Influencer contracts contain clauses for TikTok bans, COVID-19

• 2020 changed the landscape of influencer marketing, and lawyers started adding clauses around the coronavirus.
• The force majeure clauses are also being expanded to include app closures, amid fears that TikTok will be banned.
• “The coronavirus has definitely added a level of control over what influencers can and can’t deliver,” said attorney Josh Jaskiewicz.
• Influencers review the wording of their contracts to see what they can and can’t do.
• You can find more stories on the Business Insider homepage.

Like everyone else, influencers are feeling the impact of the coronavirus on business.

Contractual agreements underpin the large number of influencer endorsements and branded deals that are brokered between companies and digital developers.

But the imposition of travel bans, the reduction of the brand budget, and the corresponding drop in advertising revenue have torn the old rules of influencer marketing apart.

“There is no doubt that the coronavirus outbreak has changed the brand-creator relationship in influencer marketing, especially in campaign contracts,” said Ben Jeffries, CEO and co-founder of Influencer, a London-based influencer marketing company.

“The coronavirus outbreak encouraged brands to be more flexible with creator’s content and to understand that creators should be given a degree of freedom in interpreting a pleading and creating content.”

The legal agreements behind this content have also changed.

“The coronavirus has definitely added a level of control over what influencers can and can’t deliver,” said Josh Jaskiewicz, partner at Sheridans, a law firm that works with brands and influencers. “Something [changes to agreements] are subtle and some are not so subtle. ”

No more marketing campaigns based on major events

One of the most important changes affected event-based campaigns: Creators are no longer flown out to major events and are expected to create content around that event.

“To do this, influencers have to go from point A to point B. These things completely disappeared overnight, ”said Jaskiewicz. “The brand’s liability to host such an event and risk an outbreak of [the coronavirus] As a result, it is simply inconsiderate for the brand to do so, not just for cost reasons, but also for reputational reasons. That’s completely gone – at least for now. ”

But that’s not to say that influencers saw work go away forever.

Instead, agreements are made whereby developers promote products from home or remotely.

“Influencers still got jobs, at least to my knowledge, and that’s because a lot of things can still be created in the comfort of home or in a socially remote setting,” said Jaskiewicz.

“With the coronavirus outbreak, many brands could no longer produce content the same way they did before and instead rely on developers with great success,” said Jeffries. “We have since seen a lot of brands continue to offer developers this creative take, which has led to some incredible campaigns.”

However, the risk of getting sick and imposing local bans that limit the ability to create content has taken into account some contracts signed by influencers and brands that Jaskiewicz works with. For this reason, clauses on force majeure are strengthened and triggered.

Force majeure refers to unforeseen major events that prevent someone from fulfilling the terms of the contract.

“Force majeure is only provided in exceptional cases,” said Jaskiewicz. “You could say [the coronavirus] is an exceptional circumstance but if you are negotiating to post something from your bedroom you cannot use force majeure to get out on that note.

“The way contracts are drafted is more specific. They are still so comprehensive, but now explicitly mention COVID-19. ”

Jaskiewicz tends to take clauses out of contracts that require influencers to produce good content if a deadline is missed due to events beyond their control.

Some companies are trying to force developers to create additional content for missed posts to compensate the brand at no additional cost.

“I’m trying to stay out of this conversation because it’s quite a question these days if you’ve asked someone to do extra things that they didn’t need to be through no fault of their own,” he said.

Contracts also affect apps like TikTok, which are blocked

With politicians in India, Pakistan and the US either banning or restricting apps like TikTok, there is also a risk that developers will produce content for apps that no longer exist.

“An act of government would generally act as a trigger for force majeure, but to say that this is the case in every contract is incorrect as it is subject to every single clause,” said Jaskiewicz.

But he sees far more influencers questioning their agreements.

“In one situation, a company wasn’t allowed to work in a certain state [coronavirus] or the government would have to consider the parties when drafting each and every contract whether the force majeure applies in that particular contract, “he said.” It is contract specific. ”

And contracts are also becoming more detailed to respond to the changing circumstances in which we live. “Force majeure is not a blanket exit card,” he said. “So when parties are designing it, they are designing it, to be more specific.