Contracts of your company with influencers: consider 4 key points of intellectual  property

August 25, 2023

Author: Camila Walwyn

The exponential rise of social media in recent years has driven companies to use digital platforms to connect with their audiences as part of their business, marketing and/or sales strategies.

The commercial benefit of social networks and other communication channels also popularized -locally and internationally- the figure of the influencer. This is a person who has the ability to influence his or her audience, from the opinion of a product or service, to making a purchase decision.

For this reason, many companies hire well-known and/or influential personalities to promote their products or services to a certain audience. In principle, the contract of this type of commercial collaboration is of a commercial nature and consists of a simple rendering of services, where generally there is no relationship of subordination or dependency between the contracting parties.

To mitigate your company’s legal risks in this contractual relationship, both parties must consider these key points when entering into a contract with an influencer:

– Important aspects of industrial property: registration and ownership of trademarks.
– Copyright, who owns the advertised content?
– Right of reproduction, distribution and use of the content.
– Exclusivity regarding the influencer: protect yourself from the competition.

Therefore, it is essential to analyze influencer‘s contracts from the perspective of industrial property (considering trademark law), and of intellectual property (with the copyright and reproduction of the content to be marketed).

Both the contracting company and the influencers must take into account the issues that we address in this article.

Industrial property: registration and ownership of trademarks

First, register your marks. According to Law 20-00 on Industrial Property (see article 70, literal a)) a brand is defined as “any sign or combination of signs capable of graphic representation suitable to distinguish the products or services of a company, from the products or services of other companies”.

Although it is obvious, it is a custom for companies (mainly small and medium-sized ones) to promote the launch of merchandise without registering their brands beforehand. Failure to protect the name or mark that represents your product can hinder the sales and marketing process.

This exposes you to brand theft and imitations that cause intentional confusion in the consumer public, causing you to almost totally lose your investment.

For this reason, it is highly recommended to register your trademarks and everything related to it (label, logo, packaging, slogan, sounds, hashtags, design, etc.), prior to any act of commerce.

Based on this, it is important to establish that the trademarks displayed are owned by the contracting company, by agreeing with the person or influencer who will carry out the advertising.

Copyright: who owns the advertised content?
If the content is created by the influencer, he or she will be considered the author of the work. Consequently, he or she owns the moral rights of the work done.

However, you must take into account article 14 of Law No. 65-00 on Copyright, which establishes that the ownership of economic rights shall be governed by the agreement between the parties.

Right of reproduction, distribution and use of content
When drafting the applicable clauses of the contract, it is important to include the rights of reproduction and distribution of the content. In this section, the participation and compliance of the influencer is essential, since he/she is in charge of the advertising work.

This section should include how, where and the time in which the influencer should carry out his advertising content.

Also, you should consider that Law No. 65-00 states that the work will only be used by the contracting parties, by the means of diffusion authorized in the contract.

Exclusivity with the influencer: protect yourself from the competition
The exclusivity clause establishes a period of time during which the influencer is limited or restricted from working with other companies that represent competition in the market of the current contracting company. This allows safeguarding the brand involved in advertising and, at the same time, protecting the image of the company.

The parties involved must know their rights and their limits
In summary, one of the most important aspects in influencer contracts is that of intellectual property, both for the contracting company and for the influencers.

It is necessary that the parties involved know what their rights are, but also the limits that they entail, mainly in the ownership of trademarks, the right of reproduction and distribution of content.

Once these aspects and their implications are understood, it will be much easier to define what to take into account before carrying out the negotiation and which clauses must strictly appear in the contract.