What is an influencer contract? 

An influencer contract can be simply defined as an agreement between an influencer and a company (brand) that outlines the terms of their collaboration. The marketing purpose of such collaboration does not require further explanation— influencers have large followings on social media platforms such as Instagram, YouTube, or TikTok, and they use their influence to promote products through sponsored posts. 

The collaboration may refer, for example, to product promotion, broader branding, or working as a brand ambassador, which suggests a long-term partnership across various platforms and social events. Regardless of the type of collaboration you choose, it is advisable to clearly define the terms in the contract. 

To ensure compliance with domestic legislation, do not forget to apply three important laws for such contracts— the Law on Obligations, the Law on Advertising, and the Law on Consumer Protection. 

Why an influencer contract? 

To fully protect the interests of both parties—the influencer and the brand— it is recommended to establish a contract. A contract governing the collaboration ensures that the influencer is adequately compensated for their work, that the intellectual property of both parties is protected, and that the terms of the collaboration, specific requirements, potential results, and their evaluation are transparently outlined in the contractual provisions

Legal nature of the influencer contract

Under domestic law, there is no specifically designated contract under this name, nor is there any act that directly regulates the legal position of influencers. Although terms like influencer contract, influencer marketing agreement, etc., are commonly used, an examination of the Law on Obligations shows that the definition of a ‘contract for work’ aligns with this legal situation. 

Therefore, under a ‘contract for work’, the worker is obligated to perform a certain task (such as the creation or repair of something, or the execution of some physical or intellectual labor), while the client is obligated to pay them for it. 

In the ruling of the Higher Commercial Court (Pž 9474/08), it was determined that a consulting services agreement, as an unnamed contract under our law, corresponds in content to the named ‘contract for work’, and therefore the relevant provisions of the Law on Obligations were applied. 

Although the law does not prescribe a mandatory written form for such contracts, it is still safer for the contract to be in writing. According to the ruling of the Court of Appeals in Belgrade (Gž4 87/22), the burden of proof regarding the content of an oral copyright agreement lies with the plaintiff (author). Given the absence of a written agreement on the work in accordance with the Copyright and Related Rights Act, the court ruled that such a contract could produce legal effects similar to those of a ‘contract for work’ as prescribed by the Law on Obligations. 

If one of the contracting parties is a foreign citizen or a business entity with a registered seat abroad, attention should also be paid to the choice of applicable law. In the ruling of the Court of Appeals in Kragujevac (Gž 1511/12), it was determined that when the contracting parties are citizens of two different countries and have not agreed on which regulations should govern their contractual relationship, the choice is made based on the law applicable in each individual case. 

For long-term collaborations, many industries, including marketing, use a contract called a business-technical collaboration agreement. As it is another unnamed contract, creating it requires a solid understanding of the rules of obligations law. 

What else should be considered? 

In any case, aside from understanding the general rules of obligations law, it is important to consider other laws that may apply in a given situation, such as the Law on Advertising and the Law on Consumer Protection. 

Compliance with the legal framework is assessed in each individual case. For example, in the world of digital marketing with influencers, information is often analyzed, such as statistical data on user engagement to determine an appropriate strategy and serve as a key performance indicator. While personal data contained in comments or user profiles will be subject to the platform’s terms and conditions as well as privacy policies, collecting and processing this data for individual marketing purposes may not always be permitted. 

In foreign practices, there are also ethical commitment agreements. Ethical clauses are not a novelty and have become a common element in sponsorship agreements. In relation to influencers, these tend to be shorter agreements where the influencer agrees to adhere to certain brand values. This can range from a simple declaration to a contract with requirements that the influencer will not like, share, or post anything that could harm the brand’s reputation. The requirements can be reasonable, but they can also be overly broad, so their validity needs to be reviewed on a case-by-case basis. 

Key elements of an influencer contract 

As we’ve established, an influencer contract is an essential tool for establishing a partnership and reducing potential misunderstandings. It serves as a foundation for communication and a way for both parties to understand their rights and obligations. Now, let’s outline some clauses typical of this kind of contract. 

Influencer’s obligations 

The contract should clearly define the influencer’s obligations, including the type of social media platform to be used, the frequency of posts, and their respective timelines. Influencers represent themselves and the brands they collaborate with in various ways to their followers; clearly defined requirements help align the brand’s expectations with the influencer’s individual approach to work. 

Additionally, brands often want to include provisions about content guidelines and control over the influencer’s posts, especially in relation to promoting the company’s products. Transparent communication is key to ensuring a successful partnership. 

Performance evaluation 

Since this is digital marketing, it’s clear that assessing the results is a crucial part of any marketing campaign. Therefore, it is important to reach an agreement on whether the brand will have access to the influencer’s analytical data and how and when the performance evaluation will take place. 

Promotion of competitors

One of the common questions that arise with this contract is whether an influencer can promote competing products and services at the same time. In this case, it is important to carefully define the competing brands, as well as the products and/or services of competing companies that the influencer cannot promote during the contract’s term.  

Intellectual property protection

Social media posts may contain intellectual property, such as copyrights or trademarks. The contract should clearly define who owns the intellectual property, whether the right to use it is transferred, how it can be used, and for how long.  

Compensation 

To ensure the influencer is adequately compensated for their work, the contract must precisely define the compensation terms. It is possible to agree on a fixed fee, payment based on social media posts, or other factors. If the compensation is determined, for example, based on the number of social media posts, the contract may also include payment for activities outside of social media if the brand requires such actions and if such engagements are expected. 

Confidentiality 

Confidentiality can be defined within the influencer contract or in a separate confidentiality agreement. A confidentiality clause typically specifies the consequences for breaching the clause and identifies which information is covered by it. 

Termination of the contract 

In addition to understanding and applying the rules of obligations law, it is possible to specify particular circumstances under which the contract can be terminated and under what conditions. 

Conclusion 

Drafting an influencer contract requires a case-by-case legal assessment and alignment with the relevant regulations in domestic law. While such texts serve as guidelines and educational tools, it is always advisable to consult with a lawyer specialized in contract law. 

Note: This text does not constitute legal advice but is the personal opinion of the author.