Navigating the Legal Landscape of Influencer Marketing in Australia (2024)‍

Navigating the Legal Landscape of Influencer Marketing in Australia (2024)‍

January 14, 2024
Providing legal insights into influencer marketing in Australia, by Neuralle

Setting up your first influencer marketing campaign is not as simple as just building a list of who you like, reaching out to them, and booking them. We consistently see poorly structured agreements and contracts by marketing teams, business owners, and brands that fundamentally do not understand the legalities of influencer marketing.

Brands get pumped about their first influencer campaign, but they don't realize there's more to it than just picking who you like, sliding into the DMs, and locking them down. You must set up the legal stuff properly, or that "dream collab" can quickly become a nightmare.

You need a structurally sound legal approach, ensuring clarity on IP ownership in influencer marketing and compliance with influencer marketing laws, so you don’t encounter a bait-and-switch situation. If you’re thinking of taking the route of influencers, the last thing you want to do is get bogged down in legal wrangling and headaches.   

So what do you need to focus on? Who owns the content license, what are you paying the influencer, what are the terms of the agreement, and what are you getting in return? If you want to learn more about the legal elements of influencer marketing, I’ll explain the principles for a hassle-free deal that will save you a bucketload of time.

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Understanding the influencer and brand legal relationship

When it comes to these contracts between brands and influencers, it helps to understand where both sides are coming from. At its core, influencer marketing is an attention-based thing - like a TV or radio ad. But instead of just slapping your logo on something, you're bringing in an actual human being with their own personal brand.

Influencers and influencer marketing is an attention-based marketing activity - very similar to what you would do with a TV Commercial, Billboard or Radio campaign. You are introducing a person of influence into the creative, whose name and likeness define their business. 

You pay a creative or ad agency a lot of money to make something (an ad) that you own outright and hold the final IP. In influencer marketing campaigns, you pay an individual to create an original IP inside their “world” of influence. Therefore in almost all cases, you are paying that individual to license their IP (the concept, name, and likeness). 

The benefit is that it’s far more achievable from a price point than a TV commercial. After all, their personal brand is everything to them!

Brands and influencers must respect each other's position. Negotiate something fair that works for both sides. Does this help explain things in a more down-to-earth way?

Influencer Contracts, Scope & Duration of Agreements

Influencer agreements are very straightforward and often have two core elements: the schedule (the table that defines the terms of the agreements) and the legal T&Cs themselves. Definitions, of course, will be in any agreement so it’s clear as to what “Scope,” “Deliverables,” “Fee” and any other terms relate to.

A formal schedule should clearly outline:

  • Scope of Deliverables- An Instagram Reel or TikTok Post?
  • Publish Date - Can't be vague here. Should lay out the exact date the content will go live.
  • Usage Terms - What rights does the brand have to reuse, modify, or amplify the content later for ads or other purposes?
  • Brand Safety Requirements - Clarity on what is/isn’t okay should be referenced in an agreement, even if it points to a brief for the campaign. This ensures you can terminate if the talent does anything untoward during the campaign.
  • Exclusivity - How exclusive does this deal need to be regarding competitors? More exclusivity means higher influencer fees.
  • Fee - Excluding GST
  • Brand - who you are
  • Payment terms - I.e. 14, 30, or 60 days (30 is most common)

The Terms & Conditions or Clauses of the agreement should get into the nitty gritty of legalities. To us at Neuralle five core clauses need to be defined to protect everyone:

  • Payment Terms - I.e. 14, 30 or 60 days (30 is most common)
  • IP Ownership - Whether the the talent is licensing their concept to you (typical with influencers) or you are buying the creative outright (typical with User Generated Content)
  • IP Sharing - The usual disclosures when engaging a creative, detailing that you are providing a royalty-free right to use your name and branding
  • Cancellation or Termination - Who has the right to terminate, if termination of the agreement is made what payments or cancellation fees are required?
  • Exclusivity- It should be noted and defined in the T&Cs of the agreement.

Ensuring all of these elements are kosher and correct is extremely important, it will save you pain before, during, and after the campaign. 

If you are not engaging an agency (which should have an influencer agreement template like this already, that they own), then we strongly recommend you engage a lawyer. One of the leaders in the industry is AiMCO Chair Teegan Boorman’s Social Law Co, which we highly recommend as they are specialized in this media sub-industry.

Navigating Influencer Marketing Payments and Compensation Options

Influencer marketing payments in Australia are very straightforward and span most of these options:

  • Fixed Fee - as defined, for example, $1,000 ex GST for 1 post
  • Commission or Performance - 10% of all sales, or $8 per 1000 views
  • Hybrid - Combining Fixed Fee and Commission
  • Gifting/”Contra” - Providing a post for a gift (product) or experience

When it comes to influencer deals here in Australia, it's different than the massive American market. About 95% of the time, brands pay Aussie creators fixed upfront fees rather than complicated commission or performance structures. We just don't have the scale for those models to work well.

Instead, we often see brands signing local influencers to long-term "ambassador" roles, locking them down for 6 to 12 months of consistent pay and content. It gives the Aussie talent income stability rather than chasing viral fame for backend payment.

Most influencers here expect fixed compensation upfront. The local creators won't risk uncertain performance-based deals like some giant American YouTubers or TikTokers with built-in millions of followers, and it makes the creators feel valued.

