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As an Instagram influencer, you will be approached by brands to promote their products or services across social media. These are often verbal arrangements made between you and the company. However, it is crucial to have a formal influencer agreement in place that clearly articulates the obligations of both parties. This document can prevent disputes from arising later on concerning: 

  • payment; or 
  • your responsibilities to the brand.  

This article sets out some issues you should consider before entering into an influencer agreement.

Term and Fee

Your agreement must set out how long the business relationship between you and the other company will last. It should also set out what fees you will receive. You should consider the timing of your influencer arrangement, including whether the agreement requires you to:

  • represent the brand for a specified period;
  • make a certain number of posts within a set timeframe; or
  • make a certain number of posts, irrespective of when you publish them.

For example, a brand may ask you to regularly post images for one month or to simply make three posts.

There are several factors you should negotiate in terms of payment, including whether the brand will pay you:

  • for every post you make;
  • a specified amount at the end of the agreement; or
  • in proportion to the number of likes you receive on the image.

For instance, you may be paid $10,000 after making five posts over a month, as long as each post receives over 5000 likes.

Importantly, you do not want to be locked into an agreement for too long if your following is growing rapidly. A long-term contract with a fixed fee will prevent you from accessing an increase in payment for the increased value you are providing.

You should also be aware that the business may be required to pay you superannuation. This depends on whether you are considered a contractor or an employee. The business is still required to pay superannuation if you are a contractor and meet certain requirements, unless your total income is less than $450 per month.

Content and Engagement Conditions

To make sure that they benefit from your services, the brand may want to place certain conditions on the influencer arrangement. They might request that you:

  • receive their approval before posting any content;
  • post at specific times;
  • tag their brand name;
  • make a certain number of posts each week;
  • receive a reasonable level of engagement; and
  • drive a certain level of traffic to their social media channels and website.

Some brands require a lot of control over their influencers to maintain their brand image. You need to balance this with: 

  • the trust your followers have in you to provide genuine content; and 
  • restraints on your creativity.

These matters should be considered and specified under your influencer agreement.

Exclusivity 

The brand may request that you solely represent their products and services. This may prevent you from working with similar brands and even restrain you from posting photos of you using products from competing businesses. They can set these conditions for the entirety of the influencer agreement. An exclusivity period that starts at the end of your agreement could also prohibit you from promoting competing products for a specified period.

For example, a clothing brand may approach you to promote their products over the course of the month. They may ask that you do not post any images of you wearing merchandise from competitors for that month, as well as an additional three weeks after the end of your agreement.

If you want to work with other brands at the same time, you will need to negotiate this with the business in your influencer agreement. An exclusivity period can also limit you by territorial regions. Perhaps your agreement will prevent you from working with competitors in Australia, but you could work with another brand in another country at the same time.

Intellectual Property (IP)

As an influencer, you will be creating and posting visual content. This means you need to consider IP arrangements to legally protect the creative work that you produce. 

Every time you create an image or video, you automatically become the legal owner of the work. It becomes your IP and you have sole control over it. 

Your influencer agreement should clearly outline the brand’s rights to use your IP, including whether you will: 

  • transfer ownership of your IP to the business; or 
  • only provide them with certain licensing rights to your photos. 

Alternatively, the business may not want any ownership or licensing rights to your photos. They may only require you to carry out specific services by posting the images on your own account. 

When negotiating your agreement with the business it will be important

  • to think about: 
  • licence usage; 
  • licence exclusivity;
  • transferring ownership; 
  • your use of the content; and
  • the services you will provide.

Disclosing Commercial Relationships

Australian law prohibits deceptive advertising. Your agreement should outline that you must reveal your commercial relationship with the business if it: 

  • is not reasonably obvious to consumers that you are promoting their business; or
  • would be misleading to your community to not include a reference to your commercial relationship with the business.

Complying with Platform Terms and Conditions

You must also comply with Instagram’s terms and conditions, or the relevant guidelines of any platform you are using. You should be careful of entering any agreement where the business is commissioning you to take and post specific photos which may contravene your obligations on that platform. This may lead to Instagram deleting your account. 

For instance, this could include any posts that depict:

  • illegal goods;
  • hate speech;
  • harassment; or
  • nudity.

To avoid any misunderstanding, you should include a provision where the business acknowledges that any services you provide will be subject to relevant third party terms and conditions.

Key Takeaways

Before entering into your influencer agreement, you must understand:

  • how and when you will be paid;
  • the conditions placed on you; 
  • the amount of control the business has over your content; 
  • whether it is an exclusive arrangement;
  • IP rights and ownership; and 
  • compliance with Instagram’s terms and conditions.

If you would like support reviewing an influencer agreement, contact LegalVision’s contract lawyers today on 1300 544 755 or fill out the form on this page. 

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