Why are influencer contracts important when entering into a new working relationship? They protect both the brand and the social media influencer.

It seems commonplace for an agreement between a brand owner and an influencer to be formed on the basis of a ‘DM’ (direct message) on the relevant social media platform. This informal approach is commonly adopted instead of having a proper agreement in place to govern the working relationship. The absence of a properly drafted contract leaves both parties vulnerable in the event of a dispute.  For brand owners this can make them vulnerable, for example, in relation to reputation management and other legal issues.

In this article we look at some key things to consider when entering into a new working relationship or setting up an influencer contract:

What to include in influencer contracts

Intellectual Property

Consideration needs to be given to intellectual property rights, which will inevitably arise as a result of the agreement; the creator of the content will hold the rights to the intellectual property, unless there is an assignment in place. Also, the author’s moral rights will give them control over how content is used in the future. This means it is crucial to ensure that the contract is drafted to address this and that specialist legal advice is sought to ensure that IP rights are understood.

Advertising

With a medium as fast paced as social media, people often forget that rules around marketing still apply. The brand owner should want to include a provision that the influencer will not breach advertising rules and use the opportunity to set down specific requirements, such as the inclusion of hashtags such as #Ad or #Gifted, depending on the agreement. Equally, it is important for the influencer to ensure that they are not breaching advertising regulations. At the very core of the regulations is a requirement for influencers to be transparent about sponsored content so that followers and viewers are clear on the same. It is important for the contract to include provision to ensure compliance with the Advertising Standards Authority (ASA) advertising regulations and standards. Click here to read our article on the obligations imposed under the regulations.

Content

The brand owner and influencer will want to ensure relevant, meaningful content which has a valuable to a given audience is posted – the aim is often engagement, likes, shares and an increase in followers. It is sensible to make provision in the influencer contracts for:

  1. what actually is to be produced – how many posts, when should they be posted and in what format (e.g. videos, images or stories);
  2. the amount of likes or reposts to be achieved;
  3. option to pre-approve the content where possible;
  4. right to take down; and
  5. the right to repurpose and recirculate content on other channels or accounts.

Confidentiality

This should be a key consideration and it is sensible to have an express provision in the contract, which deals with confidential information to protect both parties from having such information shared with third parties. In absence of a formal confidentiality obligation or an employee/employer relationship – there will be no duty of confidence.

Drafting influencer contracts

It is important for both a brand owner and an influencer to have a contract drafted, which caters to the specific agreement rather than agreeing terms by direct messaging.  Our intellectual property team has experience in both drafting and reviewing social media influencer contracts and agency social media influencer contracts.