Brand ambassadors and influencers – key considerations
15/12/2023
What do consumer brands need to know before embarking on a brand ambassador or influencer arrangement? These typically involve a celebrity being paid to mention or promote the brand on social media, and potentially also to engage in other forms of promotional activity which include appearances, interviews and promotional sales links for example. This may include co-branded capsule collections.
- Make sure you have a detailed written agreement with the celebrity. You may be surprised at the level of detail required to cover your potential risks and ensure that intellectual property ownership is sufficiently managed.
- Familiarise the celebrity with the brand and the products/services, and decide on the practical details of the arrangements in advance so that these can be included in a schedule: which social media platforms, how frequently, what kind of content and who is responsible for photo shoots? And what items will be either gifted or loaned to the celebrity for use in these activities?
- Ensure that the celebrity is contactable (directly and/or via their agent) and discloses other potentially clashing commitments. On a related point, decide on the degree of exclusivity – will they be allowed to promote competing brands during the term?
- The agreement normally provides for rights of approval of the promotional content, and the right to demand removal of posts. Content must be original to the celebrity and all underlying rights cleared. And the terms must provide for rights in intellectual property relating to content such as photographs and video – both ownership and the parties’ permission to use.
- Reputation is everything, and the celebrity is expected to give warranties and undertakings concerning their behaviour and the content of their promotional posts, breach of which will lead to termination. This requires careful and detailed drafting.
- If the arrangement involves social media, the celebrity will typically provide anonymised analytics. On this, and the brand’s handling of information about the celebrity themselves, data protection compliance should be mandated.
- As well as any specific marketing guidance provided by the brand, the celebrity will be expected to comply with applicable regulations and official guidance, which includes for example prominent use of the “#ad” disclosure label. In particular, the relevant provisions of the CAP Code, CMA Guidance and ISBA Influencer Marketing Code. They should not distort viewer figures by using bots or paid followers. They must not make unsubstantiated claims, nor distort images of the products.
- Other matters include ensuring that the celebrity is responsible for any required visas/work permits and payment of taxes, and that they are not an employee of the brand.
This article is not legal advice, which it may be sensible to obtain before you take any decisions or actions in the areas covered. Please do contact me if you would like an initial discussion of your situation.