Remember that relationship-based market dynamics dictate fixed influencer fees, usually on longer-term contracts. It makes financial sense for the brands and helps the Aussie creators feel valued for their work rather than chasing views or vanity metrics.

Gifting or Contra (whereby the brand provides a product) is expected, but a recent ATO ruling that would make product addressable income has squeezed what little of gifting existed. Most “gifting” nowadays is entertaining talent at events.

If you can only complete Options 2-4 regarding budget, your business may not yet be ready for influencer marketing. High tickets (cars) and high-value items (luxury goods) are excluded from this advice because there is still demand for this form of gift from talent.

Whatever decision you make, just ensure you optimize your spending to achieve value in whom you engage talent-wise. We unpack how to do this inside this article on How to maximise your influencer marketing budget

Influencer Usage Rights, Exclusivity & Perpetuity

Probably one of the most critical areas to understand is the domain of what I would call “the trimmings” or “extras.”

A lot of brands assume they need the lot in a campaign when it comes to:

  • Usage Rights or Influencer Whitelisting - Getting broad rights to repurpose content for ads or amplification can backfire. It is better to have the option to license the top 10% performing posts later once you see results.
  • Exclusivity - Brands will pay 30%+ % more to block influencers from working with competitors for months. But social content is ephemeral - most viewers won't remember who talent has worked with.
  • Perpetuity - Lawyers love slipping this one in - but do you need influencer posts to stay up forever? 12 months is fair. Talent and interests shift over time. Long-tail views 6+ months out will be tiny anyway (we don’t see the harm in it)

These items were covered in the webinar I hosted for AiMCO’s Talent Manager group “A Brief on Briefing”. 

Regarding Usage, I see buyers always making this mistake - they pay upfront to use content in ads before even seeing if the creative performs well. We've found a good workaround is to have an "Option" in the contract that gives the brand the right to license the content down the line. That way, they can pick the top 10% of talent or creatives that drive results after running the campaign.

With Exclusivity, brands throw money at talent to stop them from working with competitors. I've seen them block talent for crazy timeframes like 2 whole months! This happens most in the alcohol space. As a manager, I usually build in 2 weeks of exclusivity (1 before and after the post) which makes the most sense. Social content just doesn't stick around that long in people's minds. 

And let's be honest - only 5-10% of shoppers are hardcore loyalists to one brand. Most viewers won't remember who a talent collaborated with last month. Yet brands will pay 30% more to block a small competitor risk, even if it tanks their campaign ROI. Funnily enough, just by working with Brand A, the talent may turn down Brand B anyway if there's too much overlap.

Then we've got Perpetuity. Lawyers stick this word into contracts whenever possible, trying to let brands use content forever and force talent to keep posts live indefinitely. I think it's fair for brands to reuse content long-term on their channels. But for talent, keeping something up for more than 12 months often doesn't align with their personal brand anymore. 

Views trickle off over time, too. It's not worth sweating those long-tail scraps 6+ months out. As soon as managers see Perpetuity, we just cross it right out. It's rarely worth losing a deal over something with not much real-world impact.

You must understand all of these terms when it comes to both negotiating and contracting an influencer campaign. This is one of the core reasons people pay an agency like Neuralle good money.

Avoiding Legal Pitfalls and Ensuring Compliance

The common pitfalls that brands fall into come down to three main areas:

  • Regulation
  • Social platform's creative policies

The dominion of media in Australia is regulated by ACMA (the industry and each sub-industry are managed by ACMA’s surrogate associations or agencies (i.e. influencer marketing or TV Commercials). The size and relevance of that association are dependent on the market size. 

In recent years an association that passes guidelines to the sub-industry of influencer marketing has been created - it’s called AiMCO. AiMCO (of which Neuralle is a member) now has a Best Practice Guide with requirements like ad disclosures (I.e. that talent put #ad or use the paid partnership tag on the social platform). It also deploys certain Ad Standards like ABAC for sub-industries.

The social platforms are on board with this change and willing to take down posts not tagged appropriately.

Regulation of certain industry sub-segments is well documented for gambling and alcohol. The ABAC code is one example of this, but there are others for food or TGA-approved products.

It is extremely important you or your agency understand the relevant code of conduct and ensure it’s included both in the brief and the contract for the talent. Failure to comply will result in severe fines.

Platform content policies are also where we see campaigns tripping up legally. Ensure you understand a platform's policies. For example, TikTok has:

If the content or campaign doesn’t abide by this and the campaign is picked up by their algorithm or gets reported, you’ll have wasted your money running the campaign with the talent - in which case it is your fault.

You must ensure that your campaign follows these rules to prevent this.

We’ve touched on some complexities of running an influencer marketing campaign, emphasizing the importance of understanding influencer marketing laws and the legal intricacies involved. If you’re still unsure how to approach a campaign safely, we suggest you engage a team like us at Neuralle. This approach will help ensure your campaign is effective and compliant with influencer marketing legal standards. 

The bottom line is that taking shortcuts with your influencer program can tank your campaign and turn you off from influencer marketing altogether. And wouldn't that be a waste?

Is there something you’d like to see or think is missing in this article? Hit us directly at talent@neuralle.com and give us your thoughts.