Influencer Agreement Lawyers Adelaide: Social Media Endorsements, Disclosure, Talent Releases and Content Rights

Influencer, talent and endorsement agreements in South Australia

Most influencer disputes come down to two questions: was the paid relationship disclosed properly, and who may keep using the content once the campaign ends. Talon Legal drafts and reviews influencer, talent and brand ambassador agreements for Adelaide brands and agencies, and for the creators and talent who sign them. Book a same-day free 30-minute consultation or call (08) 7094 2021.


Influencer agreement key facts

IssuePosition in South Australia
Undisclosed paid postsPresenting a paid endorsement as independent opinion risks contravening ACL section 18 and section 29(1)(e) and (f) (false or misleading testimonials).
Testimonials in courtTaken to be misleading unless evidence is adduced to the contrary (section 29(2)).
Maximum penalty, section 29Body corporate: the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. Anyone else: $2,500,000 (section 224(3) and (3A)).
False endorsementAdvertising that conveys a false message of endorsement by a celebrity can mislead (Pacific Dunlop v Hogan, Beaumont J at [31], Burchett J at [2]).
Photos and copyOwned by the author unless assigned in writing, signed by or on behalf of the author (Copyright Act sections 35(2) and 196(3)).
Commissioned videoOwned by the person who agreed, for valuable consideration, to have it made, absent an agreement to the contrary (section 98(3)).
Moral rightsNot transmissible by assignment (section 195AN(3)). For works not in films, a written consent covering specified acts and works allows editing (section 195AWA).
ExclusivityWhether a clause is a restraint depends on its practical working, and most restraint of trade cases turn on reasonableness (Peters (WA) v Petersville at [14]).
Health servicesAdvertising a regulated health service must not use testimonials. Maximum $60,000 for an individual and $120,000 for a body corporate (Health Practitioner Regulation National Law (South Australia) section 133).
First stepSame-day free 30-minute consultation. Call (08) 7094 2021.

Need an influencer agreement lawyer in Adelaide?

Our influencer agreement lawyers in Adelaide act for brands and agencies that engage influencers, content creators, talent and brand ambassadors, and for creators and talent reviewing a brand’s terms. The Australian Consumer Law (ACL), in Schedule 2 of the Competition and Consumer Act 2010 (Cth), governs what a sponsored post can claim and the impression it leaves, and the Copyright Act 1968 (Cth) decides who owns the content. This page states the law current to 6 November 2026.

This guide is part of our marketing and advertising practice. Related guides cover sponsorship agreements, testimonial and image consents, trade promotions and competitions and marketing agency agreements.

Free Consultation. Send us the brand deal or creator brief before anything is posted. Book a same-day free 30-minute consultation or call (08) 7094 2021.

