Influencers & Content Creators

Contracts don’t have to be in writing — they can be agreed verbally, over email or through DMs. However, we strongly recommend signing a written contract with the influencer to avoid any misunderstandings in the future.

A written contract has particular importance when it comes to brand protection. It enables you to establish how your brand logo or other assets can be used by the influencer. It will also help you to clarify who the other the contracting party is (an agency or the influencer themselves).

The key issues that your contract should consider include:

• The obligations of the influencer (such as the social media platform and the number, frequency and quality of posts).
• The fees the influencer is entitled to, including the exact payment terms and any other benefits (such as free products).
• Clear guidance on how the influencer may use your logo, trade mark or any of your intellectual property assets to ensure that your brand is protected.
• The ownership of the content (the intellectual property rights vested in the content produced and published by the influencer).
• Your usage rights regarding the photos and texts published by the influencer (to ensure that you can reuse any of the content if you wish to).
• Minimum compliance requirements for the purposes of brand protection (so that neither you nor the influencer will fall foul of the Advertising Codes).

We can assist with drafting or reviewing contracts (if you already have one that you use or are provided with one by an influencer or agent).

It’s best to raise this question with the influencer. Without discussing ownership rights upfront, you might be at risk of using the influencer’s intellectual property rights without their permission — especially considering that there are many ways in which you could repost or reuse content.

A written contract between you and the influencer should precisely set out who owns the content they produce and — if it’s owned by the influencer — under what conditions you can republish it.

We can help you with drafting and negotiating the ownership and usage rights for the content or advising whether — based on all the circumstances — you can reuse the influencer’s content.

Influencers with a large number of followers are frequently represented by agencies and you will be required to negotiate with the agent of the influencer, instead of directly establishing a relationship with the influencer.

Before you go into the details of discussing your requirements with the agency, it’s always good practice to ask for some form of proof that it has the authority to enter into negotiations and sign contracts with you on behalf of the influencer. Not having proof isn’t fatal, but it can make things more complicated if a dispute arises further down the line.

The agency may request payment on behalf of the influencer and should be able to provide you with further proof that the influencer has authorised it to accept fees on their behalf. Having clarity around who is responsible for the performance of the influencer’s services can be a crucial point as well. Agencies frequently have their own terms and conditions that they want you to comply with, so you may feel like you have less control over the contractual terms.

We can assist you with reviewing the agency’s draft contracts. We can also advise on any amendments they propose to your contracts and whether they have sufficient authority to represent the influencer.

The answer entirely depends on whether you have agreed exact KPIs with the influencer, as well as the duration of your contract and what your termination rights are.

We strongly recommend that you agree minimum KPIs in advance. If you didn’t discuss any specific KPIs with the influencer, it will be very challenging to achieve any remedies such as a reduction in fees.

You can consider more incentive-based payment methods and — if the duration of the contract is long — your option to terminate the contract with short notice.

It can be a complex task to set performance-based KPIs and objective measures and align them with your payment terms — this is something that we can help with. We can also guide you in reviewing and (if necessary) enforcing your rights if needed.

Generally speaking, both you and the influencer are responsible for ensuring that the content of the advertisement is compliant with the CAP Codes and all other laws and regulations that apply to the product or service being promoted. It’s good practice to discuss compliance requirements upfront.

The main considerations are:

• Clear and obvious indication that the content is an advert.
• The statement(s) used to describe the characteristics, nature and function of a product or service (such as any authorised or substantiated claims, especially if your product is subject to a lot of laws like with cosmetics or food supplements).
• Ensuring that you don’t fall foul of gambling regulations if prize promotion or giveaways are part of the content.

We can guide you on how to produce compliant content or review content that you or an influencer has produced and wish to use to protect your brand and avoid customer disappointment and dissatisfaction. We can also support and advise you on how to handle complaints.

A contract can be agreed informally (for example, through DMs or even a phone/video call). The difficulty with informal agreements is that you may not have agreed all of the relevant issues. Where verbal contracts are concerned, the problem is that your recollection of what was agreed may not be the same as that of the brand and/or agency.

This is why lawyers always recommend that you ‘get it in writing’. If a problem develops further down the line, this will save you time and money, as you won’t first have to establish whether one of the parties to the contract has breached an obligation that they have agreed to.

We therefore recommend that you follow up any conversation or DMs about influencer contract terms with an email to the brand or agency. This should set out what you understand to have been agreed. This practice should always be followed, even if you’ve been working with a brand or agency for a while and have a good relationship.

The key issues to consider include:

• What are you being paid to do? Make sure to describe your obligations in full and set out any agreed exclusions (things that you're not required to do).
• How much you will be paid?
• When you will be paid? Are there any KPIs?
• Who is going to pay you? Do you have the company’s full trading name and address, as well as the full name and email address of the person that you’re negotiating the contract with?

You may well have heard of the now infamous 2011 ‘monkey selfie’ case in the US. Under the relevant UK laws, the starting point for photo ownership is that whoever takes the photo, owns the photo.

However, if a dispute arises over photography ownership or the use of a photo that you believe you own, here are some basics as to where you stand.

If you’re a freelancer and there is a contract in place, your rights will depend on what your contract says. In some cases, you may be contracted to transfer all ownership rights (possession, management, use, exclusion and disposition) of the photo. In other cases, you may only be contracted to licence the use of the photo to the brand or agency for a particular context.

If you’re an employee, anything you create that falls within your job description will automatically be owned by your employer. If you want to own what you create outside of work, you must agree this in writing with your employer.

If the contract says nothing about ownership, you will own the photo and a licence will be in place for the agency or brand to use it for whatever uses were understood by you when you agreed to create the photo.

If a dispute arises, it’s best to seek legal advice right away.

KPIs (key performance indicators) are a common requirement from brands. If you don’t reach the agreed KPI, you won’t be paid.

Since it can be tricky to know whether it’s reasonable to agree to a KPI — as predicting what the latest trend will be during a campaign is nearly impossible — we recommend that you negotiate minimum KPIs to ensure payment for your efforts, as well as KPIs that reward your reach and community engagement.

When it comes to payment, written contracts usually include a clause that outlines the amount and frequency of payments.

If your contract is verbal, it’s best to raise the question politely in writing (by email or DM) and ask when you can expect payment. It may be that the brand or agency is waiting for an invoice from you.

Independent brands usually pay within 14 to 30 days from the completion of the work or receipt of an invoice, while bigger brands may take between 60 to 90 days to pay, depending on their policies and regulations.

We can help you to chase large unpaid debts and explain how you can claim for smaller debts.

The Advertising Standards Authority (ASA) has become stricter in recent years when it comes to the regulation of advertising and promotion by influencers, agencies and brands on social media.

It’s important to remember to use hashtags such as #AD, #GIFT and #SPONSORED to make it clear to your audience that your post or story is an advertisement resulting from a commercial relationship.

For a quick guide, check the ASA’s guidance for influencers and make sure to follow the procedures of the platform you’re using.

If you have any questions about the ASA rules for a complicated or controversial campaign, it's worth seeking help.