One of the latest trends in advertising, with both large and some of the more modest brands, is advertising through influencers. However, little attention is paid to contracts with influencers by the advertising sector.
Although it is true that it is nothing new for brands to take advantage of the notoriety of certain personalities, such as sportspeople, singers, models, etc, in order to reach a mass public through a more engaging advertising, the current trends often opt for lesser known faces, although in practice, they are equally effective.
In spite of this, one of the forgotten aspects in such relationships are the contracts.
Influencers are, without doubt, a great medium for an advertising engagement. They are capable of moving groups of all consumer profiles through the influence of their advice, style or life habits. However, although in these cases we are not dealing with two large companies, it is no less important for both parties to regulate their commitments in writing in order to obtain a minimum guarantee of success.
The main aspects to take into account when closing an advertising collaboration are:
- Conditions and Price
We must make clear what is intended to take place in the greatest possible detail, and consequently, the financial consideration that the influencer shall be entitled to, whether it is monetary or otherwise.
- Image rights
One of the most important aspects in agreements with influencers is the transfer of image rights for the brand. The use of image rights should be limited in time and it may also be limited in the number of times used. This is a very relevant aspect for this type of relationship. Obviously, the transfer of image rights for long periods may generate a profit for the brand which is disproportionate to the compensation set forth in the contract.
The transfer of the image rights, which on many occasions is established in contracts for an indefinite period, is abusive. This was pronounced as such by the Supreme Court years ago. The court deemed that whilst the transfer is a consent, which is revocable at any time, it may not be extended indefinitely. For this reason, it must be limited in the way that best suits the case, and even then, the person concerned will still be able to revoke his or her consent. However, in this case, certain damages may result.
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- Legal compliance
As far as the execution of advertising agreements is concerned, the parties must adhere to the limits of the General Law on Advertising and the Law on Information Society Services and Electronic Commerce, among others, regarding contracts with influencers.
This entails certain practical obligations in order not to fall prey to covert advertising practices. In particular, it is necessary that the influencer in question gives clear signals in its content/publication that it is advertising content. This is as simple as including, for example, a hashtag such as #ad, #publicity, #advertising. Even so, many Internet users forget this detail, and could be fined up to Euro 30,000 by the competent authorities.
Likewise, we must not forget those brands that are attached to advertising self-monitoring bodies. These must follow the regulations issued by such bodies in all their advertising campaigns, even though it is through agreements with influencers.
- Intellectual property
In this case we are referring to the content. It is relevant to make clear who will own the content created for advertising. That is to say: it may be considered that the content shall belong to the brand (as in the case of filming a television commercial, where the actors do not retain rights over the recording) or that the content will belong to the influencer. However, at the present time, it is usual that the ownership of the content remains in the hands of the influencer, since they control the emission and use thereof.
- Data protection
Another of the most disputed aspects is the holding of draws, where data are collected from participants, in most cases without complying with the regulations. We must take into account that in order to comply with the data protection regulations we must always previously inform those concerned about the use that will be made of their data. This involves drafting a notice adapted to each case and to the platform being used. Choosing a comment from a publication is not the same thing as having to subscribe through a website.
Conclusion
In essence, although on many occasions the retribution corresponding to the collaboration or the profit obtained is proportionately low, the consequences derived are fairly relevant. For this reason, we should always seek correct advice on any queries, in order to guarantee piece of mind at all times and to try, as far as possible, to have all agreements in writing. This way, future misunderstandings shall be avoided, and a solid basis for claims is established.
Andreas Terán
Vilá Abogados
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15th May 2020
