Brand ambassadors who go off-brand: Influencer agreements in the age of cancel culture

This article is the second in our Social Series, giving you up-to-date tips about the legal side of using social media. See our other blogs here.

Personalities who become brand ambassadors can be powerful marketing tools.

Unfortunately, the fairy-tale relationship doesn’t always end in happily ever after. Pete Evans’ rapid fall from grace over the past several days has served as a reminder of just how quickly public figures can go off-brand, with major names such as Woolworths, Coles, Big W, Channel 10, and Dymocks quickly ceasing their association with the former celebrity chef.

Social media influencers are increasingly the go-to for ambassador positions and brand conversations, having huge potential to make products relatable and accessible, increasing exposure and successfully driving sales.

In the online space, however, it seems as though another influencer is ‘cancelled’ every other day. Just last week, live-streaming platform Twitch removed the popular ‘Pogchamp’ emote from their site after the face of the emote, streamer Ryan “Gootecks” Gutierrez, tweeted encouragement of ‘further violence’ at the US Capitol. In previous years, Logan Paul and Felix Kjellberg (PewDiePie) were both dropped by Disney after posting inappropriate behaviour online. Youtuber Laura Lee was dropped or suspended from every partnership she was involved in, including with global brands Ulta and Morphe Brushes, after racist tweets written by her surfaced.

So, what can brands do to avoid testing the veracity of the old adage ‘all publicity is good publicity’?

Despite the risks, influencers can still be a lucrative investment for marketing campaigns. Before signing on the dotted line, it pays to check that your ambassador/influencer agreement is watertight and clearly and adequately addresses key issues to help manage brand risk, so that you can benefit from the professional relationship with as little worry as possible.

• Services: Brands should set out exactly what they want from the relationship and what the influencer needs to do to keep them happy. This can include complying with all reasonable directions, requests and instructions from the brand, attending punctually and in a fit state to perform the services and not doing anything illegal, contrary to law or that may bring the brand into disrepute.
• Restraints: It may border on controlling, but every relationship needs boundaries. Brands should consider incorporating appropriate restraints, such as preventing the influencer from publicly using competitive products, knowingly participating in any parody of the brand or making any public reference to a competitor or their products or services.
• Fees and expenses: Brands should consider splitting payment of the fees, say 50% upfront on signing the contract and 50% on completion of the services. There should also be some claw-back rights on fees if the influencer does not do the right thing. Brands should also set out exactly what expenses they’re willing to pay to the influencer (such as travel, accommodation, per diems etc.).
• Rights: While brands can own the intellectual property created in materials featuring the influencer, brands can only obtain a right to use the influencer’s name, likeness, image, voice, any other indicia of identity and their performances in the created materials. This right can vary across offline media, paid or owned online media, earned media and social media, and the variations and differences in these rights should be clearly stepped out in the contract. For instance, materials posted to social media usually remain after the agreement ends, and this needs to be carefully addressed in the agreement.
• Exclusivity: Influencers can’t generally be tamed, but three’s a crowd if it’s in the same market. Brands should ensure their ambassadors cannot promote or associate themselves with a competitor in the same territory for the duration of the contract and (if the brand can get away with it) for a period after the contract ends.
• Ending the relationship: It may be sunset-walks-along-the-beach-drawing-hearts-in-the-sand now, but it may not always be this way. In addition to any breach of contract, brands should have a right to terminate if the relationship turns sour. This might include if the influencer is accused, charged or convicted of a criminal offence, if they engage in conduct that violates accepted standards of behaviour, if they bring the reputation of the brand or the influencer into disrepute, or if they disparage the brand or its campaign, particularly on social media.

Entering into a commercial relationship with an influencer can be daunting, as this requires a significant financial and reputational investment by a brand. Influencers, like many personalities, can by their very nature be opinionated, entitled and prone to act unpredictably –  and have before bitten the hand that feeds them. Before brands appoint them as ambassadors, therefore, brands should consider the relationship, assess the risks and take steps to manage these risks by entering into a comprehensive agreement that addresses the relevant legal issues, including if applicable those identified above.

We are always here to help, so please contact us if you think you have found that perfect personality for your brand and want to make the most of it.

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