to continue making videos."
These dilemmas include: the company insisted on placing product advertisements in the video. After signing the contract, the company did not get the operating resources promised by the company, and the company did not provide any salary. After he refused to plant the ads, the company demanded a sky-high price of 3 million yuan. Liquidated damages.
Immediately afterwards, many bloggers on the same video website also posted videos one after another about their disputes with the MCN organization. High liquidated damages was a problem they repeatedly mentioned.
Many bloggers said that they were scared by the sky-high liquidated damages, so they could only choose to continue to be patient.
So, since the income share is so unreasonable and the liquidated damages are so high, why do many people still sign such contracts?
"Some young people at first saw the resources of the brokerage company, even if the income share was low. However, they did not expect that the resources were not as many as they thought or could not be used for them. After a long time, they realized the contract problem. When the contract is terminated, it can only be daunted to face the high liquidated damages." Li Xuezheng said.
He has become accustomed to this. He knew a college student from an art school before, and he signed a contract with a brokerage company before he graduated. The contract lasts for 10 years and the penalty is as high as 100 million yuan.
Li Xuezheng told reporters that there are some bad brokerage companies that have taken a fancy to the "logic" in this, and instead use this as their own way of making money-by charging liquidated damages to maintain the company's development.
"Those bad brokerage companies deliberately squeeze the contractors and ask them to resign and pay high liquidated damages."
Can apply for discretionary reduction of liquidated damages
There are many disputes on the issue of vesting compensation
In Li Heng's view, the MCN agency's requirement that the income be divided into two to eight and nineteen is obviously an unreasonable clause, and the high liquidated damages of millions or even tens of millions of dollars are often not legally supported in judicial practice.
He analyzed that according to relevant laws and regulations, liquidated damages are generally negotiated by both parties. If the negotiation fails, the actual loss shall be based on the contract. If the contract is not agreed or the agreement is unclear, the actual loss is based on the actual loss, but generally does not exceed 30% of the loss; the parties claim that the agreed liquidated damages are excessive. If Gao requests an appropriate reduction, the court shall make a ruling on the basis of actual losses, taking into account the performance of the contract.
Xie Hongfei, a researcher at the Institute of Law of the Chinese Academy of Social Sciences, believes that based on the concept and principles of freedom of contract, MCN institutions can stipulate that the signatory sign a contract for more than 10 years through the contract, and impose high liquidated damages.
However, in the process of contract performance, because this kind of contract involves the professional freedom of "net celebrities", it should be determined that they have the right to terminate the contract, and they should bear the corresponding liability for breach of contract, and compensate the MCN agency for various training and promotion expenses.
When the liquidated damages are too high, the "net celebrity" can request the court to lower the liquidated damages at its discretion.
It is not just the issue of high liquidated damages. The reporter's investigation found that “net celebrities” who want to leave the MCN organization will also face a series of problems, one of which is the focus of contention: the ownership of the account.
In May last year, the food blogger "Xiang Xiang" released a video stating that after he proposed to terminate the contract with the MCN agency he signed, the latter had frozen some of his social media accounts.
When the two parties failed to discuss the account ownership, the video account with more than 4 million fans was not updated after May 25 last year.
Finally, the blogger abandoned the account of "Xiangxiang Great Operation" and registered a new account named "Thank you Xiaoxiang" to start the video business from scratch.
"Whether it is an MCN institution or an individual'Internet celebrity', the core of their interests lies in the account. From my experience in representing the case, if it is said that the individual can get the account back by paying more money when the contract is terminated, the vast majority of the parties are also willing "Said Li Zhenwu, founder of Star Entertainment Law and entertainment law lawyer.
According to Li Zhenwu, the issue of account ownership is a difficult point that has not been properly resolved by the law.
In judicial practice, the court usually considers that it is more reasonable to award an account to an “Internet celebrity” based on the account’s personal dependency and the consideration of maximizing the benefits of the account; while the “Internet celebrity” needs to pay the liquidated damages at the same time. Take an extra sum of money to "redempt" the account.
