Influencer Contract
You’ve found the perfect Influencer to help you promote your product or service and to grow your following. Or maybe you as an Influencer have discovered a Brand you’d love to work with to promote their offerings. Before you approach them via direct message (aka DM them) to discuss terms, you should give some thought to how you will document the arrangement.
In the context of influencer marketing, there are several points which should be discussed, negotiated and agreed. It’s become (bad) standard practice for some to proceed with nothing but a few DMs or emails which go back and forth between the Influencer and the Brand engaging them, somewhat loosely discussing the arrangement terms. Whilst electronic communication can be used to create binding agreements, and has done so in the past, there’s good reasons to avoid jumping in without knowing what’s what.
We discuss ten of these below, in no particular order.
1. It may or may not be binding and enforceable
Certain elements need to be satisfied in order to form a binding legal contract in Australia. I won’t bore you with the details of what’s required (that’s for us lawyers to worry about after all), but know that not everything put in writing amounts to a legally enforceable contract. The back and forth nature of DMs can result in a position where the terms are not certain enough or complete to form a binding legal contract. Best practice if you want to be able to enforce it (which is really the name of the game) is for the back and forth communication to end with a formal agreement setting out all of the agreed terms, which is then signed by both parties. Better yet, the Influencer Agreement can be proposed from the get-go and used to negotiate the terms. This also results in ease of contracting (as mentioned in point 5 below, but I digress).
2. Clarity of drafting
Often where the parties are communicating via DMs, the choice of wording used can be unclear and outright confusing. There can also be multiple contradictions in the DMs, which leave both the Influencer and the Brand unsure of what’s required. Besides the fact that it’s confusing to then perform the arrangement when the time comes, this can also affect the validity and enforceability of the agreement.
3. Forgotten terms
It’s easy for key issues to be missed when communicating the terms via DM without reference to an Influencer Agreement. For example, you may be focused on the price and payment terms and forget to consider who will own the intellectual property in the content created. The consequence of this is that the creator of the content (usually the Influencer) will in most cases own the intellectual property rights in the created content in the absence of any agreement to the contrary. This may not be the intention of one or both of the parties and means that the Brand may not be able to use the content in the way in which they intended. This would then likely flow on to affect the Brand’s return on their investment – something that neither party really wants.
4. Authority to bind
When contracting with another party, it’s important to ensure that someone with authority to bind that party is entering into the agreement. Having a written agreement properly executed by both parties is best practice, and it provides each party with certainty that the other party has properly entered into the contract, and that it is enforceable against them (i.e. you can legally hold them to it, which again is the name of the game).
5. Ease of Contracting
Having a template agreement allows for ease of contracting for each campaign. This speeds up the process and ensures that all of the relevant points are dealt with each time. The Influencer Agreements that we draft for our clients contain a schedule at the back of the document which allows you to fill in the schedule and propose a complete offer capable of acceptance each time. This means that if no further negotiation is required, and both parties agree to it, it can then be signed and you can move on with the campaign. Better yet, you can use the agreement time and time again, maximizing your initial spend in purchasing the template.
6. Save time
Imagine not having to reinvent the wheel each time you engaged in Influencer Marketing. Having a template agreement with a schedule to complete saves you time in having to start from scratch every time. Simply complete the schedule and propose a full set of terms. This can then be negotiated, or simply signed where the terms are agreed, and move on.
7. Avoid disputes
If it’s all set out in writing, then you’re less likely to argue over expectations, as they should all be set out in the agreement. Get it right from the start and avoid having to have awkward conversations down the track.
8. Protect yourself
Having an Influencer Agreement drafted by a Lawyer means that your agreement is more likely to include everything necessary to protect yourself. This includes obligations of disclosure of sponsored posts to avoid trouble with the Australian Competition & Consumer Commission, and third party claims associated with misleading and deceptive conduct.
9. Know which jurisdiction you’re dealing with
Different geographical areas have different laws. For example, the laws in Australia are different to the laws in the USA. Different laws also apply from State to State within Australia in relation to certain matters. Lawyers use the word “jurisdiction” to decide which laws apply and in which Courts proceedings can be commenced. You can agree which jurisdiction will apply in your Influencer Agreement. This is something that often gets left out when agreeing terms over DMs. Save yourself time and the headache by agreeing the jurisdiction in your Influencer Agreement.
10. Brand Image
This is more of a commercial reason, but it’s worth a mention. Having a professionally drafted Influencer Agreement shows that you know your stuff and you’re ready to do business.
So now you know you know the reasons why you should act to get your hands on a professionally drafted Influencer Agreement. Now its time to contact us to get one.
