Influencer marketing under control: A good contract is the key to success
Influencer marketing is one of the fastest-growing promotional channels. It allows marketers to reach a wide group of recipients. According to a report from Influencer MarketingHub, the global value of influencer marketing topped USD 21 billion in 2023, and was expected to reach USD 24 billion in 2024. The success of a campaign does not depend solely on choosing the right influencer. A key element is a carefully prepared contract adequately protecting the interests of the parties and ensuring proper implementation of the objectives of the campaign.
Influencer—a professional
Modern marketing puts influencers at the centre of promotional activities, making them important business partners in building the image of brands and products. Whether influencers conduct registered business activity or operate as individuals, they must demonstrate professionalism.
In the Recommendations on Marking of Sponsored Content, the president of the Polish Office of Competition and Consumer Protection (UOKiK) has pointed out that although they do not always have the formal status of a registered business, influencers must act with due care. This results from their influence over consumer decisions and the professional nature of the activity.
For the client, this means that it has a right to expect proper performance by the influencer, at the standard expected of a business, with responsibility for the quality of the materials, scrupulous adherence to campaign arrangements, and knowledge of the relevant laws, e.g. governing the marking of advertising content.
Legal and organisational models for cooperating with influencers
Cooperation with influencers can take various legal and organisational forms. Most often, a contract is made directly between the advertiser and the influencer, or with the participation of an advertising agency as an intermediary. The choice of the appropriate model depends on the agency’s role: whether it is limited to intermediation, or acts as a coordinator responsible for the influencer’s activities.
A direct agreement between advertiser and influencer gives more control over the cooperation, but also requires the advertiser to be actively involved in selecting the influencer, negotiating the terms and conditions, and overseeing implementation of the influencer’s activities.
By contrast, a contract between advertiser and advertising agency often delegates these duties to the agency, which can be convenient but carries the risk of limiting control over the content created by the influencer. In such cases, it is vital to precisely define the scope of the agency’s liability, including possible consequences of the influencer’s acts or omissions, such as failure to designate sponsored content properly.
The three-party model, in which the contract includes the advertiser, the agency and the influencer, may provide a comprehensive solution, although it requires time-consuming negotiations. This approach makes it possible to regulate the relationship between all parties in detail, but also requires a precise division of responsibilities and careful wording of provisions regarding the obligations of each party.
In practice, contracts between advertiser and influencer, without the intermediation of an agency, are common. Often such agreements are entered in less formal ways, for example through email exchanges or instant messaging. It is worth remembering that some actions, such as transferring copyright to materials created by an influencer, require written form for their validity—without it, the client may not acquire the right to use the materials, despite the payment of a fee. For greater security of cooperation, it is good to prepare an agreement in written or electronic form (with a qualified electronic signature). This form provides greater certainty and transparency of the terms and conditions of cooperation, and also makes it easier to pursue claims in court if necessary.
Key elements of a contract with an influencer
Precise definition of the influencer’s duties
The agreement should clearly define what content the influencer agrees to create and where and when it is to be published. It is important to indicate the required publication formats (e.g. posts, videos, testimonials), the schedule of activities, the use of specific hashtags, or mentions of the brand. The contract should also include the possibility of approving the content before publication, to ensure that the material is consistent with the brand image and campaign objectives.
Schedule of activities and reporting of results
A precise description of publication dates and the obligation to report campaign results are important elements of the contract. The advertiser should be able to monitor the effects of the cooperation, including access to statistics on reach, audience engagement, and any potential purchases made through affiliate links or discount codes.
Fee and payment terms
The influencer’s fee can be set in various ways, for example as a fixed amount per campaign, a fee for individual posts, a commission on sales, or a performance-based fee (e.g. the number of clicks or other measure of engagement). It is important to precisely define the rules for payment of the fee, including payment dates and potential sanctions if the influencer fails to live up to the agreement.
Content labelling
The agreement should include detailed requirements for marking sponsored content, in accordance with applicable provisions, including the UOKiK guidelines. Failure to comply with this obligation can result not only in negative image consequences, but also financial sanctions for the influencer and the advertiser.
Copyright and image protection
It is important to consider provisions for transferring copyright or granting a licence to use materials created by the influencer. The lack of such provisions may prevent the client from continuing to use the content after the cooperation ends. Additionally, permission to use the image of people appearing in promotional materials created by the influencer should be included.
Protection in the event of an image crisis
Cooperation with influencers offers not only benefits, but also potential risks. It is worth considering mechanisms allowing the brand to immediately terminate the cooperation when the influencer’s behaviour is damaging the brand image. For example, participation in controversial events, publication of inappropriate content, or activities contrary to the brand’s values should be grounds for termination of the contract.
Conclusion
Collaboration with influencers can be an effective tool for building a brand’s image, but it requires precise contract terms. It is important that the agreement cover key elements, such as the influencer’s duties, the schedule of activities, the method of reporting results, and the fee rules. Detailed provisions will allow the parties to avoid misunderstandings and ensure the safety of cooperation. Also, care should be taken to properly address issues of copyright, content labelling, and possible termination of the contract in the event of actions detrimental to the brand image. A good influencer marketing contract will safeguard the marketer’s interests and help achieve the intended aim of cooperation with the influencer.
Patrycja Gierdal, Intellectual Property practice, Wardyński & Partners