In the world of marketing, there is an emerging trend that companies are turning towards for success. Influencer Marketing allows brands to tap into an influencers’ following by hiring them to promote products or services on various platforms such as Instagram, YouTube or TikTok.
The ultimate step in campaign planning is to make sure you know how things will work out before taking any risks. An agreement should be drawn up listing all the terms and conditions of the arrangement. However, as every industry and location has different requirements, your needs will also vary depending on those factors.
In this post, we will discuss the main clauses that an influencer agreement should cover.
Standard clauses in agreements
Some clauses are common to all business agreements, these include :
Intellectual property
Influencers should acknowledge that they do not have any rights to your brand’s IP. In addition, there must be a provision about how any use can take place. So make sure you specify exactly how much use they are getting for what materials.
Limitation of liability
Subject to the usual exclusions for fraud and death or personal injury resulting from negligence, the clause limits how much an influencer can be held accountable for if your brand suffers losses related to the collaboration. It also caps the types of compensation you can recover from the influencer in case their liability resulted from negligence, breach of contract, Infringement of IP rights, or misrepresentation.
Termination
The unexpected happens, and it is important to be able to pivot quickly. You may need a new direction for your business in light of unforeseen circumstances, such as an influencer becoming more of a liability than an asset. While you have the right to terminate the agreement for any reason, it is common for influencers to negotiate to be granted this right as well. Consequently, it is crucial that you identify what will happen in case of a sudden termination.
Notices
This clause describes how notices are to be delivered according to specified timelines. It helps avoid any possible disputes by ensuring that each party has certainty and clarity in relation to notices given before moving forward, it is therefore best not to ignore it!
Warranties
The influencer should warrant that they have authority to enter into the agreement and that their work is original in accordance with copyright law. Besides, if you require it, they can grant you any rights to use their content. Influencers also need to ensure that the agreement will not conflict with any laws or third-party rights and that performance under the agreement will not and does not conflict with any agreements they may have reached separately. Finally, they must make clear that no permission is required or fees payable to the warrantor in respect of the rights of use granted, and that they will not use third party IP without obtaining their prior written consent.
Clauses specific to influencer agreements
Other clauses are specific to your situation, these include:
Engagement
This clause sets out the manner in which the influencer is engaged and should be modified to match your specific needs.
Approval of materials
You may require that any content posted by the influencer be approved before it goes live on their social media accounts- this should come up in negotiations!
Although your options are varied, ranging from specific content requirements to permission to freely share content within brand guidelines, agile frameworks give influencer freedom while still allowing some level of control over posted content.
Grant of endorsement rights
Influencers often grant brands rights to use the content they have created for the campaign, such as the right of reproduction and distribution rights. Usually, you will be able to use these rights indefinitely for business purposes.
Obligations
When launching an influencer campaign, it is important to make sure that they are following your instructions. Influencers must agree to fulfil their part of the contract without subcontracting or delegating. All in accordance with the terms of the agreement.
As for you, you will pay the influencer after they have completed their services.
Exclusivity
What exclusivity do you need and how long for? Do you require an exclusive right to certain platforms or channels? You can also require that they do not work with competing brand, but it is best to put this down in writing.
Privacy
Showing that you are in compliance with the law and taking steps to protect the influencer’s personal information is a must.
Disclosure
The Influencer should label any sponsored content when posting on their own social media accounts, for example by adding the hashtag “#ad” to each post or video. You should also indicate when you want the influencer to disclose the partnership. For instance, in the case of a YouTube video, do you want them to disclose it at the beginning or end of the video?
Relationship between the parties
Again, influencers should tell their followers that they are being paid to promote your product. They can do so by using specific hashtags or even by attaching your logo to their posts.
Morality/reputation clause
While it is important that you list any specific issues surrounding your product, you also want your brand reputation to remain intact. Therefore, as influencers cannot always be trusted to be morally responsible at all times, including a clause allowing to cut ties with them if their content goes too far is necessary.
Honest opinions
Similarly to most brands you can require the influencer to relay positive messages while promoting your brand or dictate the exact characteristics of their posts. However, as it often is important for influencers to maintain transparency with their followers, you could ask for their honest opinion only.
Channels/distribution:
Finally, mention where the content should be posted and how many times it needs to go up on social media. Consider region-specific social media platforms such as Weibo in China when targeting particular territories to ensure maximum exposure across different markets.
Are these clauses enough for your influencer agreement?
Your business is unique, and so are your needs, therefore other clauses may need to be considered. Influencer agreements can be a tricky topic, and finalising the perfect agreeement takes some time, but we’re here for you every step of the way!
Please contact Freeman Harris if you would like an influencer agreement drafted or reviewed by our legal team.