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    How to use vlogging or influencer marketing with minimum risk

    Vlogging (video weblogging) is a hot item in the online marketing world. Some vloggers have millions of followers on social media; PewDiePie is the absolute frontrunner with 54 million YouTube subscribers. No wonder they are called 'influencers': recommendation of a brand by a popular vlogger could result in a serious increase of profits, making them desirable business partners for advertisers and brand owners. Considering to contract influencers? We discuss 4 topics that should at least be considered to make sure that they add value to your brand.


    Brand owners can contract influencers directly, but usually intermediary marketing agencies are engaged. The brand owner will set out all the details of the advertising campaign and wishes in terms of marketing strategy, way of communication, use of social media channels, required number of vlogs created by the influencer, desired numbers of likes, etc. The intermediary will cover  all these details in their contract with the individual influencer. Besides gaining from their experience and specific knowledge, engaging an intermediary has the advantage of the brand owner not having to deal with the influencers themselves. Remember PewDiePie's vlog with anti-Semitic jokes? Yep, they can be  quite rebellious.

    Make sure you own the IP rights. It is essential to make clear arrangements about the intellectual property (IP) rights relating to the vlogs. In principle, IP rights belong to the person who creates the content: the vlogger and sometimes (also) the producer or other people who contributed to the vlog. Brand owners however will want to own the IP rights in the vlogs, to make sure they can freely use the material, now and in the future, and modify it at as they see fit. IP ownership therefore requires considerable attention in such contracts. If the brand owner's full ownership of the content cannot be agreed upon, an exclusive license which will allow (only) the brand owner to use the content may be the second best option.


    Besides an IP clause, it is common to include a confidentiality clause to ensure that the influencers respect the confidential nature of information provided to them - preferably with a penalty clause. We also recommend to include a guarantee that the vlogger does not infringe any (IP) rights of third parties, as well as an indemnification and liability clause - all to safeguard the brand owner from financial harm resulting from any infringing acts of the influencer. If you're planning on engaging vloggers regularly, you should best prepare a template contract with all such recurring elements which can be customized for each new vlogger and assignment.


    Current legislation lags behind and does not contain any specific regulations on online advertisements in social media, although the EU legislator is currently amending the Audiovisual Media Services Directive to cover online content creators. Dutch regulations contain several advertising codes for social media use (Reclamecodes) which have to be observed, but non-compliance is not sanctioned. The Dutch Media Authority (Commissariaat voor de Media) recently marked transparency of sponsored vlogs as one of the future goals for supervision. Until specific legislation and supervision for social media is in operation, brand owners and influencers will have to comply with the general advertising and media regulations, such as the prohibition to resort to unfair (misleading) commercial practices.