In the age of digital marketing, collaborating with influencers has become an essential strategy for brands looking to expand their reach and connect with their target audience. However, working with influencers without a proper legal framework is no longer a viable option. As the influencer marketing industry continues to grow, so does the need for clear and precise contracts that regulate these collaborations.
It is essential to understand that, in Spain, a contract is essential to formalize any agreement with an influencer. Omitting this step can lead to very costly conflicts and damage to your company’s reputation. Legislations are specific about what a contract must include, and it is essential that brands are aware of these regulations to protect their interests.
In this article, we will explore the importance of contractual agreements in influencer marketing and provide practical tips for negotiating successful collaborations. You will learn how to establish a solid and transparent relationship that maximizes the impact of your campaigns.
What is an influencer marketing contract?
An influencer marketing contract is a legal agreement between two parties: the influencer, who is a public figure on social networks, and a brand or company seeking to promote its products or services. This type of contract is fundamental to define and formalize the collaboration, ensuring that both parties are aligned in their expectations and responsibilities.
It clearly establishes the purpose of the agreement, including the types of content to be created, the frequency of publications and the channels on which they will be shared. It also details the compensation that the influencer will receive, whether in the form of monetary payment, products or services.
In Spain, since October 2020, the “Code of Conduct on the Use of Influencers in Advertising”, developed by the Association for Self-Regulation of Commercial Communication (AUTOCONTROL) and the National Institute of Consumer Affairs, has been in force since October 2020. This code establishes guidelines for responsible advertising, requiring influencers to clearly identify sponsored content through terms such as “advertising”, “publi”, or “in collaboration with”. This not only ensures transparency to the audience, but also protects consumers.
Differences between contracts with influencers and the provision of services
The influencer contract and the service contract are both legal agreements that regulate the relationship between a professional and a client, but they differ in their nature and in the type of services they address.
Service Contract:
This type of contract is broader and refers to any agreement in which a professional agrees to perform a specific service in exchange for compensation. Services can cover a variety of areas, from consulting and education to technology and communication services. The flexibility of this type of contract allows it to be adapted to various activities and sectors, specifying the obligations and expectations of both parties.
Influencer Contract:
The influencer contract, on the other hand, is a specific type of service contract focused on the promotion of products or brands through social media platforms. This contract not only details the influencer’s obligations in terms of content and frequency of publications, but also focuses on aspects such as the identification of the sponsored content, the agreed compensation and the brand’s expectations regarding the collaboration.
Type of contracts that exist
Although there is no single type of specific contract for collaboration agreements with influencers, Spanish law allows the use of different types of contracts depending on the objectives and nature of the relationship between the brand and the content creator:
- Commercial Contract or Service Lease Agreement: This is the most common type in influencer marketing. Governed by the commercial code, this contract establishes all the conditions for the development of the digital campaign between the brand and the influencer. It is less rigid than an employment contract, allowing for greater flexibility in the relationship. It specifies aspects such as the content to be created, the frequency of publications and the economic compensation, providing a clear framework for both parties.
- Labor Contract: Although less frequent, in some circumstances brands opt for a labor contract, especially when they require the influencer to perform tasks on a recurring basis or under a certain subordination, for example when they work as brand ambassadors. This type of contract is governed by the Workers’ Statute Law and establishes stricter rights and obligations, such as the inclusion of a fixed salary, working hours and benefits. However, its use should be carefully considered, as it can transform the nature of the collaboration.
- Image Rights Assignment Agreement: This contract is used when the influencer authorizes the brand to use its image in exchange for compensation. Given that the right to one’s own image is a fundamental right protected by the Spanish Constitution and the Organic Law on Civil Protection of the Right to Honor, Personal and Family Privacy and Self-Image, this contract is essential to ensure proper use of the influencer’s personal image. It details the conditions under which the brand may use the image, as well as the duration and scope of such authorization.
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How to make a contract with influencers?
