A brand that needs forty creator videos a month has two proposals on the table. One is from an agency: a single invoice, a producer who briefs and manages the creators, a delivery folder every Friday. The other is a spreadsheet of twelve creators found on a marketplace and through city guides, each with a rate, a package and an email address. The marketing question is the one every market asks, and the guide to agencies versus marketplaces answers it. In the United States there is a second question underneath, and it decides more of the year than the first: what the agency changes on the brand's paperwork, and what it does not change at all.
The short version is that the agency changes the forms and does not change the responsibility. The IRS reads the payee, not the service, so paying one company instead of twelve people rewrites the year-end file; the Federal Trade Commission reads the advertiser, not the vendor, so the program run by an agency is still the brand's program. This guide takes those two texts in turn, then the third one, the chain of rights between the creator who filmed and the brand that runs the video.
What the agency changes: the forms
One payee instead of twelve
Paying creators directly means, per the IRS instructions for Form 1099-NEC, collecting a Form W-9 from each before the first payment and filing a 1099-NEC for each creator whose payments in the tax year reach $2,000, under the instructions for tax years beginning after 2025, with a copy to the creator. Twelve creators is twelve W-9s and up to twelve 1099-NECs, plus a Form W-8 BEN for any creator who is not a US person. The hiring guide in this cocoon describes that file from the brand's side. Paying an agency means one W-9, and whether a 1099-NEC follows depends on what the W-9 says the agency is.
What the agency's W-9 decides
The same instructions list the payments for which a Form 1099-NEC is not required, and the first item is: generally, payments to a corporation, including an LLC that is treated as a C or S corporation. The instructions carve out the payments that stay reportable on Form 1099-NEC even to a corporation, attorneys' fees and the payments of federal executive agencies to their vendors, and creator production is not on that list. So an agency organized as a corporation, or an LLC taxed as one, generally receives the brand's payments without a 1099-NEC; an agency that is a sole proprietorship or an LLC taxed as a partnership is a payee like any contractor, and the $2,000 line applies. The brand does not decide this; the box the agency ticks on its W-9 does, which is why the W-9 comes before the first invoice, not after the year.
The creators behind the agency
When an agency pays the creators, the agency is the one collecting their W-9s and filing their 1099-NECs; the brand has no filing toward people it did not pay. That is the paperwork advantage the single invoice buys, and it is real: the Chicago and Dallas guides describe, from the creator's side, corporate buyers that onboard each creator as a supplier through a procurement portal before the first brief, and for such a buyer one supplier instead of twelve is the difference between a program and a pilot. What the advantage does not include is any knowledge of what the creators were paid or promised, which matters for the next section.
| What the brand is comparing | Agency | Creators direct |
|---|---|---|
| Forms collected before payment | One Form W-9, from the agency | One Form W-9 per creator, or W-8 BEN for a creator outside the United States |
| Year-end filing | A 1099-NEC only if the agency's W-9 shows it is not a corporation, from $2,000 | A 1099-NEC per creator from $2,000, per the IRS instructions |
| Who briefs the creators on claims and disclosures | The agency, on the brand's instructions | The brand, directly |
| Who is responsible for the endorsements under the FTC Act | The brand, with the agency; delegation does not relieve the advertiser | The brand |
| Chain of rights | Creator to agency to brand, each link in writing where a right is exclusive | Creator to brand, in the license the creator signs |
| What the brand knows about the shoot | What the agency reports | Everything, at the cost of managing it |
What the agency does not change: the responsibility
The advertiser's program, run by someone else
The FTC's questions and answers on endorsements are explicit on this point, and they answer a company whose program is run by its public relations firm. The company is ultimately responsible for what others do on its behalf; it should make sure the firm has an appropriate program in place to train and monitor members of the network; it should ask for regular reports confirming the program is operating properly and monitor the network periodically; and delegating part of the promotional program to an outside company does not relieve the company of responsibility under the FTC Act. The FAQ also says that if law enforcement becomes necessary, the FTC's focus usually will be on advertisers or their ad agencies and public relations firms; the advertiser is the first name in that sentence, and nothing in it takes the advertiser out of the list. The creator program guide describes what the reasonable program contains; with an agency, the brand's part of it is the reports it asks for and the checks it runs itself.
The same answer in the email channel
The same logic holds in the CAN-SPAM guide for the email channel, which states that even if a company hires another company to handle its email marketing, it cannot contract away its legal responsibility, and that both the company whose product is promoted and the company that sends may be held responsible. What usually stops a brand from acting on this is the invoice: one supplier feels like one accountable party, whereas the texts name the advertiser first whoever sent the email or briefed the creator.
The chain of rights
A creator video the brand runs has an author, the creator who made it, and the ownership guide sets out the Copyright Office's rule: the copyright initially belongs to the author, a transfer of an exclusive right generally must be in writing and signed by the owner of the rights conveyed, and a non-exclusive permission needs no writing. An agency in the middle can only pass to the brand what it holds. If the agency's contract with the creator grants the agency a non-exclusive license, the brand receives at most that; if the brand wants exclusivity or ownership, there has to be a signed document from the creator, either to the agency and then on, or directly to the brand. The agency proposal that says "you own all content" is a sentence about the agency's intent; the document that makes it true is the creator's signature, and a brand asks to see it before the first video runs.
When each one wins
The agency wins at volume and at distance: a brand that cannot manage twelve relationships, that buys through a procurement process built for suppliers, or that needs a producer between the brief and the creator, buys time and one line in the ledger. The direct route wins when the brand wants to know its creators, to brief them on claims itself, to hold the licenses in its own files and to keep the fee it would pay for the layer in between. Whichever route the brand takes, the W-9 file follows the payee and the FTC program follows the brand; the choice is about who sits between them, not about who answers.
The brief for choosing
- Ask the agency for its Form W-9 with the proposal, and read the tax classification box before deciding what the year-end file will look like.
- Ask how the agency briefs its creators on allowed claims and on the disclosure, and put the right to regular reports in the contract, because the FAQ's answer is that the brand asks for them.
- Ask to see the license each creator signs with the agency, and match it to the rights the agency promises the brand.
- Going direct, collect a W-9 or W-8 BEN per creator before the first payment, and keep the licenses with the campaign files.
- Either way, keep the reasonable program the FTC describes in the brand's own hands: the claims list, the disclosure wording, the periodic check.
Sources
- IRS, Instructions for Forms 1099-MISC and 1099-NEC (12/2026)
- IRS, About Form W-9
- Federal Trade Commission, The FTC's Endorsement Guides: What People Are Asking
- Federal Trade Commission, CAN-SPAM Act: A Compliance Guide for Business
- U.S. Copyright Office, Circular 1: Copyright Basics
Checked on 21 September 2026. This guide is not legal or tax advice. Where this guide and the official source disagree, the official source prevails.
