5 Essential Provisions in Social Media Influencer Agreements

Every type of agreement has its own tricks and traps. The contract made between the advertiser/brand and influencer is a unique agreement. There are several issues you should pay attention to when you are signing one. One of the most obvious and top-priority provisions include the influencer’s services in detail and compensation. In this article, we will not talk about them but other things that should not be ignored.

Depending on whether you are an advertiser or an influencer, some of the other provisions are more important to you. Although in an excellent agreement there aren’t any unimportant clauses, some terms are always more central. In this article, we will share 5 clauses that we think should be carefully formulated in an influencer agreement.

LEGAL COMPLIANCE – WHO NEEDS TO FOLLOW THE LAWS?

Depending on the jurisdiction, the brand is also responsible for following the relevant regulation if the influencer does not. For example in Finland that is the case. In most jurisdictions, the advertiser has a duty to inform the influencer about the relevant legislation, such as consumer protection and marketing laws.

Falling foul of the relevant laws puts you on the risk for sanction and negative publicity. For example, in many jurisdictions, it has been made clear that using only the social media platform tool to mark commercial collaboration is not sufficient.

We recommend using a clause that requires the influencer to acknowledge and comply with the relevant laws, regulations and soft law instruments in your jurisdiction. It is good practice to include a written guidance that has the relevant legislation and guidelines that needs to be followed.

It is important to bear in mind that being in compliance with relevant legislation benefits both parties of the influencer agreement. In today’s world, ignoring legislative obligations and requirements in social media influencer marketing campaigns can be hazardous for both the influencer and the brand.

Consumers are fully aware of the sponsored content on social media and they don’t generally like if they see advertisement that is not clearly disclosed as such. Non-compliance with legislation affects negatively on the influencer’s and brand’s reputation. Making sure legal compliance is in the top priority for parties should, therefore, be highly important for both parties.

Do not forget to include writing about following the terms and conditions of each platform and not infringing others’ intellectual property rights.

If someone paid for your ticket to paradise, do not forget to disclose it.

CONFIDENTIALITY – WHO HAS TO BE HUSH-HUSH?

Social media influencer agreements often contain confidentiality provisions to protect sensitive information both parties may learn during the agreement’s term. For example, the brand might launch a new product or tell other sensitive information to the influencer. Often it’s also in the advertiser’s interest to keep the influencer from sharing the terms and conditions of the influencer marketing campaign.

It can also be that the influencer discloses to the brand something that they want to stay confidential, for example about their metrics. Quite often the writing of confidentiality provision is such that it only obligates the influencer. If two-way confidentiality is desired by the parties, pay special attention to the writing of this clause.

Usually, unless there is a large quantity of confidential information, a separate confidentiality agreement is not necessary to broaden the scope of the protection provided by a well-drafted confidentiality provision. On the other hand, a separate non-disclosure agreement might be needed if confidential information is shared during the negotiations before signing the final contract.

Remember to decide whether the confidentiality will survive expiration or termination of the agreement. Sometimes the confidentiality obligations should only survive for a certain period after termination of the contract, and if that’s the case, it should be clearly stated.

SCOPE AND OWNERSHIP OF INTELLECTUAL PROPERTY – WHO OWNS WHAT?

There is a lot of intellectual property (at least copyright and trademarks) related to the influencer agreement. The brand owns intellectual property, for example its’ trademarks. The influencer will usually be creating content for the brand and owns the copyright for that unless nothing else is agreed. Sometimes the influencer has trademarks, perhaps their own name is trademarked, and the brand can not use it without a license.

Therefore, negotiating the scope and ownership of intellectual property is a huge part of the deal. From the influencer’s point of view, assigning the copyright ownership of the content that has been created is not very alluring – unless the compensation is very good. The brands don’t often want to pay that much extra for owning the copyright. That’s why it’s quite usual to agree upon licensing the copyright to the brand.

From the brand’s point of view, the license should be as extensive as possible. It’s good to consider where they want to use the posts, photos and names: only “repost” on social media or also on other platforms, such as in print? Pay also attention to the time the license is valid.

