We often talk about how everyone seems to think the web is a jungle where everything is permitted. While we are seeing some improvements, there is one area that seems to be completely free of rules: influencer marketing. We therefore decided to put together this little guide for online influencers, but that can also be very useful to everyone who is thinking about using influencer marketing for their business.
Of course, please take this as legal information and not legal advice. If you have any questions regarding influencer marketing and its legal considerations, send us an email at info@artylaw.ca.
Agreements with brands and your agent
While we know a lot of influencer marketing agreements usually consist of an email, we always suggest having a proper agreement for all your business relationships. While analyzing a brand’s request for an influencer marketing campaign, make sure the deadlines they are giving you are clear and that you know exactly what it is you need to do.
As for agreements with your agent, we have witnessed influencers having to go to court because of badly written cancellation clauses in contracts. Your agreement with your agency should clearly define their commission, their mandate, as well as how contracts will be handled once you’ve decided to put an end to it. Will your agency keep getting a commission fee for contracts they might have negotiated pre-cancellation? How long will they keep it for? Is there a non-compete clause in your agreement? Take the time to read your contract before signing and ideally, go over it with a lawyer, as they might suggest adding some clauses to protect you.
Canadian Ad Standards
This is a topic that has been very popular in the United States and that is gaining some traction here. As an influencer, you MUST disclose all material relationships between a brand and you. If you get a product for free in exchange for some exposure, you need to disclose it. If you get paid to talk about a product, you need to disclose it. If you have an affiliate link, you need to disclose it. And no, disclosure is not something nice influencers should do if they want to be transparent with their followers (although it is a good reason). These rules are set by the Canadian Ad Standards.
Also, disclosure should not be hidden. Do not try to bury it between other hashtags or use vague ones such as #partnership. For more guidelines, the Canadian Ad Standards recently released their own set of disclosure guidelines. You can read my blog post about this new document here or check out the guidelines themselves on the Canadian Ad Standards’ website.
Intellectual Property
Influencers often hire photographers to take shots of them, which they can then use on their account. Make sure the photographer’s service agreement allows you to use the photos for the needed purpose. Remember that if the agreement does not say anything about intellectual property, the photographer legally owns the rights over the pictures he has taken.
As for your own intellectual property, know that the same concept applies. If you take a picture of yourself for a brand that is meant to be posted on your own profile and you have not given them a license to use the photos, the brand cannot use your shots on their own profiles or for other purposes.
If you have any additional questions you would like to ask us regarding influencer marketing, do not hesitate to send us an email at info@artylaw.ca or click on the link below to schedule a consultation.