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Muhammad Zubair
29 October 2026
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Talon Legal is the best law firm in the Adelaide. Dan was able to resolve my case before time, achieving a favourable outcome. I would highly recommend Talon Legal to anyone seeking professional legal assistance. Talon Legal develops effective legal strategies to achieve the best possible outcomes.
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Jessie W
26 October 2026
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I had a great experience dealing with Danial at Talon Legal. From our initial conversation, he was professional, approachable and genuinely interested in understanding our business and its needs. He took the time to listen, explain things clearly and offer thoughtful, practical advice. I particularly appreciated his patience, honesty and the time he dedicated to our discussions. Although we haven’t engaged the firm for further work at this stage, the experience has left a very positive impression. I would certainly feel confident reaching out to Danial again for any future legal matters. Thank you, Danial, for your time and professionalism. It’s been a pleasure dealing with you!
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Angela Carter
12 October 2026
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Was a scary experience, uut thenks to your expertise, i got the best possible outcome.
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24 September 2026
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Exceeds expectations Dan went above and beyond our expectations to deliver professional, highly detailed and very well thought out information. He included extra documents just to help us out and this was much appreciated.
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24 September 2026
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Dan went above and beyond our expectations to deliver professional, highly detailed and very well thought out information. He included extra documents just to help us out and this was much appreciated.
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Samin Adit
1 September 2026
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Dan was extremely helpful and he was very patient and through and took time explaining me all the process and next step. And he carried a great sense of humor while he spoke and honestly that made it so easy to understand when I was already stressed out.
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Calvin Munatswa
24 August 2026
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I’m extremely happy with the service I received from Dan. He was professional, responsive, knowledgeable and genuinely committed to achieving the best possible outcome. I really appreciate the hard work, guidance and support throughout the process. Thank you for doing such a great job. I would highly recommend your services to anyone looking for a reliable and dedicated lawyer.
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Marcelle Ayoubi
4 August 2026
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Highly recommend Dan! He was prompt, reliable and efficient, with excellent communication throughout the entire process. His knowledge and professionalism gave me confidence, and he achieved a good outcome. Dan took a lot of the stress out of what could have been an overwhelming experience. Thank you, Dan, for all your support and assistance!
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Neb Trivic
24 July 2026
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Very knowledgable, helpfull and got the best outcome hoped for.
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Anton Simdyankin
21 July 2026
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Timely quote, responses and overall great experience. 100% Recommend
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Tania Stubberfield
16 July 2026
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I highly recommend Talon Legal and especially Daniel Esmaili. During our initial conversation for a driving offence, Dan was incredibly honest and told me that I didn't really need legal representation. He was completely down-to-earth and non-judgmental, reassuring me that people make poor choices sometimes. I felt more at ease and I chose to hire him anyway to avoid the anxiety of a court appearance, and it was the best decision I could have made. He took care of everything from start to finish, appearing in court on my behalf so I didn't have to attend at all. He explained everything clearly without using confusing legal jargon. He was also incredibly thoughtful and personal, asking how my birthday trip away went with family. Thanks to Dan, we got a fantastic outcome with a significantly reduced suspension time and a minimal fine. Dan even went above and beyond by telling me to contact him before I start driving again to double-check that my suspension is fully completed and my licence paperwork is processed correctly. On top of the amazing result, the fees were surprisingly affordable without compromising on performance and integrity. If you want an empathetic, honest, affordable and highly capable lawyer, then Dan's your man. Thankyou again Daniel Esmaili at Talon Legal.
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Bill P
30 June 2026
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We recently engaged Dan Esmaili from Talon Legal to assist our family with a motor vehicle road rule expiation and related court matter. From the very beginning, Dan was professional, clear, and extremely supportive. He took the time to explain the process in a way we could understand, kept us informed throughout, and handled the matter with care and confidence. Most importantly, Dan achieved a successful outcome for our family, which we are very grateful for. We sincerely appreciate his guidance, responsiveness, and dedication. We would highly recommend Dan Esmaili and Talon Legal to anyone needing strong legal support and professional representation.
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Sara Gleeson
16 June 2026
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I cannot recommend Dan Esmaili (Talon Legal) highly enough. I was extremely worried about the impact a legal problem could have on my future. From the beginning, he was professional, knowledgeable, and supportive. He took the time to explain the legal process, answered all of my questions, and worked tirelessly on my case. Thanks to his expertise and advocacy, I received a result without a conviction being recorded. This outcome has made an enormous difference to my life, and I am incredibly grateful for his dedication and hard work. If you need a lawyer who genuinely cares about their clients and achieves outstanding results, I would not hesitate to recommend Dan.
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Matthew Greenwood
16 June 2026
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Thanks Dan for your legal help . You got the best possible outcome , thanks again . Matt
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Caleb Sweeting
