Influencer Agreements – What Are They?

So you’re scrolling through Instagram and you see Kylie Jenner’s ‘paid partnership’ ad with Adidas. She’s making at least one million dollars per sponsored Instagram post.

As a company, if you’re thinking of amping up your marketing efforts, you might have heard about the concept of influencer marketing. 

Influencer marketing is a form of social media marketing where influencers (either as individuals or organisations) endorse products and services through their social media.

Influencer marketing can increase traffic, generate buzz and can considerably boost your reputation and credibility.

It is now a billion dollar industry and is a big part of the future of online marketing. If you’ve never used influencer marketing before, you may have a few questions.

An extremely important part of engaging an influencer is to get a good Influencer Agreement in place in order to secure the deal, protect yourself and your brand reputation. 

What Are The Risks Of Engaging An Influencer?

Here are some things you should be aware of when you’re considering engaging an influencer. 

Fake Followers 

It is important for social media marketers to know that many influencers purchase followers, or have bots constituting their follower count.

If an influencer has lots of followers, you should at least turn your mind to the possibility of fake followers.

It is essential to find a good and transparent way to validate an influencer’s followers for fake ones or bots. 

The best way to check the genuinity of an influencer’s instagram account is to enter their handle into a bot analytics tool or a statistics website such as Social Blade. 

Generally if there are sudden spikes of growth in follower numbers that don’t correspond to a significant event – this may be a red flag and something to consider!  

Inconsistent Content Strategy 

Things can get a little confusing when social media campaigns have multiple creators working at the same time on marketing briefs, creative content, captions, scheduling posts and ensuring posts go live as planned. 

While you may have a vision of what your marketing campaign should look like, your influencer may not completely understand it.

Always be sure that every instruction you send to your influencer is extremely clear and consistent with your brand. 

Two Words: Fyre Festival

If you missed the Netflix documentary, let us fill you in! Fyre Festival was an event promoted by multiple influencers and social media titans, without any proof of the concept.

Socialites, models and celebrities promised extravagant beachside benders. People then flocked to the Bahamas only to find feral dogs, missing luggage and tents used for natural disaster relief as accommodation.

Many of these influencers’ loyal fans did not only feel betrayed by Fyre Festival’s organisers, but the influencers themselves as well. 

If scandals like these teach us anything, it is the importance of making sure you and the influencer are clear on what you’re promising, particularly as they are incredibly effective in reaching wide audiences. 

This was particularly the case with YouTuber PewDiePie, who in one of his videos included anti-Semitic remarks and Nazi imagery. 

This unacceptable content lead to the loss of his sponsorship with Disney’s Maker Studios, and is a notable example of how engaging influencers can potentially damage your brand’s reputation. 

What Do I Need To Know About Influencer Marketing Laws?

Whether you are a brand wanting to engage an influencer or an influencer yourself – it is important to consider the legal issues surrounding these relationships. 

The Australian Association of National Advertisers Code of Ethics requires influencers to disclose that a post is a paid endorsement of a product or a service. 

Although these Code of Ethics are non-binding, this is where the Competition and Consumer Act comes in. 

By not disclosing that a post is an advertisement and that influencer is being paid to promote it, the influencer could potentially be breaching the law and may be considered misleading and deceptive conduct. 

It is important to have an Influencer Agreement in place in order to minimise the risks of misleading or deceptive conduct.

Things To Consider In Influencer Agreements 

Even with all the risks of engaging an influencer, they can be incredibly effective in promoting your brand. 

To ensure you get the most out of the relationship, it’s important to have a solid Influencer Agreement in place. Here are some key things you should consider when you’re putting together your Influencer Agreement. 

Setting Clear Expectations For Work And Remuneration

As there are many risks to engaging an influencer, it is important to be clear about the scope of work expected from them. Will you be writing their captions for them? Will you have to approve the final draft of the post?

As a brand, remuneration is also an important factor to discuss with your influencer. Will they be paid per post or will they be paid an agreed amount to promote the brand however they see fit?  

Setting out these expectations clearly in your Influencer Agreement ensures you’re on the same page from the beginning, and helps prevent disagreements down the track.

Who Owns The Photos The Influencer Is Posting? 

Copyright and intellectual property concerns arise when you start to consider who owns the content the influencer is posting to social media platforms as part of your agreement. Are the images owned by your brand or the influencer? Or by the platform (eg Instagram)? 

By default under law, copyright is owned by the creator of the content. However, when you agree to Instagram’s terms and conditions, you agree to licence the rights to the platform for them to use the content created by the user. 

It is really important that the brand and the influencer agree on any assignment or rights of ownership, particularly if the brand wants to own the content. 

As influencer marketing is a new and growing field, the laws haven’t quite caught up yet. In a grey area like this, it is crucial to have a solid agreement in place to protect yourself. 

Copyright Infringement In Influencer Marketing

If your influencer uses an image that infringes another trade mark or infringes on copyright in any other way, you also want to be protected for these scenarios.

One of the first cases that arose in this area was a suit brought by Ultra Records against influencer Michelle Phan for allegedly using background music in her post without permission. 

Although the case settled, the real concern of copyright infringement in influencer marketing arose. 

It is important to address any liability concerns for IP infringement in your Influencer Agreement in order to completely protect your business and brand.

Is The Influencer An Independent Contractor Or An Employee? 

Another important thing to consider is whether to engage your influencer as an independent contractor or an employee. 

Will you be giving them ongoing work or is this a one off engagement? 

If you are giving your Influencer ongoing work under your direction, they are likely to be classified as an employee. 

Alternatively, if they are given complete autonomy over the way they complete the work, it more likely to be a contractor relationship. 

The Fair Work Ombudsman consider this distinction to be very important, and is something to consider and address in your Influencer Agreement.

Exclusivity: Can The Influencer Work With Your Competitors?

Exclusivity is something you have to discuss with your influencer. 

Will the influencer be able to produce content for your competitors or related brands? Can your brand be mentioned alongside other brands or do you want their posts to only include your brand? 

It is essential to work these restrictions and specifications by the way of exclusivity clauses in your influencer agreement in order to completely capture the essence of your brand and vision. 

Talk To A Lawyer

Having an Influencer Agreement is an extremely important document to protect your brand and secure your revenue streams. Whether you are a brand engaging an influencer, or an influencer promoting a brand, we can help!

If you have any questions, or think you might need an Influencer Agreement, you can reach us on 1800 730 617 or email team@sprintlaw.com.au.

Abinaja Yogarajah

Abinaja is a the legal operations lead at Sprintlaw. After completing a law degree and gaining experience in the technology industry, she has developed an interest in working in the intersection of law and tech.

Tomoyuki Hachigo

Tomo is the co-founder of Sprintlaw and a commercial lawyer with a broad range of legal experience. Before starting Sprintlaw, he was an M&A lawyer at a top-tier law firm advising businesses of all sizes from large corporates to startups.