Creating a contract with an influencer is a crucial process that lays the groundwork for a successful partnership. Below is a step-by-step approach to drafting an effective contract:
1. Collect personal data
It includes the full names of the parties, their addresses and contact details of both the advertiser (brand) and the influencer. It also explains the type of campaign to be carried out and the objectives to be achieved.
2. Define the duration of the collaboration
Specify the duration of the collaboration. Consider whether it will be a short-term or long-term agreement. Long-term relationships tend to be more effective, but make sure it fits your needs.
3. Establishes the remuneration
Detail the amount to be paid to the influencer and the payment methods (upfront, partial payments, etc.). Take into account factors such as the influencer’s reach, engagement rate and the duration of the collaboration. In turn, define when and how the payment will be made. For example, how much is paid upfront and how much after delivery of the content? It is important that both parties agree before signing.
4. Regulates creative expectations
Clarify what your expectations are regarding content and desired results. While it’s good to allow for influencer creativity, establish the KPIs (key performance indicators) you’d like to measure.
5. Delivery of statistics after collaboration
Make sure to include in the contract that the influencer must provide you with the statistics of the promoted publications, so that you can measure the reach and analyze the impact of their content.
6. Establish copyrights and licenses
Clarify who owns the content created. Include the necessary licenses and authorizations for the use of the content, both by the brand and the influencer. In case you want to use their image to promote it in ads, web or email marketing campaigns, it should also be specified in the contract.
7. Include exclusivity clauses
If you consider it necessary, you can include a clause prohibiting the influencer from collaborating with competitors for the duration of the campaign. Keep in mind that exclusivity is paid for.
8. Review and signing of the contract
Make sure both parties review the contract to resolve any questions or modify clauses before signing. Once both parties agree, sign the contract. Remember that payment is due only after the agreement is signed.
Key points to consider in your model contracts
When creating contracts for collaborations with influencers, it is essential to consider several key points that will ensure clarity and protection for both parties. These fundamental aspects are detailed below:
- Exclusivity clause: Although optional, many brands prefer to include a clause that prevents the influencer from promoting competitors’ products within the same category. This helps maintain a consistent image and protect the brand’s reputation.
- Deceptive Practices: It is important to include clauses that address deceptive practices. This means that the influencer must provide truthful information about their metrics, such as number of followers or traffic statistics. By requiring transparency, potential future litigation and penalties for false information are avoided.
- Terms and Conditions: This section is crucial, as it establishes the mechanisms necessary for the execution of the contract. It should include all clauses that define the rights, responsibilities and obligations of each party. Make sure that both parties approve and consent to all terms.
- Content Type: Clearly define what type of content the influencer is expected to generate. This content should be new and unique, aligned with the brand identity.
- Number of posts: Establish how many posts the influencer should make on their social networks and over what period. This helps ensure that the objectives of the campaign are met.
- Content Guidelines: If the brand has specific requirements, such as the use of certain hashtags, keywords or slogans, it is important to include these guidelines in the contract.
- Promotion Channels: Specifies on which platforms the promotion will take place (e.g. Instagram, Facebook, TikTok), allowing both parties to have a clear view of the marketing efforts.
- Contract Duration: Define whether the contract is for a specific campaign or if it extends over a longer period. This helps manage the expectations and commitments of both parties.
- Payment Method: Detail how and when payment will be made to the influencer. Make sure both parties agree on the compensation structure.
- Penalties for Fraudulent Activity: Includes potential penalties in the event that the influencer is found to have purchased followers, likes or any type of fraudulent interaction. This protects the integrity of the campaign.
- Content Ownership: Clearly defines who owns the rights to the content created. It includes clauses on copyrights, licenses and authorizations necessary for the use of the content by third parties.
- Cancellation clause: clearly establishes the reasons for which the contract may be cancelled.
It’s time to take the next step:
At Flowflamingo, we understand the complexities of influencer marketing and are here to help you navigate this exciting but challenging world. Our team of experts will not only assist you in drafting solid contracts that protect your interests, but will also guide you in selecting the right influencers that align with your brand.
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