15 June 2026
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Danial Esmaili is an excellent lawyer whose clear communication style makes navigating legal matters much easier. Professional, approachable and knowledgeable, he takes the time to explain things clearly and provides confidence throughout the process.
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Yousef Al-Yasiri
11 June 2026
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Daniel and the team at Talon Legal were truthful, helpful, and left me feeling confident and how they handled my matter. Daniel understood my situation, left me assured, was realistic with me, provided me with the advice or course of action that best suits my sitiation. If I could choose again, I would choose Daniel and the team at Talon Legal with my eyes closed.
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Matthew Morgan
11 June 2026
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You’d be hard pressed to find someone more knowledgeable than Dan, a lovely guy too.
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Jacob Marcer
10 June 2026
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Daniel at talon legal was by far the best lawyer I’ve had to deal with he was extremely helpful with explaining his processes and making me feel very comfortable Also achieving a great result on my case Couldn’t recommend Daniel more if I could give more stars I would Thanks again daniel
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Faros Omidvour
10 June 2026
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Talon Legal is an excellent law firm that I recpmmend without hesitation to anyone who needs responsive and considerate advice and representation.
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Egor Eremeev
8 June 2026
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I cannot recommend Talon Legal highly enough. From the very beginning, Daniel demonstrated exceptional professionalism, legal expertise, and genuine care for my situation. Daniel took the time to understand my circumstances, explained every step of the process in clear and practical terms, and was always available to answer questions. His attention to detail, strategic thinking, and calm approach gave me confidence throughout the entire matter. What stood out most was Daniel’s commitment to achieving the best outcome while making the process as smooth and stress-free as possible. It is rare to find a lawyer who combines technical expertise with such excellent client service. Thank you, Daniel, and the Talon Legal team for your outstanding support. I would highly recommend Talon Legal to anyone seeking professional, reliable, and results-driven legal representation.
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Kaedehara Kazuha
4 June 2026
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We recently engaged Talon Legal to assist with drafting reseller agreements for our business, and the experience exceeded expectations. Dan took the time to understand our requirements, commercial objectives, and the practical realities of our industry before providing clear, strategic advice and a tailored solution. His attention to detail, commercial awareness, and ability to identify potential risks resulted in a comprehensive agreement that gave us confidence moving forward. What stood out most was the firm's proactive and innovative approach. Rather than relying on a standard template, Dan offered practical suggestions and considered scenarios we hadn't even thought of, helping create a robust and well-structured agreement. Talon Legal is a progressive firm with a fresh perspective and a strong understanding of commercial law. Professional, responsive, and easy to work with throughout the process. Highly recommended.
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Bec Chapman
22 May 2026
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Talon Legal were exemplary in their service. Dan was concise, thorough and true to the plan. For a small NGO seeking legal advice I can highly recommend :)
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Hussar1522
29 October 2025
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One of the best lawyers in Adelaide My life was being ruined because of a court case that was not true, then it became worse when I have driving charge for driving disqualification and careless driving with an accident that I did not cause. This affect my business and the lawyers protected my business and my life and reputation. They make the charges go away and I get no conviction or criminal record, and do my business contracts terms and conditions perfectly. If you want lawyers that can help you many ways I suggest you go to Talon Legal. I think one of the best law firms in Adelaide for business and criminal and traffic.
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Oldpicker64
17 August 2025
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Saved me from jail for disqualified driving I can’t thank talon legal enough for what they did to help when I had magistrates court in port adelaide and Elizabeth, lost my licence because I was sick before and had to drive in emergency to help family but police didn’t care. Talon legal helped me with disqualified driving charges in court and saved me from going back to jail this was the one time I liked working with a lawyer. Recommend talon legal for any legal problem.
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J420
2 August 2025
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Best criminal lawyers! I hired talon legal to fight a criminal case for me and they got the charge dropped. Daniel was amazing in handling my case. He actually cared about my case and me as a person. I felt really supported and I am glad I got talon legal for my court case. Best criminal lawyers in Adelaide that I spoke to.
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James Aveno
2 August 2025
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Excellent business and startup lawyers Talon Legal was incredible to work with and delivered outstanding value for money and expertise. I went into my initial meeting expecting to receive some basic information instead I was blown away by their depth of knowledge across multiple domains. I was in the process of founding a startup business in Adelaide, and explained my goal of expanding interstate and eventually internationally. The lawyer I spoke to was across contracts, terms and conditions, intellectual property protection and licensing, brand consolidation, risk minimisation and business structures and compliant advertising. I was really impressed however by their use of ingenious tools that aren’t really the domain of lawyers at least from what I’ve seen before. Daniel in particular was a bit of wizard. He walked me through how something called OSINT could be used for brand consolidation and was very transparent about the use of some of their document automation tools, and this reflected in the speed and value they provided. I really felt like I finally am able to work with a law firm that can help me with every stage of my business and was genuinely curious about what what I wanted to achieve. Even after the services were provided, Talon Legal was proactive in checking in with me to ensure my business was prospering. I have sent my friends and other entrepreneurs to them and every single one was very happy.
