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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.

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