Influencer Contract

Influencer Contract / Influencer Vertrag

April 04, 2024

The basic idea behind influencer marketing is that the recommendations or mentions of products by these influencers* are perceived as more authentic and trustworthy than traditional forms of advertising. Influencer marketing is a marketing strategy that relies heavily on utilising the reach and, in particular, the credibility of influencers to promote products or services and appeal to potential customers. This form of marketing has experienced an enormous upswing in recent years and has become an integral part of many marketing campaigns. The agreement between companies and influencers is crucial to the success of influencer marketing. This agreement usually includes the terms of the collaboration, such as the posts that the influencer is to create, the type of content that is to be created, the duration of the campaign and the influencer's remuneration.

The posts that influencers create as part of an influencer marketing campaign can take various forms, including product reviews, sponsored posts, stories, videos, live streams or even participation in events or launch events. These posts are then published by the influencers on their own social media platforms, where they can potentially reach a wide audience due to their wide reach and engagement.

A well thought out and effective influencer marketing campaign can help companies increase their brand awareness, target their audience, gain consumer trust and ultimately increase sales. However, it is important that companies remain transparent and authentic when implementing influencer marketing campaigns in order not to lose consumer trust and build long-term customer relationships.

Influencer contracts are usually concluded between advertising companies and influencers and regulate the most important content of the collaboration. Advertising companies often outsource the implementation of advertising measures to advertising agencies, who then prepare and finalise the respective influencer contract. Depending on the reach, the influencer may also be represented by a management team. In the influencer contract, the parties involved define the framework conditions of their business relationship so that it is clear what rights and obligations they each have and what the threat is in the event of breaches.

What is an influencer contract about?

The subject matter of the influencer contract can be divided into two parts, which can be commissioned together or separately. One part is the creation of content, i.e. advertising content, and publication on the influencer's channel. Insofar as this is the only service, it is usually referred to as creator marketing. However, rights to this content are also often acquired. For example, the right to distribute the recorded material via the company channel itself or to use it in advertising contributions (so-called creator-led ads).

Creator content

Influencers advertise a product or service by filming a video, posting a text or photos (usually) on social media channels and receiving remuneration for this. The company usually provides the influencers with a briefing in advance, which sets out how the company's product or service should be presented. The influencer's content, i.e. the video, photos etc., is then posted on the influencer's own social media channel. If this is the content of the contract, the company is not granted any rights to the content. Accordingly, no clause on the granting of usage rights is contractually required in these cases. Payment is made for the implementation of the commissioned service.

Granting of rights / buyouts

However, it is also possible that the content is to be published exclusively or additionally on the company's channels or as an advertisement. As this is usually copyrighted material in accordance with Section 2 German Copyright Act (UrhG), the company must have the rights to the content granted in these cases (see buy-outs below) and remunerate them accordingly.

Components of the influencer contract

Services - posting and/or ad (also deliverables)

It is important that the contract clearly states which services the influencer has to provide. Should a video be shot? How many seconds/minutes long should it be? In which format? On which channels should it be published? It is also essential to define deadlines, e.g. deadlines for completion, the approval process, a date on which the content is to be published and posting frequencies. A period of time can also be defined during which the influencers must leave the content accessible on their social media profiles and the question of whether and, if so, when the influencers may delete the content can be addressed. At the same time, companies also like to reserve the right to instruct influencers to remove the content if it turns out that the provisions of the contract have been breached or the content no longer fits in with the company's values (takedown). In return, the influencer receives remuneration for creating the content, which is often only due after the content has been released.

In addition to the main obligation, the creation of content, the influencer also has to adhere to other requirements that the contract should regulate. For example, it is often agreed that the product or service should be presented in a positive light, but only statements that reflect the honest conviction and experience of the creator should be made. Another important point is often that the influencers are obliged to provide the services personally, which means that they cannot subcontract third parties.

Rights of use / buy-outs

If the company wishes to edit or utilise the content itself, for example by publishing it on its own website or company social media profiles or in an advertisement, the influencer must transfer the corresponding rights of use (buy-outs). Unlike in the USA, for example, where the content created by the influencers changes hands upon payment of the agreed remuneration, influencers in Germany remain the authors of the content at all times. Only the rights of use can be transferred in accordance with the Copyright Act and thus authorise third parties, in this case the company, to use the content. The extent to which these rights are to be transferred should be regulated in the influencer contract. Simple or exclusive, temporally, spatially and content-wise limited or unlimited rights can be transferred.

If the scope of use has not yet been conclusively agreed, so-called options can be agreed. Options are used to define conditions for later use, for example if only one story is to be played on one channel initially, but the video is to be reused or adapted for another channel at a later date. Options can also be used to map a later extension of terms.

Third-party rights / acceptance / advertising labelling

Influencers are also regularly obliged to provide content that is free from third-party rights. In particular, care must be taken not to infringe any other trademarks or copyrights and not to depict any persons on the content without their consent.

The question of whether and how the content should be approved or released before publication is extremely important. Various approval processes have become established in practice.

It is particularly important and often not implemented correctly that the content is properly labelled as advertising upon publication. Influencer contracts therefore regularly contain precise instructions for this.

Concurrence of rights

If an agency works for the company that commissions the influencer, it is essential to ensure that the agency does not promise the company more extensive rights of use than it has actually obtained from the respective influencer. What sounds logical often leads to problems in everyday agency work. If there is a discrepancy between the rights obtained, the agency is liable for damages in case of doubt. The first step should always be to check the extent to which the agency must provide the company. For its part, the agency must obtain the rights from the influencer to at least this extent. Ideally, the agency should have a small amount of leeway with regard to the rights obtained.

Exclusivity

Companies usually have a strong interest in obliging influencers not to advertise the products or services of competitors and rivals of the company, at least for the duration of the contract, but rather to work exclusively for the commissioning company. Such exclusivity usually has an impact on the level of remuneration.

Confidentiality

The protection of trade secrets and the confidentiality of information is essential. The Trade Secrets Act provides a framework for dealing with trade secrets. According to Section GeschGehG, for information to constitute a trade secret, it must be information that is secret and of commercial value, that is protected by appropriate confidentiality measures and for which there is a legitimate interest in confidentiality. Corresponding confidentiality clauses in the influencer contract should therefore prevent sensitive information from being disclosed to the public or third parties. If an NDA has not already been concluded before the influencer contract is signed, such a clause must be included as part of the influencer contract.

These points explained above should be an integral part of an influencer contract. More extensive and different provisions may be required on an individual basis. It all depends on the framework conditions of the collaboration, the specific project and the content to be created. We can advise you on your project and draw up suitable contracts or review existing contract templates. Get in touch with us.