Influencer marketing has become one of the most popular ways for businesses to engage consumers and drive sales. From promoting your brand to new audiences to securing loyalty from customers, engaging the services of well-known influencers can do wonders for advertising your business. However, when dealing with any third parties, there are certain risks involved. Having a well-drafted agreement with the influencers you engage can help mitigate any risks. This article will outline some key clauses to include in your influencer agreement that will ensure your business is protected.

Details of the Services

It is crucial to be specific about the services that you require from the influencer you are working with. You should detail all the essential elements of the services, including:

  • whether you require the influencer for one-off content creation, a campaign or on an ongoing basis;
  • how many posts you need the influencer to create;
  • which dates and times you require the influencer to publish the content;
  • which social media platform you require the influencer to post on;
  • any points that you need the influencer to mention in each post; and
  • any specific hashtags and tags you would like the influencer to use in each post.

Paid Endorsement Disclosure

The Australian Association of National Advertisers (AANA) requires advertising and marketing communication to be clearly distinguishable. The Australian Consumer Law (ACL) also prohibits misleading and deceptive advertising. Therefore, it is crucial to ensure that social media users are aware that posts published through influencer marketing are sponsored. If followers are not aware that you are paying the influencer to market your products and brand, it can be misleading. 

You should require the influencers you work with to prominently disclose any posts you are paying them for as an advertisement. You can do this by requiring the influencer to use hashtags like: 

  • #ad;
  • #paid; 
  • #paidpartnership; or
  • #sponsored. 

Further, you should ensure that their posts reveal their honest opinion of your products, rather than something scripted and inauthentic.

Fees and Payment Terms

A fees and payment terms clause should outline how you will pay the influencer for the marketing they conduct. Typically a payment terms clause will include:

  • a description of the fees;
  • when payment is due; and
  • the accepted methods of payment.

Failing to make this clear may result in disagreements with the influencer. This is particularly if their expectations of payment are different to what you are willing to provide. 

For example, you should consider whether you will pay the influencer a flat fee per post or a lump sum if they are working with you on a campaign. You should also explain how you will be making the payment, whether that be through: 

  • cash;
  • a bank transfer; or
  • a third party payment gateway, like PayPal. 

Confidential Information

You may need to disclose confidential information with the influencer you are working with.

For example, if they are going to be an ambassador for the new product, you want to ensure that they keep information surrounding that product confidential until the launch date.

Your influencer agreement should contain a clause which ensures the influencer does not disclose any information you share with them unless you provide them with consent to do so.

To avoid any confidential information being leaked prior to launches, it is vital to outline specific dates within the agreement.

Ownership of Intellectual Property

It is essential to consider who will own the intellectual property (IP) in the content that the influencer is creating for you. Generally, the creator of a photo or video is automatically its legal owner. So, upon creating content, the influencer has exclusive legal rights over that content. However, you may want the influencer to:

  • transfer ownership of their content to you; or
  • provide you with a license to use their content.

Transfer of Ownership

If the influencer transfers their IP rights in the posts they create, you will become a legal owner of the content. However, if you still wish for them to upload the posts or use them in different ways, you will also need to grant them a license to use the content for specific purposes.

License

If you do not transfer the IP ownership and the influencer retains their IP rights, you must obtain a license from them which allows you to use their content. Your influencer agreement should specify whether: 

  • they can negotiate how you use their content; or
  • you will have exclusive use of their content.

If you want to share the content that the influencer creates on your newsletters and print advertisements, for example, you should ensure your license outlines how exactly you intend on using the content.

Exclusivity

Depending on whether you are engaging the influencer for one-off content creation or for a lengthier campaign, you should make it clear whether the influencer is allowed to work with other brands.

For example, if you own a sportswear company, you may wish to prevent the influencer from promoting and working with other sportswear companies.

If you are engaging an influencer for a long campaign, it may be reasonable to expect and require them to exclusively promote your brand for a certain time frame. If the influencer is working with you to launch a new product, you should specify a time frame in which you require exclusivity. This may be for the duration of the campaign launch and a set amount of time after the launch. 

Key Takeaways

Influencer marketing can be extremely effective in increasing brand awareness and driving sales. However, there are various factors to consider when engaging influencers that will mitigate your legal risk. Having a well-drafted influencer agreement that clearly outlines the arrangement between your business and the influencer you are engaging is crucial. If you have any questions about having an influencer agreement drafted, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page. 

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

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Casey D'Souza
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