Legal tips when using influencers in campaigns

by Carla Koutroulis. The use of influencers has taken over the world of advertising and marketing, and become more frequently used than even radio and television advertising. Influencers are the modern-day trend setters; and the use of influencers on social media helps retailers or brands reach a desired demographic, and create discussions around products on social media, creating brand awareness.

When engaging with an influencer, there are certain key considerations to ensure that the organisation gets the most out of the arrangement:

1. Use of a PR agency: A public relations agency can help connect you with the best influencer to promote your brand, and help manage the relationship.

2. Ensure that there is an agreement in place: This document will be the framework to ensure that the influencer complies with what is required of them, and govern the relationship in terms of the obligations and rights of both parties. Some important provisions include:

• • Restraint provisions – ensure that the agreement prevents the influencer from marketing competing products for the duration of agreement.
  • Moral obligations – when appointing an influencer, you would not want your brand associated with conduct that conflicts with the brands ethos, or conduct that is potentially questionable. Accordingly, it is always recommended that an agreement with an influencer details conduct that may be considered prohibited by the brand.
  • Content ownership – intellectual property ownership is vital whenever content is being created. The general rule is that the author of the works is the owner. However, the Copyright Act of 1978 provides for an exception whereby the ownership of the intellectual property transfers to the person paying for the creation of same under a contract of service. This, however, can be amended in an agreement, and accordingly, it is important as a retailer hiring an influencer to promote its brand, that these provisions are carefully checked and considered.
  • Process for approval of content – having an open dialogue of what content is expected is key in a successful campaign. If the brand or retailer has appointed a PR agency to manage the arrangement with the influencer, they will usually help create content ideas. Either way, whether the retailer or brand is engaging with the influencer directly or through an agency, it is important that there are checks and balances in place that allow for the approval of content, to ensure that the posts that the influencer intends to post align with the campaign in mind.
  • Dispute resolution process – a good dispute resolution clause is an often overlooked, but is a key clause in an agreement. It is important to consider how one would like to deal with a dispute, and we often recommend a mediation type clause in order for the parties to meet and attempt resolution of a dispute prior to any formal legal processes commencing. This can help avoid costly legal fees in immediately proceeding with some sort of legal action; which, depending on what was agreed on between the parties in the agreement, can be either action through court process or private arbitration, both of which have their own pros and cons.
  • Payment terms – it is important that both parties agree to what the payment terms will be, as this can prevent disputes further down the line.
  • Intellectual property usage period – when the influencer promotes a retailer or a brand, they will be utilising the retailer’s intellectual property (name, logo, etc). Similarly, the retailer may also be promoting the influencer by associating such influencer with its brand. It is accordingly important to provide for an intellectual property and image usage period, where the parties are entitled to use each other’s intellectual property and image, as part of the relevant campaign.
  • Termination and duration – influencer agreements will usually be for a fixed period, either the duration of a specific campaign, or a specified time period. It is important to specify the relevant period, in order to avoid confusion that the agreement may exist indefinitely; or that the use of each other’s intellectual property may exist indefinitely, or for a period that extends past the campaign. It is important to make provision for early termination should the retailer be unhappy with the influencer’s performance in terms of the agreement; as well as making provision for certain clauses to survive the termination of the agreement, such as any confidentiality, restraint and intellectual property provisions.

Social media can be an invaluable tool to promote a brand, however, it is important that before engaging with an influencer, you properly protect your brand and ensure that any potential risk for negative publicity or liability or unnecessary costs, are limited.

Main pic credit: Pixabay.com.

Carla Koutroulis is a Senior Associate at Consilium Legal, a boutique legal and business advisory.

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