Influencers have become an indispensable part of the fashion world today. They give brands an authentic and human way to reach their target group. But influencer marketing also comes with a few legal challenges. Here are some key points to consider for fashion brands and influencers looking to collaborate – and some tips on how to avoid those pitfalls.
1. Transparency first
One of the biggest pitfalls in influencer marketing is transparency. Consumer protection is a hot topic, and legislation requires influencers to clearly indicate when a post is sponsored. An influencer is an extension of the brand, and consumers can sometimes think that an influencer’s opinion is completely objective. Therefore, it is crucial that influencers do not mislead consumers by mixing commercial posts with personal recommendations without transparency.
This means that it must be immediately visible to followers whether there is advertising or advertised content. Terms such as #advertising, #advertisement or #publicity must therefore necessarily be displayed in the post. Terms such as #collaboration or #partner are insufficient in many cases. Make sure that the commercial nature of the collaboration is immediately clear, so that both the brand and the influencer stay within the rules.
For more information, you can always read the Content Creator Protocol of the Flemish Media Regulator. If you want to advertise in the Netherlands, you can find more information at the Netherlands Authority for Consumers & Markets, but there is also the Influencer Legal Hub at European level that can be consulted.
2. Confidentiality
When fashion brands approach influencers to promote new collections, confidentiality plays a major role. Think of sneak peeks and exclusive images that you would rather keep secret until the official launch. It is important to make clear agreements about when and how the influencer can share certain content. In some cases, premature posting may even lead to loss of intellectual property protection. For example, Rihanna single-handedly caused the annulment of a European model registration from Puma by posting a photo too early on Instagram of her wearing these shoes.
So add a clear confidentiality clause to the contract and make clear agreements regarding timing, so that you are not faced with any surprises.
3. Authenticity
Nothing is more important than an influencer talking about a brand in a natural way. But even if you give creative freedom, a few guidelines (as a kind of “brand guidelines”) can help to position the brand correctly. In the contract you can include agreements about what should be in the captions, how often the posts appear, and which hashtags should be used. If, as a brand, you want to approve every post in advance, ensure a smooth and efficient process so that the authenticity and creativity of the content is not compromised.
4. Two-Way Intellectual Property Rights
The protection of intellectual property rights goes in two directions: on the one hand, the intellectual property rights on the brand’s product and on the other hand, the intellectual property rights on the images or videos of the influencers and content creators.
It often happens that fashion brands send products to influencers. Here it is important to clarify what the influencer is allowed to do with the products. Can he or she keep it, use it for future content, or even make adjustments to it? From when does a brand consider that its reputation is at risk? Add a clause that states that the influencer cannot modify the product without permission and describe what rights the brand retains to the content. This way you prevent unwanted use of brand images or even annoying lawsuits.
Conversely, it is also important that clear agreements are made about what the brand and the influencer can do with the images and content created. Can the brand continue to use these on its own website or in other campaigns? How may the influencer’s face or “portrait” appear in this? This can be a sensitive point for influencers, especially if they work for multiple brands. It is therefore crucial to record what rights the brand obtains over the content and in what context it may be used. A clear agreement avoids confusion and ensures that both parties can optimally benefit from the collaboration without losing sight of their rights.
5. Good agreements make good friends
It’s an absolute cliché, but even in an informal collaboration with an influencer, an agreement is essential. This does not have to be a complex legal text; it can even be in the form of an email in which agreements are clearly described. Make sure that there is always something in writing about who has what rights, how content is shared, and what happens if one of the parties does not adhere to the agreements. Better a short agreement than nothing at all!
Written by Judith Bussé, lawyer at PIVOT law. PIVOT is an office with a new and creative approach focused on transparency, authenticity and sustainability. In the fashion industry she assists both large and smaller designers and companies with advice on intellectual property, licensing, ESG and the general regulatory and commercial framework.
