The benefits of an influencer agreement
Contracts are written “in time of war”, so their presence is advisable in literally any situation, especially when working with an influencer. Having a written commitment between the parties gives good security, much better than a verbal agreement. Accurate, reliable establishment of conditions, expectations and deadlines gives each party a sense of security. At the same time it allows you to determine what their mutual expectations are and what they really commit to. This gives confidence that the conditions of cooperation will not change suddenly.
An example of the benefits of writing down a contract is Luca Sabbat’s collaboration with Snap Inc. The Instagramer failed to live up to the terms of the agreement, i.e. he failed to create original content for a minimum of 1 post on Instagram and 3 accounts on InstaStory during New York Fashion Week, as well as during fashion events in Milan and Paris. His failure to fulfill the contract, which paid him a fee of $60,000, contributed to a lawsuit filed by Snap Inc. The company demanded a refund of $45,000 plus interest for unjust enrichment and to cover damages resulting from the default.
If, in this case, there had not been an agreement in which the terms of cooperation and the amount of promotional content were specified in detail, it would have been much more difficult to assert claims in court.
Subject of the contract with the influencer
What, then, can be the subject of the influencer agreement? It will be literally anything that has to do with advertising, promotion and presentation of products or services. However, it is a good idea to be precise about what is included in the contract. If it is too general, it may be interpreted differently and cause misunderstandings as well as a too narrow or too broad scope of activities. Therefore, before starting cooperation with an influencer, you should answer the following questions:
- What should the influencer do? Will it be a blog post, a video, a post on Instagram, or a 24-hour report? What should be the length of the post or video, how should the product or photos be presented?
- What will be the tone of the message? You can give the influencer free choice here, or give guidelines for the message, e.g. in relation to the look of the photos, the rating, or product placement.
- When should I publish? Sometimes the publication should occur within a specific date or time range, so we can indicate a specific publication date and a maximum deadline for the submission of corrections and approval of the promotional campaign.
- What will be the content distribution channels? Some influencers have several social media accounts, so you should indicate the specific channels on which the campaign should appear.
Besides, you should provide the influencer with detailed information about the product, service and company they will be promoting. This way, the campaign will be more relevant and personalized. Here is a sample content regarding the subject of the influencer agreement:
Under this agreement, the influencer agrees to perform activities such as:
Create and publish two images of product XYZ on his/her social media account
Instagram (influencer account name: XXYYZZ) with a description
Creation and publication of five InstaStory accounts on his account on the social network Instagram encouraging the purchase of the product XYZ together with the insertion of an affiliate link;
Creation and publication of an article on the Influencer’s blog at www.XXYYZZ.blog.pl, encouraging the purchase of XYZ product. The text should not be shorter than 2000 words.
The above-mentioned activities, hereinafter referred to as “advertising activities”, the Influencer agrees to perform in exchange for the remuneration specified in paragraph X of this agreement.
What to choose – a contract for performance or a contract for diligent work?
Each of the above mentioned forms is valid. An influencer contract can be either a performance contract or a diligence contract. It all depends on your expectations about the influencer and his work on the campaign.
The purpose of this form of advertising may be both to achieve specific sales results, increase brand popularity, as well as promotional activities for the brand at a particular time. Thus, the contract can include information on whether the purpose of the campaign will be a result or diligent work.
The possibilities of contracts are different. The most important is the content of the contract, but it is also worth defining its type. Defining the subject of the contract beforehand will help us in this. It is also worth remembering that when establishing the terms of cooperation, it is best to use the written form or at least make detailed arrangements via e-mail.
The most common types of contracts with influencers include commission or service contracts. These are contracts for diligent work – the most important thing here is the efforts to achieve a result, rather than the final result of the campaign. Confirmation of this view can be found, inter alia, in the judgment of the Court of Appeal in Katowice of 11 April 2019. (file reference: III AUa 526/18). It indicates that activities of factual nature resulting from the provision of services or contract of mandate do not have to lead to the achievement of an individually determined result.
The second popular type of contract is the contract for specific work. This is a contract of result, in which the influencer undertakes to achieve a specific goal/effect.
The last type, quite non-obvious, is a contract for the lease or rental of advertising space. The role of this space is played here, for example, space on the creator’s website. In such an agreement, the influencer gives a specific advertising space for use by the other party to the contract and to collect any benefits.
What should not be missing in an influencer contract?
- Proper identification of the parties – the agreement is not always signed directly with the influencer and in conflict situations, it is important to accurately identify the parties. Sometimes a marketing agency acts on behalf of the influencer (or on their behalf, but on their behalf).
- The subject of the contract – already mentioned above, the most important element of the contract. It must be precisely described – it should include activities, places of publication, and how to publish advertising activities. You should never use too general guidelines.
