Licensing · Essay 06
The Endorsement Deal
The mark in every other essay in this cluster cannot embarrass anyone. The one in this essay can, and frequently does.
A beverage brand signs a well-known presenter to front its new campaign — a flat fee, a year's term, footage shot in a single day. Eight months in, the presenter is at the centre of a public scandal that has nothing to do with the brand and everything to do with how the public now sees her. The brand wants the campaign pulled immediately. Its lawyer reads the contract twice, looking for the clause that lets it happen. There isn't one. The fee was paid in full, upfront, for a year's use of her image, and nothing in the document contemplated the year going wrong.
Paul Magaji · 6 min
Every other essay in this cluster licenses a mark — a name, a logo, a design — that has no opinions, commits no scandals, and cannot be photographed somewhere embarrassing. An endorsement licenses a person, and a person carries risk no trademark ever does. The clauses that matter most in an endorsement deal are, correspondingly, clauses the rest of this cluster barely needs: what happens when the face of the campaign becomes a liability, and — the reverse, just as real — what happens when the brand is the one who embarrasses her.
This essay assumes the base licence structure already covered — the grant, the approval rights, the term — and takes up only what changes when the licensed asset is a human being rather than a mark.
A trademark's reputation is damaged by bad products. A person's reputation is damaged by bad Tuesdays.
Act One
What Nigerian law actually protects, and how little of it there is
Nigeria has no dedicated statute protecting a person's image, name, or likeness as a commercial asset — no equivalent of the right of publicity recognised in California and a number of other American states, which treats a person's identity as property she can license and sue over independently of any contract. What exists instead is scattered and considerably narrower.
The constitutional right to privacy protects against certain intrusions but was not written with commercial endorsement in mind and does not, on its own, give a person a clean claim against unauthorised commercial use of her image. The common-law tort of passing off can reach a narrower case — a business falsely implying a celebrity's endorsement when none was given — but only where the public would actually be deceived into believing an endorsement exists; it does no work at all where an endorsement was genuinely given and the dispute is about its scope or its ending. Defamation law reaches a narrower case still, and only where a use is genuinely false and damaging, not merely unwanted.
What this means in practice is the same lesson the franchise essay draws from a different absence: since no Nigerian statute constructs image rights the way property or copyright are constructed, the contract is not one layer of protection among several. For most of what actually goes wrong in an endorsement relationship, it is the only layer that exists at all.
Act Two
Five clauses a mark never needs
Guard One
The grant, itemised — not “her likeness”
A grant of “likeness” is a word doing the work of a sentence, and a sentence is what a contract actually needs.
The agreement should list, separately, what is licensed: name, photographic image, voice, signature, a specific filmed or recorded performance, and any catchphrase or characteristic association being used commercially. Each carries a different practical risk — a voice used in a radio advertisement raises different concerns from a photograph used on packaging that will still be on shelves years after the campaign ends — and a single undifferentiated grant of "likeness" resolves none of those differences, leaving the scope of what was actually agreed to be argued after the fact rather than settled in the document.
The Exposure
An undifferentiated grant is read expansively by whoever holds it and narrowly by whoever is trying to escape it — precisely the dispute a specific, itemised grant exists to prevent.
Guard Two
Conflicting endorsements
The single most negotiated clause in any real endorsement deal, and the one a template borrowed from ordinary brand licensing is least likely to get right.
A restriction on the endorser appearing for a competing brand — defined by category, not by name, since a competitor list agreed today may not include the competitor that matters in year two — protects the value the brand is actually paying for: a public figure whose association is not simultaneously being sold to somebody selling the same thing. Category exclusivity here does more work than in ordinary brand licensing, because the asset being protected is not a product line but a person's public association, which a rival endorsement damages regardless of how the products themselves compare.
The Exposure
An endorser who signs a second, conflicting deal during the term has not committed some abstract breach — she has, in the public's eye, made the first brand's investment look like one relationship among several she was willing to sell simultaneously.
Guard Three
The morals clause
The clause the brand in this essay's opening did not have, and the reason its lawyer found nothing to read twice.
A morals clause gives the brand a right to suspend or terminate the endorsement, without further payment, where the endorser's conduct — criminal conviction, public scandal, conduct that a reasonable observer would find seriously damaging to the brand's reputation — makes continued association harmful. It needs a defined trigger rather than an open-ended "any conduct we dislike," since a trigger too vague to apply consistently is a trigger a court will hesitate to enforce against the endorser at all, and it should specify the consequence — suspension pending review, or immediate termination — rather than leaving the brand to guess at its own remedy in the moment it most needs to act quickly.
The Exposure
Without this clause, a brand paying a flat fee upfront for a fixed term has bought a year of association with whoever the endorser turns out to be over that year — good, bad, or genuinely damaging — and has no exit from any of it.
Guard Four
The reverse morals clause — protection running the other way
The risk runs in both directions, and only one direction is ever drafted for by the party who wrote the first version of the contract.
An endorser has a comparable interest in protection from the brand: the right to terminate if the brand engages in conduct that would seriously damage her own reputation by association, and — separately, and just as often overlooked — a genuine approval right over how her image, voice, or performance is actually used. Footage licensed for one context, re-cut or captioned to imply a statement she never made or an endorsement of something she never agreed to, damages her personal reputation in a way no company's reputation is exposed to when its logo is merely used somewhere unexpected. An approval right exercised before publication, not after, is this essay's version of the approval clause every other essay in this cluster already relies on — applied here to a person rather than a mark, and correspondingly higher-stakes for the person on the other side of it.
The Exposure
A brand that re-purposes footage without the endorser's approval, confident that the original grant was broad enough to cover it, is relying on exactly the kind of undifferentiated grant the first clause in this act exists to prevent.
Guard Five
Death, incapacity, and the limit of what a contract can compel
A trademark licence survives whatever happens to either party's personnel. An endorsement cannot, because the thing being licensed is inseparable from a person who might not be available to keep licensing it.
Personal-service obligations cannot be specifically enforced against an unwilling or unavailable person — a court will not compel someone to keep appearing in advertisements she is no longer willing or able to appear in, whatever the contract says. The agreement should therefore address what happens to existing footage and materials already created if the endorser dies, becomes incapacitated, or is otherwise unable to continue — whether the brand may continue using material already filmed for a defined wind-down period, and on what terms — rather than leaving the answer to be litigated at the worst possible moment for everyone involved.
The Exposure
A contract silent on this question has not preserved the brand's rights to existing material. It has left the question to whoever ends up controlling the endorser's estate or affairs, with no clause obliging them to agree to anything.
Every clause in this essay exists because the asset being licensed can wake up tomorrow and do something the contract never imagined.
The presenter's scandal in the opening was, in the end, unremarkable as these things go — the kind of story that dominates attention for a fortnight and fades. What made it expensive for the brand was not the scandal itself but the absence of a single clause that would have let the brand decide, on its own terms and on its own timeline, what to do about it.
This publication is educational and analytical. It describes how legal and commercial structures work; it does not advise on any particular matter, and nothing here should be relied upon as advice on a reader’s own affairs. The author holds commercial interests in the brand-building and private-label sector examined by this series.