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In the world of marketing, there is an emerging trend that companies are turning to for success. Influencer Marketing allows brands to tap into an influencer’s following by hiring them to promote products or services on various platforms. Due to the nascent trend, it has now become imperative that an agreement should be drawn up listing all the terms and conditions of the arrangement.
An influencer agreement is a legal agreement between an influencer and a company that lays out the terms of their business relationship.[i] It basically outlines the terms and conditions of an endorsement deal between an influencer and a brand.[ii]
An influencer agreement is equally said to be an agreement by which a party is contacted to promote the products or services of a brand through the use of social media. The influencer, with his/her influence, is able to decide the purchase decision of his/her followers.[iii]
Need for Agreement for Influencers?
An agreement is needed for influencers to avoid miscommunication and misunderstanding that may affect the collaboration between the influencer and the brand. The agreement is expected to spell out the deadline for content and post-production [iv] as well as help to reduce the chances of problems arising during the influencing period as it spelled out the duties of both the influencer and the brand.
Essential Clauses in an Influencer Agreement
While an Influencer Agreement may contain a lot of clauses, the following are however essential clauses the Agreement should contain:
The agreement should outline the scope of work to be performed, and what its purpose should be. This means specifying that this agreement is entered into for the purpose of content creation or some other form of collaboration. The agreement should be clear about what is expected of the influencer — the deliverables, the due date for submitting them, and the frequency of posting them.
The agreement should include a schedule of when the work started to the date it needs to be completed. It should also specify how long the brand-influencer relationship will last.
The agreement should specify how much the influencer will be paid. It should also indicate whether the influencer will be paid in cash or in kind as well as any benefits the influencer will receive, like free products or access to exclusive events.[v] Typically, a payment terms clause will include:
The copyright often goes to the influencer, but there are cases where the brand wants to own the copyright or have joint copyright ownership. The agreement should state who has the right to use the content and how it can be used.
It is anticipated that confidential information will be shared with the influencer to enable him/her to carry out the work. In that case, the contract should specify that this information must be confidential and not shared with anyone outside the agreement.[vi] The influencer might even be made to sign a Non-Disclosure Agreement. Brands may need to disclose confidential information to the influencers they are working with.
For example, when the influencer is to be an ambassador for a new product, it will be important to ensure that the product’s information remains confidential until the launch date. In order to avoid any confidential information being leaked before launches, it is vital to infuse the Non-Disclosure clauses within the agreement.
The agreement should specify under what circumstances either party can terminate the agreement and what the consequences will be if this happens. This will help protect both parties if there is a disagreement or one fails to comply.
It is essential to consider who will own the intellectual property (IP) in the content that the influencer is creating for the brand. After creating content, the influencer has exclusive legal rights over that content. Nonetheless, you may include it in the agreement that the influencer should transfer ownership of the content created to the brand or provide the brand with a license to use the content.[vii]
It should be contained in the influencer’s agreement whether or not the influencer is allowed to work with a similar or competitive brand. If the influencing is one-off, brands should specify the timeframe in which they require exclusivity.[viii]
Brands may require that any content to be posted by the influencer gets approved before it is posted on their social media accounts. This is to make sure that the content is in line with the brand’s guidelines and allows the brand also has some control over posted content.
Influencers oftentimes grant brands rights to use the content they have created for the campaign, like the right of reproduction and distribution rights.[ix] As a result, brands will be able to use these rights indefinitely, even after the termination of the influencer’s contract. It is, therefore, apposite that this clause should be inserted in the agreement.
Influencers should endeavor to label sponsored content when posting on their social media accounts. They can add hashtags like #paidpartnership, #ad, and #paid to the post, or attach the logo of the brand to their post. Brands can also dictate when they want the influencer to disclose the partnership.
Brands are to include the channels the content would be posted on in the influencer’s agreement. They also need to agree on when the post will go up and how many times it is going to be posted.[x]
Conclusion
Some brand-influencer agreements fail from the initial stage because the brand refused to create a sustainable agreement. To avoid this, it is important to make sure that the influencer agreement includes the clauses listed above.
A properly drafted and detailed influencing agreement will create a successful relationship with influencers. It also helps to avoid conflicts.
[i] https://avokaado.io/blog/influencer-agreement/ accessed on 11/02/23
[ii] https://www.contractscounsel.com/t/us/influencer-agreement accessed on 11/02/23
[iii] https://www.wonder.legal/ng/modele/influencer-agreement-ng accessed on 11/02/23
[iv] https://nealschaffer.com/influencer-contract/ accessed on 11/02/23
[v] https://avokaado.io/blog/influencer-agreement/ accessed on 12/02/23
[vi] https://avokaado.io/blog/influencer-agreement/ accessed on 12/02/23
[vii] https://legalvision.com.au/influencer-agreement-include/ accessed on 13/02/2023
[viii] https://legalvision.com.au/influencer-agreement-include/ accessed on 13/02/2023
[ix] https://freemanharris.co.uk/clauses-influencer-agreement/accessed on 11/02/23
[x] https://freemanharris.co.uk/clauses-influencer-agreement/ accessed on 11/02/23
Written by Olalekan O. Elizabeth for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com