"In practice, the unavoidable problem of'buying accounts with money' has contributed to the MCN agency’s regulations on high liquidated damages to a certain extent; on the other hand, court judgments can only determine the attribution of the account, but the value of the account is difficult to estimate. This has also led to the possibility that even though the account was awarded to the "net celebrity", the two parties could not dispute over the amount of compensation." Li Zhenwu said.
Li Heng also felt deeply about the issue of ownership.
A few years ago, an MCN agency wanted to sign a cartoonist friend of its own as its "net celebrity", and claimed that it would use various resources to vigorously promote its comics in the future.
Li Heng checked the contract sent by the other party and found that the other party indicated that the contract was a commissioned creation contract, that is, the company commissioned a cartoonist to create comics, and the copyright of the comics belonged to the company.
"In addition, the contract clearly stipulates marketing restrictions. Only the license fee for the reprinting and dissemination of comics on the Internet and the publication of physical books will be shared by the comics. Other film adaptations and derivative development proceeds belong to the company. The latter is exactly one piece. The "big head" of the income of the work. What is even more annoying is that the contract requires the cartoonist to give up the right to sign, and the comics are signed by XX Comics in the form of "editor-in-chief"." Li Heng said.
In Li Heng's view, this contract is clearly a "bullying", and once it is signed, there will be endless troubles.
The industry is developing too fast, good and bad are mixed
Make money under the banner of training internet celebrity
Lin Hui is now working for a large MCN organization in Hangzhou, Zhejiang. When talking about contract issues, she told reporters: “Generally, MCN organizations use standard template contracts, and the terms of the share ratio, contract period, and due obligations are the same. Unless the contract is signed. Red' has a certain reputation on the Internet, or has reached a certain number of fans, and it is possible to influence the content of the contract and allow the organization to make concessions on the conditions."
In Lin Hui’s view, an important reason for the frequent negative news of MCN institutions is that the industry is developing too fast, MCN institutions are uneven, and some small companies with poor resources and qualifications are easy to generate in the process of signing "net celebrities" and operating accounts. Non-compliance.
As an industry insider, Lin Hui understands the "pits" dug by some MCN agencies-for example, some MCN agencies specialize in live show shows. This section has the most basic population, usually with a large number of "experienced" anchors.
When signing a contract, the company may propose to live broadcast 60 hours a month to get the bottom salary. It seems easy to do it, but there are many additional conditions in the actual operation process, such as the number of viewers in the background and the average daily gift income. Even the money spent by the company to brush traffic has to be counted towards the anchor.
Under this circumstance, many anchors can't even get the basic salary, let alone get the basic salary.
"There are also some small MCN institutions that are circling money under the banner of'training internet celebrities.' For formal MCN institutions, they usually have a systematic training process. After the training is completed, you will be able to enter the organization and become its "stars". Generally, people who take the initiative to come to the door and offer to pay a certain fee for training to ensure the future development of the contracted "Piping" are cheating money in all likelihood. "Lin Hui said that there are still many shell companies, and they don't even have an offline office space, so they started hiring anchors.
Weibo blogger @史里芬Schlieffen (hereinafter referred to as Shilieffen), who has more than 3 million followers, created an MCN organization this year.
After the change of identity, Shilifen has a deeper understanding of this industry.
In his opinion, the reason why there are a lot of disputes between "net celebrities" and the MCN organization where they belong is because the industry is prone to irreconcilable contradictions when the status of the two parties is not equal.
He explained that the cost for a business to find a portal or place an advertisement offline is very high, while the "net celebrity" relies on its own personal charm and personal productivity to establish a strong connection with fans, which constitutes a low-cost advantage. MCN agencies have only Long-term use of low-cost models can achieve maximum benefits; when the number of bloggers and fans is still small, business resources need to be obtained by the company, and after it takes off, more and more resources directly find bloggers, and the use of MCN institutions becomes more and more useful. The smaller, this is an irreconcilable contradiction.
“Therefore, in many cases, some clauses and regulations that are considered to be'pits' by outsiders are actually a risk pre-determination behavior of MCN institutions. In order to deal with the risk of contract termination that may arise in the future, the risk of bloggers not updating, bloggers create The risk of capacity exhaustion can only charge a huge amount of channel rent.” Shilifen said that these risk pre-existing behaviors will definitely be reflected in the contract. On the premise of not breaking the law, this is a normal phenomenon in the operation of the industry itself.
