Businesses are increasingly using influencers to endorse products and act as brand ambassadors on social media, at live events or via other media channels. If you are looking to do so, whether you are a PR agency engaging talent on behalf of a client, or are the client engaging talent directly yourself, there are certain key items to look out for in your influencer or other types of talent agreements.
1. You need to ensure that the talent, or their agent if appropriate, assigns IP rights to you so that you or your client can make use of the output of the services being provided. This includes copyright, talent image rights and moral rights. And that you have the right to use the materials for the required length of time and via the required media channels.
2. You need to place the right obligations on the talent and ensure that the talent gives appropriate warranties and indemnities. The talent should not only be obliged to provide the services, but they should also be obliged to comply with approval requirements, and advertising and content standards. And to inform you of any issues likely to affect your use of their services. The talent should give warranties that include IP rights and not making statements or participating in activities that will prejudice the client or the brand. Indemnities may be appropriate.
3. You should have the right to suspend or terminate the talent’s services for breach and for other specified reasons, including the talent’s incapacity, issues with the client’s production or sales of its endorsed product, or if the talent engages in activities that reflect unfavourably on the client or the endorsed product.
4. The talent should comply with data protection legislation and consent to your collection and processing of their personal data in accordance with your data processing documents or provisions. You should also ensure that you limit your liability to the talent or their agent appropriately within the agreement.
For ease of use it usually makes sense to structure the document so that a schedule itemises the details of the client, talent, brand, product, services, fees, approvals, media channels and other elements specific to each engagement, annexed to a set of terms and conditions.
Nick has a BBusSci, LLB and MBA from UCT and was admitted as an attorney in 2000 (SA) and as a solicitor in 2001(UK). Nick spent time at Dewey Leboef LLP in London before moving to Practical Law Company (UK) for 4 years, Lexis Nexis (SA) for 3 years and an in-house position at a tech business for 4 years. Nick joined Caveat in 2020 specialising in commercial, M&A and tech work.