Influencer marketing agreements

Influencer marketing agreements are a type of agreement used by brands working with influencers, bloggers, vloggers and celebrities as part of a marketing campaign. Influencers may operate in a number of platforms such as YouTube, Tik Tok, Instagram and Facebook and in a wide range of industries such as food, fashion and health and fitness.

As influencers are actively promoting your brand, products and services to millions of followers, your brand is able to deliver targeted messaged to a large, interested group of people who trust that those messages are being delivered by a trusted source.

However, it is important to make sure that your business has the necessary marketing agreement in place in order to protect your brand, set expectations and meet any legal advertising standards to protect your consumers.

Depending on the influencer, the parties to the contracts will be the relevant brand and the individual – acting in a personal capacity – or an agency that manages the relevant influencer(s). Alternatively a party could be an image rights company set up by the influencer to licence their image rights, or, where the influencer is computer-generated, the creators of the computer-generated imagery (CGI) influencer.

This article delves into the ways in which your brand should safeguard its reputation when contracting with influencers and how to create a comprehensive commercial contract.

There are a number of steps your brand can take to protect its reputation:

1. Carry out your own due diligence: This should be done before the brand enters into a marketing agreement. It is important to look out for any history of erratic behaviour or acting in a manner that is not consistent with the brand values.
2. Agency influencers: It is safer to contract with agencies rather than individual influencers as they will take liability for the behaviour of the influencer and also specific characteristics of that individual, for example if there is a more onerous duty of care due to the influencer being a minor.
3. Termination rights: Including a right for the brand to terminate for convenience at any time or following reputational damage in order to prevent ongoing reputational damage.
4. The Incorporated Society of British Advertisers (ISBA) Code of Conduct: Your brand should consider complying with the code in your dealing with influencers and stating that the agreement with influencer complies with the code.
5. Competition and Markets Authority (CMA) compliance principles: The CMA recently published guidance for brands engaging with influencers which emphasises that compliance with regulation – specifically around the correct labelling of advertisements – is an equal responsibility of the business as well as the influencer.

Furthermore, a comprehensive and well drafted commercial contract should cover:

1. Exclusivity clause: This should state if the brand requires exclusivity in respect of certain platforms or channels, if the influencer is restricted from working with competitor brands and how long the exclusivity lasts, in order to provide clarity around the extend of the exclusivity.
2. Services provided: A clear outline of the scope of the services the influencer is expected to provide is important in order to ensure mutual understanding of responsibilities.
3. Ownership of intellectual property: Clarifying the ownership and usage of intellectual property created during the collaboration is crucial in order to avoid future disputes over ownership.
4. Control over content and conduct: Setting out the level of control the brand retains over the influencer’s content and conduct is important to maintain a cohesive image.
5. Compliance with laws and regulations: Making sure the influencer’s activities comply with any laws and regulations in order to protect both parties from legal prosecutions.

Therefore, before entering into an influencer marketing agreement it is important to consider the ways in which you can protect the reputation of your brand. The advice of a specialist commercial lawyer is also essential to ensure that you have a well drafted and thorough marketing agreement in place.

This article is authored by Nicolas Groffman, Partner and Rafaela Sachollari, Trainee Solicitor.