A brand partnership contract is an agreement that specifies the terms for collaboration between an influencer and a brand with respect to the promotion of products or services. Quite often, brand partnership contracts are presented as standard contracts drafted by the brand’s Advocates. The contracts often focus on protecting the brand’s interests thus leaving the influencers’ interests unaddressed.
As an influencer, you should therefore be keen to scrutinize the terms of the contract and point out aspects that open you to adverse risks. A legal expert’s skills are necessary during the contract negotiation stages in addressing your interests. This will help you to avoid unnecessary court cases over the fairness of the brand partnership contract. Ordinarily, courts will require you to present great evidence to invalidate the contract based on the unfairness of the terms. As a common practice, the courts do not rewrite the terms of a contract for the parties but enforce their intention.
The Terms to Pay keen Attention to while Negotiating Brand Partnership Contract
As a creator, you ought to ensure that the brand partnership contract clearly defines the following issues:
1.The scope of the work to be undertaken
The contract should clearly stipulate the duties of both parties and the timelines for performance. Vague terms on obligations could leave a room for the brand entity to introduce new obligations that had not been factored captured during the negotiation. Also, clear cut obligations enable you to negotiate for fair returns on your efforts since you’ll have clearly understood the level of commitment that the deal calls for.
As a creator, you need to ensure that the contract sets clear terms on any of the following issues:
- the length of the video or audio clips to be recorded;
- the visuals required to create the video or audio clip and the party responsible for sourcing such visuals;
- the scope of editing and limits on the number of times a creative work ought to be returned to you for editing. The contract should specify the charges applicable for any editing that falls outside the required scope.
Most often, new creators tend to be overwhelmed by the joy of getting their first gig and rush into commitment. There have been allegations of young Kenyan influencers working for influencer agencies and some companies without being fairly renumerated for their skills and time. To avoid pitfalls related to hustling for no returns, it is crucial that you properly scrutinize the agreement and frameworks that govern the deal.
2. The ownership of the work you produce under the contract
The contract should clearly state whether the resultant creative work will be owned by the brand or by the creator. In case of joint ownership, the contract should clearly express the scope of rights to be enjoyed by the parties and set rules or limits on how either of the parties may utilize the work. This helps to avoid instances of conflicts between the brand and the creator as to the scope of each party’s rights.
The contract should also specify whether the brand has the rights to transfer or resell the content to another brand and what you’ll get in return. It is essential to specify the limits associated to transfer since such action poses a risk to your personal brand.
In case the work is to be owned by the brand, there should be a clause attributing the creation to the creator and entitling the creator to some rights associated to the work. Attribution falls under moral rights under section 32 of the Copyright Act. The moral rights subsist even after the work is transferred to a third party. Having an Advocate with expertise in negotiation and intellectual property practice is necessary in addressing such concerns.
3. The payment terms for the obligations under the contract
Converting creative ideas into a material form demands for a lot of input. Therefore, you ought to ensure that you receive a fair remuneration for the output, time and skills you put into coming up with the final product. Apart from setting the amount to be received in return, the contract should also specify the timelines for payment, payment method, the interest applicable in the event of late payment, and refund policies.
In most cases you’d require the assistance of an objective third party possessed with great negotiation skills and who understands the issues around intellectual property rights. You should therefore consider onboarding a legal expert to the negotiation table to ensure that the brand fairly remunerates you for the work to be done.
4. Exclusivity clauses, if any
An exclusivity clause forbids an influencer from engaging with other competitive brands. Some brands have a policy of contracting their influencers on an exclusivity basis hence affecting potential income sources. It is therefore vital to check out for an exclusivity clause before signing a brand partnership contract. The presence of such clauses should be a ground for considering whether you should negotiate for higher returns or drop the deal altogether.
Sometimes, exclusivity clauses often specify the duration within which you may not be allowed to engage with a brand’s competitor upon concluding the deal. Thus, it is vital to seek legal advice on the implications of the exclusivity clause on your earning capacity and personal brand before proceeding to sign the contract.
5. Confidentiality clauses, if any
Most brands utilize strategies to ensure that information about their products is concealed from their competitors. Thus, the brand partnership contracts often stipulate strict terms on confidentiality with dire repercussions in the event of non-compliance.
It is therefore important that you understand the terms of the confidentiality clause to clearly define what you may or may not discuss with third parties. This will also help you avoid the risks associated to the consequences of violating the terms of the confidentiality clause.
6. The legal risks that the agreement exposes both your brand and yourself to
Standard brand partnership contracts often have hidden clauses or incorporate separate contracts that tend to affect your personal brand or expose you to certain legal risks. For instance, in developing a creative idea you may be required to utilize an already existing idea or build up on previous designs. Such activities may open you up to serious claims for copyright infringement.
It is therefore necessary to seek clarity on whether the brand has obtained licenses for any creative work to be utilized in the process. Having a legal expert raise such concerns on your behalf saves you from pre-eminent legal risks and safeguards your own brand.
7. The grounds for termination of the partnership
It is important for you to understand the grounds for terminating the partnership contract and what happens upon termination. Having a clear understanding of the grounds and consequences of the two will help you understand what to do in case the brand fails to honour their part of the deal or what risks you’ll put yourself into in case you intend to quit on the partnership before the lapse of the specified duration.
The termination clause often specifies the parties’ obligation to issue a termination notice, the period and form of such notice. You should also discuss the terms of the termination clause with a legal expert before signing the contract.
Conclusion
Seeking a legal expert’s advice in the process of negotiating a brand partnership deal and before signing the contract plays a great role in protecting your interests. You should therefore embrace seeking legal support in the process rather than only deeming legal services to be relevant after a dispute has arose based on the terms of the contract.