In the opinion of many experts interviewed by reporters, the frequent disputes between MCN agencies and “net celebrities” are related to the rapid development of the industry but lack of uniform standards, insufficient access standards, obligations, and responsibilities, and inadequate supervision. .
"The core competitiveness of MCN institutions should be resources, services and professional levels, but most MCN institutions in the market currently do not have these competitiveness." said Ren Chao, a professor at the School of Economics and Law of East China University of Political Science and Law.
Comprehensive governance forms a win-win situation
Internet celebrities signing contracts must do background checks
In response to some of the chaos in the MCN organization, relevant departments have taken measures to rectify it.
On September 2 this year, the Ministry of Culture and Tourism issued the "Administrative Measures for Network Performance Brokerage Agencies", which stipulated the obligations of MCN agencies from six aspects, including obtaining licenses, signing agreements with performers, and strengthening the management and training of contracted network anchors Wait.
At the same time, further clarify the tripartite relationship between the platform, the anchor and the brokerage agency, and form a layered responsibility transmission mechanism for the platform to manage the brokerage agency and the brokerage agency to manage the anchor, and promote the healthy development of the online performance industry.
Not long ago, the Central Cyberspace Administration of China issued the "Notice on Further Strengthening the Work Related to the Regulation of Online Information for Entertainment Stars", requesting to strengthen the management of accounts and entities such as stars, brokerage companies (studios), fan clubs (backup clubs), and MCN organizations. At the same time, the website platform is required to establish and improve the monitoring, handling and guiding mechanism of online public opinion involving entertainment stars.
The interviewed experts believe that the ideal relationship between MCN institutions and “net celebrities” should be a win-win situation for both parties, rather than trying to overwhelm one party.
In Ren Chao’s view, major players in the industry should introduce self-discipline norms and industry self-discipline conventions. Special committees can be established to strive for policy support and industry training to solve MCN institutions’ business monetization, talent incubation, content innovation, and other issues and issues. need.
Relevant government departments can formulate a "white list" by holding a selection meeting, mainly from the basic qualifications of the MCN organization, the ability to carry goods, the comprehensive performance of the selection site, etc., to make a comprehensive evaluation, to dynamically adjust the "white list", and to pass the registration review , To provide high-quality choices for "net celebrities".
From the perspective of the compliance of the MCN organization itself, Li Zhenwu suggested that, first, the division of labor needs to be more clear, content planning, account operation, platform public relations, public opinion monitoring, etc. should be done by professionals in different categories; second, a complete system should be established The process, using written records to leave traces to deal with future conflicts.
As far as "net celebrities" are concerned, how to avoid risks?
Lin Hui made suggestions based on her own experience: "If you want to avoid the'pit', you still have to keep your eyes open and do your homework, try to find a well-known large MCN institution in the industry, and do a background investigation."
Shilifen specifically reminded that when signing a contract, you must pay attention to whether there are competition restrictions. Some companies will agree with the bloggers that they will not be able to engage in related work for a few years after the termination of the contract. This is extremely important for the ever-changing Internet content creators. Adverse.
And in the event of a "pit", Xie Hongfei pointed out that the contractual rights and obligations signed by some non-compliant MCN agencies using their contractual advantages and "net celebrities" are obviously not balanced and unfair.
"Internet celebrities" can claim the cancellation of the contract in accordance with Article 151 of the Civil Code and have the right to request the people's court or arbitration institution to cancel the contract.
If the MCN agency uses a standard contract and the clause violates the relevant provisions of the Civil Code, it shall be deemed untenable or invalid.
"The relationship between MCN agencies and'net celebrities' is a new type of social relationship spawned in the Internet age. The chaos of MCN agency signings is not only a legal issue, but also involves many issues such as ethics and culture. The cultural environment, market environment and legal environment of the country will be comprehensively governed.” Xie Hongfei said.
(In the text, Chen Xiaowei and Lin Hui are pseudonyms)