An influencer agreement must include all the terms and conditions agreed upon by both parties. When acting for either side on an influencer agreement, we always flag to our client that each agreement is different depending on circumstances but once we have details of the core content agreed , we can create the agreement for review with the following key provisions always recommended as included:
Social media has brought with it a new and growing business for influencers which allows them to earn a living online.
Influencers by their very nature have large social media followings over a variety of platforms such as Instagram, Tiktok,Facebook, Twitter. A business can engage an influence to leave positive comments or reviews about a product or service which engages their followers and ultimately the aim is for them to influence their followers to purchase that product or service.
Influencers must label their social media content as a paid advertisement and make it clear they are receiving payment for product placement
An influencer agreement must include all the terms and conditions agreed upon by both parties. When acting for either side on an influencer agreement, we always flag to our client that each agreement is different but once we have details of the core content agreed , we can create the agreement for review with the following key provisions always recommended as included:
- Agreement duration
- Detailed description of the product intended to be promoted by the influencer. Visual guidelines are often provided and indeed recommended to prevent confusion after the fact. Sign off may be included as a clause.
- Details of each content distribution channels i.e. each social media platform Instagram, Tiktok, Twitter, Facebook etc.
- IP Rights – A clause should be inserted for clarification that the business retains control of all images and furthermore have the right to use the content created by the influencer and to reproduce/ distribute. This may extend to after the agreement is terminated. An influencer should also have permission in the clauses to use the trademark/ logo of the product and ensure they are protected from any infringement of trademark claims.
- Deadlines and timescales including the number of posts and timeline i.e. every day, week etc.
- Termination – most agreements will include wording to allow the business to terminate the agreement if the influencer posts controversial material or offensive material. However this should be a mutual clause to protect the influencers brand also.
- Tracking and reporting –clauses on whether the influencer must use particular tracking ie embedded URLs in their content, coupon codes, brand tagging and hashtags. From an influencers perspective, it needs to be clear from the fundamental to advanced levels as to what their part is in that tracking.
- Payment provision - Payment can vary from a fixed fee per post/ story to a proportional fee such as a fixed amount per post with an increase in fees for a set amount of likes. Generally there would be a requirement for a cap on this ultimate fee in case a post goes viral.
- Exclusivity – A business will want exclusivity for their product. For instance, if promoting gym wear, the business will not want to see the influencer promoting a competitors brand during the same period of time.
- Confidentiality provision
- Dispute Resolution provision
- Removal of material -Influencers may want to take down content after a set amount of time. This can have negative effects depending on the channel used. For instance, removal of an Instagram post a couple of months old may not have significant effect however the removal of a blog article on an influencers website or you tube video may have a negative effect. These expectations should be clear in the contract.
- Limitation of liability - We mention trademark infringement earlier however there are other instances wherean influencer may find themselves accountable and so there should be a limitation clause to limit how much the influencer can be held accountable if a brand suffers losses relating to the collaboration.
We at Cosgrove Gaynard Solicitors have extensive experience in the area and structure, negotiate and draft contracts and agreements for all aspects of social media law for influencers and businesses including: Influencer Agreements, Agency agreements, Collaboration agreements, Consulting services agreements, Joint venture agreements, Management agreements, Modelling agreements, Personal assistant agreements, Podcast agreements, Services agreements, Social media agreements and many other agreements which apply to this area.
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