10
July
2019

Influencer contracts: tips for brands and bloggers

By Yasmin Musker

It’s no secret that more and more brands are choosing to work with influencers and online personalities to promote their product or service.  It’s now estimated that one in every 20 posts in your Instagram feed are sponsored.

The relationship between a brand is, in essence, the same as a freelancer working for an agency. It involves an exchange of services with some form of payment in return. It is a legally binding relationship which ideally should be documented in some form of written and signed agreement between both parties – or you might find yourself in trouble!

Since the influencer boom, there have been endless examples of when things go wrong. From influencers not fulfilling briefs, celebrities failing to recognise ads, to brands not delivering payment. At Primas, we have acted on behalf of both influencers and brands on a wide range of matters.

In light of this, we’ve put together our top tips on what all influencer agreements should include. So, whether you’re an influencer that’s been approached by a company for a promotion or collaboration or you’re a brand looking for the right advice on working and engaging with influencers, these simple steps are a starting point of issues to think about to ensure you’re legally protected.

If you’re an influencer looking to collaborate with brands…

  1. Content ownership

Remember you are a brand too! Do your research on the brand and make sure your reputation is not at risk of being damaged by associating yourself with it. Before agreeing anything, be sure to establish who will own the content created by you and how it will be used/re-used.

  1. Exclusivity

Given the nature of what you do as an influencer and how you build your audience, it’s all about engaging as much as possible. It’s important to consider if the brand’s expectations are too restrictive or impact another agreement you might have entered into. As part of some agreements we come across, some companies require complete exclusivity on your brand, meaning you might not be able to work with any of their competitors as a result. Consider how this might impact you and your content.

On the flip side, you could also consider whether the brand is something you want to be a part of on a more exclusive, long-term basis than what is being offered.

  1. Payment

It’s important to be upfront on expectations on payments. When will you be paid? Will you be paid all upfront or will payment be staggered? Will payment depend on certain return on investment or other targets? Is there an opportunity to seek further commission as well as a one-off payment? These are all things to confirm and agree on before entering a contract.

  1. Deliverables and Approvals

It’s important to establish what exactly you are expected to deliver in terms of content i.e. photos, videos or other content. Confirm who will approve that content and check that you’ll be able to comply with expectations on timings, especially if you’re working with other brands at the time.

Check whether there are any penalties associated with failing to meet deliverables and question whether they are reasonable.

  1. Regulation and Governing Law

Ensure that the content you are expected to deliver does not fall foul of both;

  • Advertising regulations; and
  • The chosen social platform’s own terms and conditions.

Clarify what legal system is to be used to govern the agreement and/or settle a dispute. Given the wide-spread nature of the internet, you may be entering into an agreement that may be difficult to manage complaints or disputers in certain foreign jurisdictions.

If you’re a brand wanting to collaborate with an influencer…

  1. Reputational protection

Do your research on the influencer before approaching them. It may well be that the influencer you’re working with isn’t fully aware of all advertising codes and laws (especially if they haven’t read this blog yet!). As a result, it may well be that the influencer could potentially upload an offensive post or promote a controversial product.

Therefore, it’s incredibly important to establish expectations on your side from the beginning.

  1. Establish deliverables

Set out exactly what you are expecting in terms of content. Consider what time of the day/week/month would your product would reach maximum exposure. Establish who and how you will approve their content and what key messages or disclaimers should be included in that content.

These are just some of the deliverables you can set out in a contract to ensure best coverage for your brand.

  1. Exclusivity

It’s not uncommon for influencers to be working with multiple brands at once. Consider whether it might be worth agreeing on a period of exclusivity to avoid other posts (potentially back to back with yours) promoting a direct competitor or similar product.

  1. Intellectual property

As part of an agreement, you can also license your brand to the influencer. This means that the influencer could then hold themselves out as part of your brand – even after the agreement term has ended. No matter how unlikely this may be in reality,, this is definitely something to be aware of and worth protecting yourself against when negotiating your  contract.

  1. Payment

Consider timing and mechanics of payment to the influencer. Establish how funds will be advanced and whether this will be before any posts have gone live, maybe half upfront or will it be split depending on hitting specific targets?

Influencer marketing and the relationship between brand and blogger can be a complex area to navigate, but it’s definitely something that is here to stay.

There can be huge benefits for both parties engaging in this aspect of marketing and we’ve had the pleasure of working on behalf of some fantastic brands delivering some really great influencer campaigns. But, unfortunately, we’ve also had to act on behalf of both sides when things go pear-shaped!

Working with a brand as an influencer or commissioning bloggers to produce content for your brand can be really exciting but before you do anything – cover yourself!

To find out more about influencer contracts and agreements, or if you’d like us to work on behalf of your brand or business, please get in touch with hello@primaslaw.co.uk.

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