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The top 5 considerations to take into account in an influencer contract

26.03.2021
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Introduction

As an influencer, your bread and butter is made from your clients regularly engaging you to create content for them. Whether it’s in the form of photographs, social media posts, or videos, 99% of the time you’ll receive a contract from your client with a whole bunch of legal terms that will more than likely confuse and annoy you. If you read this blog post, hopefully you’ll be better equipped to understand the terms presented to you, and avoid a dispute down the line. Here are the #top5 things that you need to take into account when you go through a contract for the first time:

Nature of the services to be provided

It seems painfully obvious to mention, but you’d be surprised how often the exact requirements of the services you need to perform aren’t set out in the contract. A good rule of thumb is to pretend that you haven’t spoken to your client about what you need to do for them, and then read through the contract with that frame of mind. If you can read through it and objectively know what you’re required to do (for example, how many posts you need to make, and when, and the content that needs to be involved in those posts), then the services are set out with sufficient clarity.

Intellectual Property

This is the big one for all the marbles. Who owns the content that you’re going to create? The de facto position in the law is that the person creating the work automatically becomes the owner of the creation. However, there are exceptions to this rule such as authors who write in accordance with their employment (i.e., employed by newspapers or other periodical publication) or creators whose works are created in accordance with a “contract of service”. The Copyright Act expressly creates these exceptions to the “rule”. Influencers and content creators would likely fall into the latter exception category.

Payment terms

It is important that your expectations of payment are aligned with those of your client. The single most contentious issue that we regularly assist influencers with is the issue of payment. It is crucial that you know when you’re going to get paid, and by whom, and whether there are any consequences for late payment.

We encourage you to use the negotiations surrounding your commercial agreements as a vehicle to communicate your expectations and requirements (e.g. deposits prior to commencing work). You may not negotiate the exact term you wanted but the negotiation may result in a compromise and/or a better understanding of the other parties’ expectations. A #protip is to make sure that the agreement makes provision for interest or penalties on late payments.

What to do in the event of a dispute

The points above have all been designed to get you to avoid disputes. However, what happens if a dispute arises?

The agreement should contain a breach clause that sets out how a dispute is declared. Typically (but not always), the contract will stipulate that the aggrieved party (i.e. the party against whom the breach was committed) must give the breaching party notice of the breach, and allow them a certain amount of time within which to rectify it.

If, after the notice referred to above is sent, the breaching party still hasn’t remedied their breach in the stipulated amount of time, then the next stop is the ‘dispute resolution’ clause. This clause will set out how the dispute must be resolved, and the steps that must be followed in that regard.

If there’s no dispute resolution clause, it’s time to get in touch with a lawyer, who will be able to advise you of your rights.

How the agreement is terminated

All good things must come to an end, and the same is true for contracts. Keep your eyes peeled for a termination clause (they can be hidden in clauses like ‘Duration of the Contract’, ‘Term of the Agreement’ or similar wording to that effect). A termination clause will let you know how and when the contract will be terminated, and what the effect of the termination of the agreement will be. Another #protip here is to make sure that if the agreement is terminated in the situation where you’ve already provided some services, there is a clause inserted that allows you to still be paid for the services that you have rendered. This doesn’t provide you with a mechanism to claim your full payment, but at least you will receive some compensation for your valuable time.

Conclusion

Knowledge is power, and understanding your rights and obligations set out in a contractual agreement is half the battle. Legalese wants to assist its clients in thriving on a global level, and we’re here to assist you through the entire process to ensure that you grow sustainably and manageably from a legal perspective. If you have a contract that is confusing or contradictory, or you’re simply too busy to read through it yourself (it happens, we get it), get in touch with Legalese. #phew

Kyle Freitag – 26 March 2021

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