Reading time: 4 minutes

If you have a successful Instagram presence, you may have considered taking the next step into the world of influencer marketing. You have followers and a personal brand, and now it’s time to start getting paid. You may know exactly what to do when it comes to receiving likes, but running a business creates another level of complexity. This article will detail some legal considerations to keep in mind when starting up an influencer business, including: 

  • protecting your brand and intellectual property;
  • structuring your business; and 
  • understanding the rights and obligations in your contracts.

Protecting Your Intellectual Property

As an influencer, your personal brand is crucial to your income stream. The content of your images and written material are automatically protected by copyright in Australia. Another piece of intellectual property often overlooked by influencers are brand names and trade marks. 

Although your images and written texts may be automatically protected by copyright, you need to take proactive steps to ensure that no one else can start using your name or brand without your permission.

If you want to have exclusive ownership over your brand, you need to register a trade mark. You can apply for a trade mark for your:

  • name;
  • Instagram handle;
  • logo; or
  • distinctive slogan.

When you have a registered trade mark for your brand name, you can license your trade mark to businesses that want to be associated with you. This has two key advantages:

  1. you have control over what is associated with your brand name, meaning that nothing can tarnish your brand by association; and
  2. you can make an income from licensing your brand name. 

Structuring Your Influencer Business

To run a business, you need to have an Australian Business Number (ABN) and business structure. A sole trader is the simplest structure to set up. Here, all you need is an ABN, which has minimal costs. Although this kind of structure is easy and cheap, it can also inhibit your business’ growth and limit your ability to protect your assets.

One less-often discussed downside of a sole trader structure is that it is not very private. If you apply for a trade mark for your brand name as a sole trader, the address of your sole trader business will be publicly listed on the trade mark register, where it is visible to anyone who searches for your brand.

If you are growing an avid follower base, it could cause issues if they can access your personal details online, including your workplace address.

One option to prevent this is to set up a company. A company is a separate legal entity to you personally, so any debts that you incur from your business cannot come straight out of your bank account. A company also allows for growth through investment, and can shield your privacy a little more. 

For example, if you apply for a trade mark to protect your brand name under the company name, the company’s details and address are publicly listed – not your personal details. 

However, a company is a little more complex than a sole trader to set up and maintain. Further, as a company director, you must keep to certain rules.

Understand Your Agreements

When you promote a brand’s products in return for payment, you are entering into a contract with these businesses. Many brands will have influencer marketing agreements that detail exactly what you must do to receive your payment. It is important to have a lawyer review these documents before you agree to them to make sure that there are no terms that unfairly disadvantage you. 

You want to make sure that the requirements are not too burdensome. You also need to understand who owns the copyright to the images you produce that are sponsored by particular brands.

If you want to take the next step in your influencer career, instead of signing up to someone else’s terms, you can dictate your own. You could have a standard contract developed for you to present to different advertisers that has the terms of the relationship set out how you want them.

However, it is important to consider your bargaining power. If you are just starting out and want to sign on to a large company, you might not be able to dictate your own terms. 

Key Takeaways

If you are setting up an influencer business, it is important to make sure you: 

  • have the right business structure;
  • protect your intellectual property; and 
  • understand your contracts before you sign them.

If you need assistance in setting up as an influencer, contact LegalVision’s business lawyers on 1300 544 755 or fill out the form below.

Webinars

Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

Online
If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Online
Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Online
Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Online
Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Online
Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Online
Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Online
Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

Online
As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Blythe_Dingwall
Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards