A possible qualification of the contractual relationship of a company with influencers is that of a service contract, since:
- influencers undertake to create and publish content (e.g., posts, videos, stories);
- remuneration may consist of a sum of money;
- work is on a self-employed basis;
- the influencer’s activity, consisting of the creation of original content (e.g., texts, images, videos) requires creative and personal input, and the aforementioned content created by the influencer is protected by copyright law; the contract should therefore regulate the ownership and exploitation rights of such content.
In addition to the above, it should be noted that the relationship with the influencer can be also qualified as a sponsorship contract; specifically, the company provides a consideration in money to the influencer, who undertakes to advertise the image, products or services of the company.
The Court of Rome on March 4, 2024 issued a decision in a case concerning the legal qualification of the relationship between a company and the influencers. The Court of Rome stated that the relationship with the influencers were to be qualified as agency contracts. The factual indices taken into account by the Court of Rome were the following:
- (i) the influencer undertakes to promote the company’s products on its web pages;
- (ii) for each directly procured and successful order, the influencer shall be entitled to receive a commission of 10% (commission account on monthly invoices, sales targets and rewards);
- (iii) the agreement is stipulated for an indefinite period, parties may terminate by giving 15 days’ notice;
- (iv) the absence of a territory cannot be considered as a fact for excluding the qualification as agency contract.
In conclusion, the contract between companies and influencers can have different qualifications, taking into account how the business relationship is construed.
Article by VENTURELLO E BOTTARINI, AVVOCATI (Italy)
