Influencer Marketing Show: influencers need agencies to act as legal middlemen

“Not everyone is going to read through the small print or has access to an advisor or agent, so it’s our job to educate the influencers on contract clauses,” said Robertson.

Speaking at the Influencer Marketing Show on October 21, Robertson called on agencies to step up in their job as middlemen and make sure both sides are satisfied with the deal.

Nikki Herring, director of mums’ influencer agency Channel Mums, highlighted how brands can take advantage of those lacking guidance. She drew reference to a client who had produced a piece of YouTube content for free, which then resurfaced on TV as an ad for an unnamed brand.

“It is so important that creators know what they are signing up for and get the right support and legal advice,” she said.

However, when it comes to compliance, Amy Ralston, IP solicitor at Stephens Scown, said the onus falls on all parties. According to Ralston there is now a wealth of resources to ensure compliance, so it has become “less acceptable” to fall foul of advertising regulation.

“All parties need to make sure that they’re educating themselves and build into the contract the appropriate rules,” she added.

Her views echo the Adverting Standards Association’s warning to influencers earlier this year that ignorance is no defense given the plethora of advice and training available.

Elsewhere, Ralston said the law hasn’t caught up with how fast the influencer industry is growing. “You’ve got these old school lawyers using old school commercial contracts who don’t understand how social media platforms work,” she said.

Ralston advised brands and agencies to hire lawyers who are up to date with platform developments and terminology.

Should brands buy or rent influencer IP?

During the session there was debate around the value of buying influencer IP outright v licensing agreements where brands can rent it for a defined period.

Robertson encourages her clients to buy IP. She said: “Influencers are an extension of the creative team – they know the platforms better than anyone else. You are paying for the association and the content creation skills.”

Herring, on the other hand, called buyouts “outdated” due to the frequency of rebrands. “I’ve never met a client that has fully extracted the value from a buyout – they are expensive, and brands never use it in the way they think they will,” she said.

Herring also said that in the parenting space it is “essential for mum influencers to retain copyright,” stressing a buyout means child content can be distributed anywhere.

Ralston added: “Licensing is a really good way to commercialize more IP. You can build royalty structures and have a payment mechanism that is really flexible.”

Key legal takeaways

• Usage rights should be negotiated early. “Going back to a piece of content that’s already gone live and trying to negotiate usage will be very difficult because a commercially-savvy influencer will charge accordingly,” Robertson said.

• A brief should include territory distribution, length of time for usage, what it will be used for and organic or paid.

• A buyout needs an IP assignment agreement in place to define who the owner is of that content before distribution e.g. the photographer is the owner of the piece of content unless an IP assignment agreement is in place.

• The influencer is responsible for making third parties aware of the usage agreements, for example if they use an actor or a graphic designer they are responsible for that rights deal.