By: Morrison Cooper Staff
October 12, 2023
Understanding the Relationship
When engaging in influencer marketing, it is crucial to clearly define the relationship between the brand and the influencer. It is important to establish whether the influencer is an independent contractor or an employee of the brand. This determination will determine the legal obligations and responsibilities of both parties.
Additionally, it is advisable to have a written agreement in place that outlines the expectations, deliverables, and compensation of the influencer. This agreement should also include provisions regarding intellectual property rights and disclosure requirements, which will be discussed in depth in this article.
Disclosure and Transparency
Transparency is a vital component of influencer marketing. The relationship between the influencer and the brand should be disclosed to the audience to ensure transparency and maintain the trust of consumers. Failure to disclose the relationship can be viewed as deceptive or misleading advertising, which can lead to legal consequences.
To abide by the guidelines set forth by regulatory bodies such as the Federal Trade Commission (FTC), influencers must clearly disclose any material connection with the brand, such as receiving free products or monetary compensation. This disclosure should be unambiguous and placed within the content in a noticeable and understandable manner.
It is the responsibility of both the brand and the influencer to ensure that these disclosure requirements are met. Brands should provide clear guidelines to influencers on how and where to disclose the relationship, while influencers should be diligent in adhering to these guidelines. Implementing a monitoring system to ensure compliance with disclosure requirements is also recommended.
Intellectual Property Rights
Intellectual property (“IP”) is a valuable asset for any brand, and it is crucial to protect it when engaging in influencer marketing. Brands should ensure that all content created by the influencer, including but not limited to photos, videos, and written content, complies with copyright laws and does not infringe upon the rights of third parties.
To safeguard their IP, brands should include provisions in the influencer agreement that clearly outline the ownership and permitted use of the content created. This may include granting the brand exclusive rights to the content for a specified period or in certain geographic locations. Additionally, the agreement should include clauses that prohibit the influencer from using the brand's IP without prior written consent.
It is also essential to conduct thorough background checks on influencers to verify that they have the necessary rights to use any third-party content they may incorporate into their posts. This step helps mitigate the risk of copyright infringement claims and potential legal disputes.
Having a comprehensive and legally sound influencer agreement is vital in protecting the interests of both the brand and the influencer. This agreement should include provisions that clearly outline the scope of work, compensation terms, timeline of deliverables, and guidelines for content creation.
Key clauses to consider include exclusivity, non-disclosure, termination, and indemnification provisions. An exclusivity clause can restrict the influencer from endorsing competitors during the agreement's duration, ensuring that the brand's message remains consistent and exclusive. Non-disclosure clauses protect any confidential information shared during the collaboration. Termination clauses allow both parties to terminate the agreement in specific circumstances, protecting their respective interests. Lastly, an indemnification provision can hold the influencer liable for any damages or claims arising from their actions during the collaboration.
By working with our team of experienced attorneys, we can assist in drafting and reviewing influencer agreements. This ensures that the agreement effectively covers all necessary legal considerations and adequately protects the brand.
Enforcement and Remedies
Influencer marketing campaigns do not always go as planned, and it's necessary for brands to be prepared for potential breaches of agreements or legal issues. In the event of a breach or violation, it is important to be familiar with the available enforcement and remedies.
Sending a cease and desist letter is often the first step in addressing a breach. This formal letter notifies the influencer of the issue and requests immediate resolution. If the issue cannot be resolved amicably, legal action may be necessary. Brands should consult with legal counsel to explore the available legal remedies, which may include seeking injunctive relief, damages, or even termination of the influencer agreement.
Understanding the influencer and brand relationship, ensuring transparency, safeguarding intellectual property, establishing comprehensive contractual agreements, and knowing how to enforce your rights are key elements in successfully protecting your brand in influencer marketing campaigns. By being proactive and incorporating these legal considerations into your influencer marketing strategy, you can minimize legal risks and build a strong and successful brand partnership. Contact Morrison Cooper today to be connected with our experienced team to assist in navigating the legal landscape to protect your brand!