- Method of implementation – here it is also necessary to indicate precisely how the contract will be implemented, for example, when the campaign is long-term, it is worth creating a schedule of activities. In this way the advertising activities will take place regularly, at a specified time and according to a predetermined plan.
- Liability and security of the contract – this refers to liability for non-performance or improper performance of the contract. Some people also omit the element when drafting the contract, which is a huge mistake. Despite the fact that as a result of not using the author’s liability clauses, the general rules of the Civil Code apply, it is worth creating them ourselves. Then they will be tailored to our own needs. The contract in this respect may be shaped voluntarily – excluding, limiting or extending the liability in terms of warranty for legal or physical defects or contractual penalties. Contractual penalties may include delays in contract execution, faulty or inappropriate material publication, shortened campaign time, as well as violations of non-competition clauses or confidentiality rules.
Confidentiality and competition clauses
Confidentiality and competition clauses are important elements of cooperation in influencer marketing.
The former applies to all brands that value discretion. Such a clause protects sensitive information about the principles of cooperation and the company itself. However, it can not contain illegal contractual provisions. In addition, it should specify what information is subject to confidentiality and the liability for breach of confidentiality. It is also worth indicating the duration of such confidentiality.
The second issue is the competition clause in the influencer agreement. The most important feature of the influencer’s activity is its recognisability, authenticity and ability to influence viewers. Therefore, in some cases, it is worth securing an agreement regarding the influencer’s relationship with competing brands (e.g. during the campaign, some time before it or right after it). The effect of this clause will be limited influencer’s ability to establish cooperation with other market players in the same or similar industry.
The issue of image and copyrights of the influencer
An integral element of the activities of influencers who run blogs, vlogs or create other content in social media is their image. It determines, among other things, their credibility. Therefore, the issue of using and distributing the image should also be included in the contract with the influencer. It often happens that an entrepreneur commissions an advertising material, but then such material is published only on the website, profile or blog of the influencer. However, the entrepreneur would like to use and distribute it also through his/her own content distribution channels.
Therefore, it is worth getting a statement from the influencer, in which he agrees to use and distribute the image by the entrepreneur in a specific manner described in the agreement. What is important, the influencer can withdraw consent for the use of their image at any time. Therefore, it is good to indicate in the contract also the way of compensation in case of withdrawal of such consent.
Remuneration and RODO
The form of remuneration in contracts with an influencer may be a traditional monetary settlement. Another optional form is barter, a model in which the value of both services should be indicated in the contract. With barter, the influencer receives an item or service with a value specified in the contract instead of a monetary value (usually services or products from the brand that has partnered with the influencer).
The issue of RODO, the processing of personal data, is also significant. In the case of a contract with an influencer, the information obligation must be fulfilled because you are also processing their personal data as an individual.
Trademarks in influencer materials
The final issue related to the influencer agreement is trademarks, which are signs used in commerce that identify a brand as the source of specific goods or services. A trademark would therefore be, for example, a company name, slogan, or logo. It is important that the mark be presentable in the trademark register in such a way that the exact subject of the protection granted in the market can be clearly established.
According to the law, to use someone else’s trademark, you must obtain the permission of the owner. However, there are a few exceptional situations in which you can use trade marks without permission. Nevertheless, in the case of a contract with an influencer, it is a good idea to give them official permission to use the brand or product logo. It is also important that these are good quality marks, supplied directly by the client.
The situation also works the other way around. Influencers also have logos that businesses want to use, e.g. when informing about cooperation or promoting events. Such indications should also be included in the contract.
At the same time, taking into account recent events, it is important to obtain a precise statement from the influencer that he has the right to use his own trademark. This includes the situation of Veronika Sowa aka Wersow – an influencer, Instagramer and youtuber, who in 2021 was accused by internet users of illegally using a logo of a French artist (as a result, she violated his copyrights). Wersow admitted the internet users were right – she did not have a license to the graphic used for more than two years. Importantly, the logo also appeared on the youtuber’s advertising materials, i.e. in campaigns carried out with other companies. Unfortunately, without proper security from the entrepreneurs, it would be difficult to defend against a copyright claim.
Thanks to influencer marketing you can effectively promote and advertise all kinds of products or services. This form of cooperation brings with it many important benefits for companies. However, it is always advisable to secure an appropriate agreement with detailed terms of such a commitment. This will reduce the risk of various failures or problems. Of course, an appropriate agreement will undoubtedly be prepared by a law firm dealing with brand protection, media law and modern legal issues. However, even before you start working with an influencer, it’s a good idea to familiarize yourself with the provisions that should be included in such a document.
A contract with an influencer is a good branding move for a brand, but it can carry the risk of non-performance or improper performance of the contract. That is why it is worthwhile to precede it with detailed discussions and proper preparation from the legal side to ensure the final result is satisfactory for both parties.
Author: Anna-Maria Sobczak, Intellectual Property Attorney, RPMS Staniszewski & Partners