How to get away with an influencer agreement?
Updated on 14.12.2021
“In, sta, gram, Tik & Tok and Telegram …”
In the context of a digital marketing campaign, the legal aspects can be a tricky issue.
It is therefore crucial for brand advertisers and influencers to rely on a robust contract.
Here are some key provisions (non-exhaustive list) to keep in mind when drafting an influencer agreement.
Ordering and execution process
From a structural point of view, it is often recommended to draw up a “collaboration framework agreement” to be completed by a purchase order in annex. For each advertising campaign, a dedicated PO shall be signed by the parties.
Such contractual architecture allows working with influencers several times without having to renegotiate the whole contract.
This PO form should be as precise as possible regarding the content of each specific collaboration. For example: identify the deliverables (e.g. photos, videos, posts, etc.), the relevant social media (e.g. Instagram, Facebook, YouTube, etc.), the applicable content specifications (format, accompanying message, etc.), deadlines and price, etc.
An acceptance clause allows the brand to control the quality of the content prior to its publication or, if necessary, to request the influencer to modify the proposed content.
Right of withdrawal
A withdrawal clause allows the brand to request the influencer to take down the content, after its publication, in case of unexpected negative reaction of the public.
Specific conditions relating to the contents and their publication
It is obviously essential for the brand to determine the content-related specific conditions, e.g. the influencer must:
- comply with all legal and regulatory constraints applicable to online activities and influencers (such as, but not limited to, regulations on advertising, e-commerce, data protection law, etc.);
- ensure that all the content comply with the rules and/or terms and conditions of the relevant social media;
- ensure that all the contents comply with public order;
- inform – in a visible or understandable way – the public that the content is published in the context of a commercial relationship with the brand.
If the influencer’s content is original, it may be protected by copyright.
Under copyright law, the influencer will therefore be the owner of the copyright on the content. However, it is possible to acquire these rights by providing a clause transferring copyright to the brand.
If the brand wishes to exploit the influencer’s image (e.g. by publishing on its website or on an advertising display content from the influencer in which the influencer appears in an indentifiable/recognisable way), a specific exploitation is required.
Reporting and audit
In order to evaluate the success of the marketing campaign, the brand can require the influencer to provide accurate statistics relating to the published content (number of followers engaged, views, likes, shares, etc.).
For the brand, it is fundamental to provide that the influencer guarantees that the content created does not infringe the rights of third parties.
Confidentiality and data protection
During the performance of the agreement, the influencer might:
- access to confidential information; and/ or
- process personal data of third parties (e.g. his/her followers).
It is therefore important to determine the roles and obligations of the parties with regard to accessed confidential information.
Term and termination
Besides the duration of the agreement, the consequences of termination must also be addressed (e.g. what are the obligations of the parties regarding the content ordered but not delivered at the time of termination).
The success of a good influence marketing campaign notably relies on a clear and precise agreement defining the obligations of each party.
The members of Lexing’s Creactivity department regularly assist both brand advertisers and influencers in drafting legal documents that meet the interests of all involved parties in order to secure a fair collaboration. Do not hesitate to contact us!