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James A
2 August 2025
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Excellent commercial and business lawyers! Talon Legal was incredible to work with and delivered outstanding value for money and expertise. I went into my initial meeting expecting to receive some basic information instead I was blown away by their depth of knowledge across multiple domains. I was in the process of founding a startup business in Adelaide, and explained my goal of expanding interstate and eventually internationally. The lawyer I spoke to was across contracts, terms and conditions, intellectual property protection and licensing, brand consolidation, risk minimisation and business structures and compliant advertising. I was really impressed however by their use of ingenious tools that aren’t really the domain of lawyers at least from what I’ve seen before. Daniel in particular was a bit of wizard. He walked me through how something called OSINT could be used for brand consolidation and was very transparent about the use of some of their document automation tools, and this reflected in the speed and value they provided. I really felt like I finally am able to work with a law firm that can help me with every stage of my business and was genuinely curious about what what I wanted to achieve. Even after the services were provided, Talon Legal was proactive in checking in with me to ensure my business was prospering. I have sent my friends and other entrepreneurs to them and every single one was very happy. Approximate cost: $4500
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DP123
12 July 2025
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Clear advice in a very stressful time I was in a very stressful situation and Talon Legal fixed my problem - now my stress is gone! Very professional, excellent communication, accessible and fast. Thank you for everything.
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Slavi77
12 July 2025
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They won my hardship appeal Was about to lose my licence and Talon Legal got it back. Made a promise and kept it. This is what a lawyer should be like. Helped me with my driving disqualification and other driving offences. Very prepared and explaining things very good so I could understand them easily.
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Emir
2 July 2025
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Very good criminal lawyer They were honest and did what they said they would do and told me what to expect it was like following a map and I felt safe because I know what to expect very happy with the experience Talon. If I need lawyer again I will come back.
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Samsun
28 June 2025
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Got the best result for me Easy to deal with and spoke to me in normal English, explained everything really good to me, didn’t go over agreed budget to help with my case and communicated all the time with me, never kept me waiting and very responsive to my questions, had direct access to my lawyer anytime I needed. Got very good result for my case for drinking and driving, disqualified driving, demerit points and provisional driver licence condition
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Rogue33
26 June 2025
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Very good experience best money ever spent on a lawyer Professional, friendly and fixed fee service. I had some charges in court in Adelaide and Talon Legal completely picked apart the case against me. Charges were removed and I got my licence back too. Cant recommend them strongly enough. Really easy to work with and friendly. Thanks for wining my licence appeal and getting the drink driving charges removed.
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Riggo7
24 June 2025
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Saved my drivers license Can’t thank the team enough at Talon Legal for helping me keep my drivers license. They were very knowledgeable and took the time to explain everything to me every step of the way. If it wasn’t for their excellent representation in court I would have lost my license. They left no stone unturned. Highly recommend.
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Karen R.
24 June 2025
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Best lawyers for traffic offences in adelaide Really appreciate Talon Legal’s help to keep my license, thank you so much to the team. Professional, responsive and compassionate service from everyone at the office and excellent outcome. Would definitely recommend. Approximate cost: $2800
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Les A.
23 June 2025
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Excellent traffic lawyers I owe them my life and job words are not enough to say how thankful i am for the help they gave me when i was going to lose the driver licence in magistrates court because of drink driving and drug driving. Approximate cost: $3000
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Jordan profile picture
Jordan
22 June 2025
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Best Lawyers! Absolutely first-class service from Talon Legal. I had a complicated traffic matter and wasn’t sure where to turn. From the first phone call, they were professional, understanding, and gave me clear advice without the legal jargon. On the day of court, they were calm and prepared and the result spoke for itself. I’m so grateful for their help and wouldn’t hesitate to recommend them to anyone needing help with a traffic offence.
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S A.
17 June 2025
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Brilliant traffic lawyers in adelaide Helped me get my licence back in the magistrates court after I applied for a licence appeal because I breached my provisional conditions. Made it straightforward and helped me stay calm. Treated me like a normal person and was very compassionate. You saved my job legends Approximate cost: $1800
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SA
16 June 2025
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Successful drivers licence appeal! Made the process really easy for me to understand and helped me appeal my licence in the magistrates after it was disqualified for breaching a licence condition. Thank you legends, I would have been stuffed if I lost my licence without you guns!
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TK
5 April 2025
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Best traffic lawyers in Adelaide I came across talon legal when I was looking for a law firm in Adelaide to represent me for traffic offences while visiting from overseas. They were very professional, fast, friendly and down to earth. Dan handled my mater and got me a very good outcome at a fixed cost.