Sometimes the brands forget to permit a license to their logo and other trademarks. From the influencer’s point of view, in that case, there is a risk that the brand could accuse the influencer of trademark infringement if something goes wrong. From the brand’s point of view, it is never good practice to allow anyone to use your trademarks and logo without a license.

EXCLUSIVITY – WHAT ELSE CAN BE PROMOTED?

Influencers are loved and respected for their authenticity. Part of that authentic image is engaging with several brands and products. Their followers value their opinions which is the point of using them in marketing campaigns and collaborations.

In the influencer’s interest is to be as unlimited as possible when it comes to choosing brands they work with. Of course, working with two or several competing brands from the same sector is not good for the influencer’s creditability either.

From the brand’s point of view, an influencer-led campaign may easily lose its effect if the influencer goes on to promote a competitor’s brand or products not long after. Many nasty disputes are caused because of not including an exclusivity provision in the contract. However, negotiating about exclusivity may be hard and expensive when dealing with the major influencers. Micro-influencers are more willing to agree on exclusivity.

It is good to say explicitly in the influencer agreement what is prohibited: name the direct competitors and define similar products or services. Don’t forget to set a time limit for this obligation.

When drafting an exclusivity clause, make sure it’s in compliance with relevant laws.

TERM AND TERMINATION – WHAT HAPPENS WHEN THE CAMPAIGN IS OVER?

Normally the relationship between the influencer and the brand is not meant to be eternal, and in any case, it never will be. Even if the co-operation is for longer time, there should still be provisions about the term and termination.

In the brand’s interest is to obtain strong termination rights for reputational damage, failure to comply with applicable legislation and breach of the terms of the agreement.

If the advertiser sets special success results, the influencer needs to be very careful that they understand what is actually expected from them. The measures of success need to be in clear writing.

One important thing to consider related to the termination is survival of other clauses in the contract. Which provisions shall still apply after the termination? Think especially confidentiality, exclusivity and ownership of the IP.

HOW CAN VEDINOR HELP YOU?

If you are dealing with influencer campaigns and need help with contracts, we are more than happy to assist and advise you. We bring to the table the following combination: our profound understanding of this unique form of marketing, an in-depth understanding of social media and how different platforms work, and a sound legal experience. If you are interested in our influencer marketing related services, please schedule a free consultation, email us at communications@vedinor.com or reach out to our Partner, Legal Counsel Anne Nyström directly.

Common Mistakes in Instagram Giveaways

Throwing contests and giveaways or sweepstakes is a popular marketing technique. Your audience becomes more engaged and aware of your brand. However, there are many issues that need to be taken into account when throwing a social media contest. We know how challenging and overwhelming the legislative obligations can feel, but don’t worry, we are here to make things more clear for you.

Note: this post is not written to follow any specific jurisdiction’s rules, but Instagram Promotion Guidelines and general legislative rules typical to contests and giveaways internationally.You should always make sure you are following the rules relevant in your jurisdiction and in the jurisdictions where your contest/giveaway is targeted to.Instagram’s Promotion Guidelines are subject to change every now and then, so always check the current version before launching a promotion. This article is based on the Guidelines as they were on March 14, 2020.

YOU DON’T HAVE THE OFFICIAL RULES

How often I see the official rules of a contest or giveaway on Instagram? Rarely. Usually, only the biggest and most-compliant brands use them regularly, but even they don’t always follow the rules, especially when they are co-operating with influencers. However, whenever I see a small brand or company having promotions with official rules, I am thrilled to find more about them. If they are professional and compliant in small things, I am definitely interested in doing business with them. You should never underestimate the impact of what these kinds of things can have on your prospects or clients.

Obviously the above is not the most important reason to have the rules. The most important reason in our case is simply that Instagram obligates you to have one. Being non-compliant with Instagram’s Guidelines, you might end up getting your promotion removed. Imagine how that would affect your brand!

