If you’re engaging in influencer marketing in Australia, you’ve probably heard you should have an Influencer Agreement. What you may not know, is what to include in an Influencer Agreement.
An Influencer Agreement is a legal document which sets out the agreement between the Influencer and the Brand in relation to the rights and obligations of each party. Some of the important points for inclusion in an Influencer Agreement (depending on the circumstances) are set out below.
What to include in an Influencer Agreement
Parties
It’s important to identify the correct parties to the agreement. This should include full legal names (for example, company name and ACN or own personal names), addresses and, to make communication easier, email addresses.
Term and termination
It’s important to identify when the rights and obligations commence and when they end. The agreement should have a commencement date and an end date, or at least a way to terminate the agreement.
Services
The agreement should clearly set out in full detail, the services to be performed by the Influencer. This might include for example, to create certain forms of content (such as a video or a photograph), using certain colours and featuring certain products. The services should be specific and in as much detail as possible to avoid future disputes.
Deliverables
The agreement should identify what must be delivered following performance of the services. This might include sending a photo or video to the Brand to use on their own social media channels and / or posting the content on the Influencer’s own social media channels using certain hashtags.
Deliverable dates, times and locations
Set out specifics for the deliverable dates, times and locations. This might include for example, the number of posts, the specific social media accounts and the dates and times, on which the content should be uploaded. Also include the dates on which any content intended to be delivered directly to the Brand should be delivered. In cases where video or photographic material is to be provided to the Brand, the format of, and method of delivery for, such material should be specified.
Permitted use of content
The agreement should set out the permitted use of any content created, particularly if any limitations apply.
Brand Obligations
The agreement should set out any Brand obligations. This might include for example, to provide the Influencer with style guides, products or services by a certain date, respond to requests for approval of content within certain time frames and to pay the Influencer the agreed fees.
Agreed fees and payment terms
The agreed fee that the Brand will pay to the Influencer, and how and when that payment will be made should be set out in the agreement. Payments can sometimes be linked to the completion of certain deliverables and this should be detailed in the agreement to avoid any disputes.
Legal Obligations
This is a big one for Influencer Agreements and one that should never be overlooked. The agreement should require each party to take steps necessary to enable both parties to comply with their legal obligations. By way of example, the agreement should require the Influencer to disclose the commercial arrangement when they post the content on their own social media accounts. It should also require the Influencer to delete any user-generated comments on their social media account which may be found to be misleading. An obligation to delete user-generated comments on the post should be one of the obligations that survive termination of the agreement, as the post may remain on the Influencer’s social media accounts for some time after the agreement ends. The legal obligations should be considered on a case by case basis and relevant provisions included in the agreement to cover off the likely risks for that particular campaign.
Creative approvals
If the Brand wishes to approve any of the content prior to the Influencer posting it on their social media accounts then the process for such approval should be set out in the agreement.
Jurisdiction
Influencers from all over the world may be engaged by a Brand to participate in an influencer marketing campaign. It’s prudent to consider which jurisdiction will apply to govern the commercial arrangement. Once the jurisdiction has been determined, this should be set out in the agreement to avoid any disputes at a later date.
Influencer’s specific rights
Sometimes the Influencer may wish to exercise certain rights in relation to posts on their own social media accounts, for example archiving a post after a certain period of time. To avoid disputes at a later date, this should be set out as an Influencer’s right in the Influencer Agreement. This may affect the price that a Brand is willing to pay to the Influencer for the campaign and therefore should be made clear from the outset.
Confidentiality
It’s common in an inflluencer marketing campaign for the Brand and the Influencer to exchange some confidential information. This may include for example, insight analytics and style guides. The agreement should contain a clause which requires each of the parties to keep the other party’s confidential information, confidential.
Exclusivity
A Brand may wish for the Influencer to refrain from posting about other competing businesses for a specific period of time after posting about the Brand’s products or services. It can significantly reduce the effectiveness of the campaign when an Influencer promotes too many competing businesses. Any agreement regarding exclusivity should be set out in the Influencer Agreement.
Reporting metrics
If the Brand expects the Influencer to provide them with reporting metrics, such as extracts from the Influencer’s insight analytics, either before, during or after the campaign, then this obligation should be set out in the agreement.
Intellectual property rights
Ownership of the intellectual property rights in any content created should be addressed in the agreement. Depending on the circumstances, assignments and licences of intellectual property rights may need to be negotiated and set out in the agreement.
Moral rights
Depending on what the parties intend to do with the content created, it may be necessary to include certain consents and approvals in relation to use of the content which is inconsistent with the creator’s moral rights in the content.
Liability
The agreement should set out to what extent the parties agree to be liable to each other. It may be appropriate to include an indemnity in the agreement whereby the Influencer agrees to indemnify the Brand for any loss suffered by the Brand as a result of the Influencer breaching the terms of the agreement, particularly in relation to copyright infringement and misleading or deceptive conduct.
Warranties
It’s prudent to include a clause where the Influencer warrants in favour of the Brand that it has not made any misrepresentations to the Brand about the Influencer’s audience. This is important to protect the Brand in cases where Influencers have purchased followers or are part of a pod. Warranties should also be given in relation to the rights to assign or licence any intellectual property as contemplated by the agreement.
Dispute resolution
The agreement should set out how the parties will resolve a dispute, should one arise.
Boilerplate provisions
It’s worth checking that your Influencer Agreement contains appropriate boilerplate provisions, such as clauses that deal with the right to assign the agreement to third parties, the relationship between the parties, and how and to where notices are to be delivered to each of the parties to the agreement.
Other
Other provisions may need to be considered depending on the specifics of the campaign. The above should however provide you with an idea of what to include in an Influencer Agreement.
Getting it signed
Once you are satisfied with the terms of your Influencer Agreement, you should ensure that the agreement is validly entered into by the parties. Ideally you should have each party physically sign and date the agreement and exchange it with the other party.
Where to next
Boorman Lawyers can assist you in drafting and negotiating the terms of your Influencer Agreement. Contact us to speak to a commercial lawyer with expertise in social media today.
Interested in reading more of our Blogs on Influencer Marketing? You can access them here:
- Influencer Marketing in Australia: how to avoid legal issues;
- Social Media Influencer Agreements in Australia: Top 10 reasons to stop winging your terms and conditions in informal direct messages;
- Social Media Influencer Marketing; and
- Roberts v Con Katsiogiannis Legacy: The importance of an Influencer Agreement.