Social Media Marketing: Brand Indemnification of Celebrities and Influencers

We represent entertainers, celebrities, and influencers looking to monetize their name, likeness, and voice, endorsing third-party brands. “Influencer Marketing” and “Social Media Brand Endorsement” have become big business. Our law firm represents some of the business’s largest social media marketing agencies and influencers. Here are some things every company, celebrity, and social media influencer should know before entering into a brand endorsement influencer agreement.

Why Brands Love Social Media Influencer Marketing

There are many reasons why brands prefer social media marketing to traditional marketing. One reason is that many influencer marketing campaigns allow the brand to measure the return on investment. The return on investment Because of social media personalities’ tremendous reach and influence with their audience, the chance that an endorsement will result in a sale is incredibly high.

How to Negotiate an Influencer or Social Media Endorsement Contract

Any influencer agreement or endorsement contract with a brand must have basic protections for the celebrity or influencer. Some of these protections get overlooked by celebrities and influencers focusing on the ‘payment per post’ rather than the more substantive contract terms. We sometimes have challenges protecting our clients because so many celebrities and influencers sign the brand or agency contract that is put in front of them without obtaining the legal advice they need.

Publicity Rights and Copyright Licensing

At the heart of every brand endorsement deal in the online space is the license to the publicity rights belonging to the celebrity or influencer. Essentially, the celebrity or influencer is licensing to the brand the right to use their name, voice, and likeness for commercial purposes. Of course, the entertainer and social media influencer often take the photograph, meaning they also own the copyright to the photographs they publish to their social media accounts. This means they also own and need to license the copyright to the brand.

But what happens if the celebrity or influencer gets sued for doing the social media marketing campaign? This happens all the time. We saw it in the crypto space, and we see it with brands big and small. Here’s how this usually plays out. The brand wants the influencer to endorse their product or service as part of the published post to the influencer’s social media account. They include a picture of the product or a logo for the service and text that includes the brand’s trademarks. A third party says they own trademark rights in the brand name or a mark similar to the brand name. Alternatively, they believe that the product or packaging looks too similar to their product or packaging. Instead of just using the brand, they use the brand, and all influencers under the law are equally liable for trademark or copyright infringement. Again, the celebrity and influencer are liable under the law if they should promote a brand that infringes on a third party’s priority intellectual property rights.

The Importance of Indemnity Clauses in Social Media Brand Endorsement Contracts

Typically, the parties will indemnify each other for their responsibilities. For example, if a celebrity or influencer gets sued for trademark infringement because a third party sues the brand, the brand must step in for the celebrity or influencer and handle that litigation. Trade dress claims are more common about products. In a necklace or cosmetics with a particular design for the label, a third party might allege that the brand is infringing the third party’s trademarks or potentially even their copyright. The celebrity or influencer has nothing to do with the product’s design, the label, or the brand name. Accordingly, the brand must indemnify and hold harmless the influencer if they should get sued for the endorsement.

What Does A Brand Indemnity Clause Look Like?

Are you wondering what an indemnity and hold harmless clause looks like? We have you covered. In every influencer contract, the influencer must ensure the endorsement agreement includes language similar to what we have provided below.

[Brand] agrees to indemnify, defend and hold Lender, Influencer, and each of their respective representatives, predecessors, successors, assigns, and agents (“Influencer Indemnitees”), harmless of and from any and all losses arising out of claims, suits, or actions brought by a third party which arise out of defects in any [Brand] products and/or any violation, or alleged violation, by [Brand] of the intellectual property rights of any third party. [Brand] agrees to promptly reimburse Influencer Indemnitees for any payments made by or on behalf of the Influencer Indemnitees (including outside legal fees and disbursements) at any time with respect to any liability or claim to which the foregoing indemnity applies. This indemnity shall survive the expiration or termination of this Agreement.

What To Do If You Get Sued For Trademark or Copyright Infringement From A Brand Endoresment

Let’s hope it never happens, but if you are an influencer, entertainer, or celebrity who gets sued by a third party due to doing a brand endorsement, you are now 100% liable for all of the damages the brand might be liable for. This can be hundreds of thousands of dollars or more. Intellectual property infringement claims are extremely serious. If you do get sued as a result of doing a brand endorsement, and the issue has to do with the brand, you should immediately contact your agent, your lawyer, or the marketing agency and provide notice of the threat to sue or a lawsuit filed against you. It would be best to demand that they indemnify and hold you harmless for any infringement claims. This means that you will request that they provide you with an attorney or reimburse you in real-time for all your legal costs.

Hire Lawyers Who Are Experts in Social Media Marketing

Every social media marketing agency, influencer, and celebrity must be aware of other legal issues when doing brand deals. These endorsement and influencer agreements should be negotiated by attorneys who know what they’re doing. We can help.