The real reason why you should have the rules is that it is basically a contract between you and the participant. It defines the relationship between you and grants you both rights and obligations that you would not have otherwise. It protects you from getting sued or ending up in litigation. The most recommendable way is to have a link to your webpage where you have the official rules. Remember, do not change the rules after launching the promotion.

YOU DON’T DISCLOSE ELIGIBILITY REQUIREMENTS AND CLEAR TERMS

You should at least offer eligible age and place of residency in the promotion post if those are included in the criteria to enter. You can simply state something like“Giveaway open to Canadian citizens age 18 and up.”

Remember that often the minors are protected by stricter regulation and if you through your promotion in many geographical areas (foreign jurisdictions) you are more likely to be non-compliant with local regulations.

If there are any additional terms, for example, that the entrant’s profile must be public, not private or the participants need to pay for postage, you must state this in the original promotion post.

YOU DON’T DISCLOSE COMMERCIAL CO-OPERATIONS

If the prize is sponsored by a third-party and you disclose that information, in most cases and jurisdictions you are considered to be in commercial co-operation with that party. That means that relevant regulation and guidelines related to (influencer) marketing and consumer protection become relevant (see for example the CAP guidance in the UK). Most importantly, you need to disclose clearly the commercial relationship.

In the EU, UK, and US, the safest option is to start your promotion posts with #ad, #advertisement or “In commercial collaboration with [Party X]”. Remember that in most jurisdictions, it is not enough to only use the paid partnership tool.

YOU IGNORE RULES AND REGULATIONS GOVERNING SUCH PROMOTIONS

Instagram obligates you to follow with any rules and regulations that govern contests, giveaways, and sweepstakes in your jurisdiction. These tend to vary in detail, so make sure you know what is relevant for you.

For example, if you need to register it or get approval from some authority, you need to do that also to be in compliance with the Instagram Guidelines.

YOU ENCOURAGE USERS TO INACCURATELY TAG CONTENT

One of the often ignored and violated Instagram rules is that you cannot make it an entry requirement to get users to tag their friends in a picture which is not an image of them. Guess how many promotions are shut down because of not following this rule?

Instead, in light of the current guidelines, we suggest using branded hashtags, following requirements, asking for creative captions or asking users to share the promotion post in their Stories.

YOU DON’T RELEASE INSTAGRAM BY EACH ENTRANT OR PARTICIPANT

It’s a good business practice to follow Instagram’s rule that you need to release Instagram by each entrant or participant, so remember to include that in your posts and rules.

YOU DON’T ACKNOWLEDGE THAT INSTAGRAM IS NOT INVOLVED IN THE PROMOTION

Using Instagram’s own wording related to this guideline is the simplest way to be in absolute compliance, therefore our suggestion goes: “The contest/giveaway is in no way sponsored, endorsed or administered by, or associated with, Instagram.”

There is a reason why Instagram uses word verbs in that part of their Guidelines, and it’s not the same thing to ONLY mention “sponsored” or “endorsed”.

CONSEQUENCES OF NOT FOLLOWING THE INSTAGRAM PROMOTION GUIDELINES

“You agree that if you use our service to administer your promotion, you do so at your own risk.”

Instagram Promotion Guidelines

As it is clearly stated in Instagram’s Promotion Guidelines, using Instagram for promotions is done at your own risk. Among other things, that means that if you are not in compliance with Instagram’s Guidelines, you could get your account canceled in the worst case (for example, if you constantly run non-compliant contests and giveaways in your account).

Secondly, not following relevant and required rules and regulations will make your brand look ignorant and amateur. This will essentially have a negative impact on brand reputation. This also applies to any influencers that brands use in their marketing, but naturally, the influencer has their own reputation to protect, as well. As influencers are professionals in commercial collaborations, they should be aware of the relevant legislation that concerns those activities.

HOW CAN VEDINOR HELP YOU?

We are experienced in the legal side of different kind of promotions and marketing techniques online, such as giveaways, sweepstakes and contests. With our help, you can be sure that your campaigns meet both legal and platform standards and rules. If you need help with official rules, promotion compliance or information about different social media platform requirements, do not hesitate to contact us or book a free consultation.