Do you use influencer marketing to promote your business? You are not the only one!
Influencer marketing is increasingly widespread in Canada: influencers, Instagramers, and YouTubers with a mass following are now solicited by businesses to promote their products and services on their online platforms.
However, in order to avoid unpleasant surprises, it is important to negotiate a contract between your business and the influencer who will be promoting your products or services. Here are 5 elements to address in your influencer marketing agreement.
Of course, this blog post constitutes legal information and not legal advice. If you have any additional questions regarding influencer marketing agreements or contract drafting in general, do not hesitate to contact us!
1) Content and Publication Platform
Ask yourself the following questions:
- What type of content do you want the influencer to create to promote your products? An Instagram story, a YouTube video, a Facebook post?
- Does the influencer have to follow a script, and must he send the content for approval to your business before its publication?
- Does the influencer have to publish the content according to a publication schedule, and when can he delete the content promoting your products, if at all?
It is important to include the answers to these questions in your agreement, so that the influencer’s obligations regarding the promotion of your products or services are clear.
As well, make sure to use any advertising platform’s features that allow you to indicate a partnership between the influencer and your business as well as the advertising nature of the content. You risk infringing advertising and consumer protection laws if you do otherwise.
2) Intellectual Property
A useful influencer marketing agreement may stipulate that your business has the right to use the influencer’s content promoting your products or services, for example, for your advertising campaign. It is up to you to decide how long, on which territory, for which purpose, and on what platform your business can use such content (e.g. your business’s social media, its website, etc.).
It is essential to determine in your agreement that the influencer is prohibited from promoting products similar to those sold by your business during your influencer marketing campaign or shortly before/after your campaign. For example, if you operate a business selling swimsuits, you can prohibit the influencer from promoting other swimsuit brands.
Don’t forget that these restrictions need to be reasonnable and to make sense. If you sell makeup, an influencer who regularly speaks about makeup most likely won’t be able to stop promoting other makeup brands.
Make sure to specify the exclusivity period, or the period during which the influencer is unable to promote products similar those sold by your business (e.g. 2 months, 4 months, etc.).
To protect information concerning your business, such as trade secrets, new products, client lists, and more, it is judicious to include a clause in your agreement obligating the influencer to keep such information confidential.
You can make the influencer pay a reasonable penalty sum for the breach of this obligation.
Finally, it is absolutely essential that you are able to terminate the agreement without prior notice in the event that the influencer’s behaviour no longer suits your brand image.
If the influencer’s behaviour is immoral or scandalous, or if he was accused of fraud or of any other crime which may harm your brand image, it would be best to dissociate your business from this influencer as quickly as possible.
You can also provide for the termination of the contract for any other reason with notice (e.g. 10-day notice, 30-day notice, etc.).
If you have any additional questions regarding influencer marketing agreements or contract drafting in general, do not hesitate to contact us!