What should an influencer agreement cover?

Start with the deliverables. The agreement should list each post, story, video or appearance by platform, format and date, set the approval process and say how the commercial relationship will be disclosed in each post. Approval should not shift responsibility for claims a creator adds after sign-off.

Then the rights and the money: where, how and for how long the brand may use the content, including in paid advertising, whether the creator may promote competitors, and when each payment falls due. Tying payments to the approval or posting of each deliverable makes the fee follow the work. The agreement should also say what happens if a post is late or never published, and how either side can end the deal.

Name the right parties. Talent engaged through an agency or a personal company should also sign personally, because the brand needs promises from the person whose face and conduct carry the campaign. An influencer agreement lawyer will also check whether the brand’s standard terms are caught by the unfair contract terms provisions (ACL section 23). A giveaway run through a creator’s account should be checked against the rules in the trade promotions guide.


What is the risk if a paid post is not disclosed?

Exposure under the Australian Consumer Law, for the creator and possibly the brand. A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive (ACL section 18). In trade or commerce, in connection with promoting goods or services, a person also must not make a false or misleading representation that purports to be a testimonial, or one concerning a testimonial (section 29(1)(e) and (f)). A sponsored post that reads as an unprompted recommendation risks both. If the creator was paid or given the product free, the impression that they chose it on its merits may be false.

The first impression counts. In ACCC v Employsure Pty Ltd [2021] FCAFC 142, the Full Court said many readers read an advertisement fleetingly and absorb its general thrust, and the first impression will often decide what is represented ([98]). A disclosure buried in a string of hashtags sits poorly with that. The agreement should require a plain disclosure at the start of every caption or video, and let the brand have a non-compliant post corrected or removed.

The brand can share the risk, because section 29(1) applies to any person making such a representation in connection with the promotion of goods or services, by any means. The maximum penalty for a body corporate that contravenes section 29 is the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. For anyone else it is $2,500,000 (section 224(3) and (3A)).


When does using a person’s image become false endorsement?

When it suggests an endorsement the person has not given. In Pacific Dunlop Ltd v Hogan [1989] FCA 185, an advertisement for shoes drew on the Crocodile Dundee image, and Mr Hogan and the film makers had not agreed to it. The case was decided under s 52 of the Trade Practices Act 1974, which used the same operative words as ACL s 18.

