The newly emerged industry of influencers (i.e. KOLs) grows rapidly. Influencers create contents on social media in order to earn remunerations from advertisers or individuals. In this connection, they usually engage an agent (a company or an individual) to increase their exposure and in such event an agreement would be essential to protect the parties’ interests.
An influencer agency agreement governs the relationship between an influencer and an agent. Usually, it grants the agent an exclusive right to represent the influencer in commercial contexts, for instance negotiating job opportunities and signing contracts. On the other hand, the agent has a duty to solicit business opportunities for the influencer.
Before entering into an agreement, there are numerous issues that the parties should pay attention to.
First, types of talent that the influencer will provide. This can be divided into few considerations: the influencer will engage in which platform (e.g. Youtube, Instagram, Tiktok, etc.); the influencer is creating what kind of contents (e.g. streaming, modelling, vlogging, etc.). The agreement should confine the scope of agency service accordingly.
Second, rights and responsibilities of the parties. Apart from standard agency agreement terms, the common intention of the parties should be reflected. For instance, in some occasions, the agent operates her own social media platform, say a Youtube channel. In the circumstances, the agent might recruit the influencer as a new actor for that channel, and the relevant rights and responsibilities shall be set out accordingly.
Third, distribution of profits. This is the easiest part to give rise disputes. The parties should establish an agreeable and clear mechanism, including what should be counted as distributable income and certain method(s) of distribution.
Fourth, non-competition. Because of keen competition in the industry, a non-competition clause which restricts the influencer joining the agent’s competitors after termination of the agreement can usually be seen. Meanwhile, influencers should be aware of such clause and consider if it is acceptable.
Fifth, termination. A proper and reasonable termination clause should be inserted so that either party can exit should the relationship becomes non-continuable.
Sixth, intellectual property right. As this is a creative industry, who will be the one ultimately owns the production outcomes, for example Youtube videos filmed by the agent featuring the influencer, should be explicitly defined.
Owing to length constraints, there are several other issues including duration of contract, confidentiality, etc. that we are not able to discuss here.
After all, in commercial world, certainty of contract can always secure fairness between the contractual parties.
Please feel free to contact us at enquiry@hksunlawyers.com for further enquiries.