Beaumont J asked whether a significant section of viewers would be misled into believing, contrary to the fact, that a commercial arrangement had been concluded under which Mr Hogan agreed to the advertising ([31]). He found the thrust of the advertising put the image forward as endorsing the product ([36]), and said a caricature “embedded” in an advertisement conveys endorsement ([38]). Burchett J asked more directly whether the advertisement conveys a false message of endorsement by the celebrity ([2]), and said the vagueness of a suggestion does not save it ([10]).

The same question arises when a brand turns a creator’s unpaid post into a paid ad, or runs paid content after the licence has ended. Claiming official status is also risky. A false or misleading representation that goods or services have sponsorship or approval, or that the person making it has a sponsorship, approval or affiliation, is prohibited (section 29(1)(g) and (h)). That can catch a creator who calls themselves an “official ambassador” without a deal.


What can an influencer say about a product?

Only what is true and can be backed up. Section 29(1) also prohibits false or misleading representations about the standard, quality, value or grade of goods or services (section 29(1)(a) and (b)). A representation about a future matter, such as what a product will do, is taken to be misleading if the person making it did not have reasonable grounds for it (section 4(1)).

Testimonials carry a special rule. In a proceeding, a representation of the kind in section 29(1)(e) or (f) is taken to be misleading unless evidence is adduced to the contrary (section 29(2)). In practice the brand should be able to show the creator used the product and that the words reflect the creator’s own experience.

The brand should supply the approved key messages and the evidence behind any performance claim. The creator should use the product before posting and keep to the approved claims. Some brands also ask the creator to confirm in writing that they have used the product and that the post is their honest view.


Who owns the content, and how can the brand use it?

The creator, unless the agreement says otherwise. The author of a literary, dramatic, musical or artistic work owns the copyright (Copyright Act section 35(2)). A photograph is an artistic work, and its author is the person who took it (section 10(1)). Work made under a contract of service belongs to the employer (section 35(6)), but most creators are not employees. A photo commissioned for a business purpose from a creator who is not an employee therefore stays with the creator unless the contract assigns it, in writing signed by or on behalf of the creator (section 196(3)). An agreement signed before the content is made can assign the future copyright (section 197(1)).

Video works differently. The maker of a cinematograph film owns its copyright (section 98(2)). But where a person agrees, for valuable consideration, for another to make a film, and it is made under that agreement, the commissioning person owns the copyright in the absence of any agreement to the contrary (section 98(3)). A brand that pays for a video may own it, while photographs from the same shoot stay with the person who took them.

Ownership and use are separate questions. A common structure leaves copyright with the creator and grants the brand a licence stating the channels, the territory, the period and whether it is exclusive. A licence is exclusive under the Act only if it is in writing, signed by or on behalf of the owner (section 10(1)). Using content outside the licence, such as in paid ads after the period ends, can infringe copyright (section 36(1)), and the owner’s remedies include an injunction and either damages or an account of profits (section 115(2)).


Can the brand edit the creator’s work?

Only within the creator’s moral rights, or with written consent. The author has a right of attribution of authorship (section 193(1)) and a right of integrity, not to have the work subjected to derogatory treatment (section 195AI). A moral right is not transmissible by assignment (section 195AN(3)), so an assignment of copyright does not carry it.

For works that are not in films, an act or omission within a written consent genuinely given by the author does not infringe. The consent must relate to specified acts or classes of acts, and specified works, which can include future works (section 195AWA). The agreement should name the acts the brand needs, such as cropping, editing, adding text or logos, and using content without a credit. Because section 195AWA applies to works not in films, moral rights in video need separate treatment.

Creators can limit the consent, for example by allowing edits for length and format but not edits that change the meaning of what they said.


How far can exclusivity go?

As far as the brand can justify. Brands usually want the creator not to promote competing products during the campaign and for a period after it. The clause should define the competitor category narrowly, state the period and platforms, and say whether it covers unpaid posts as well as paid ones.

A ban that continues after the engagement ends invites a restraint of trade argument. In Peters (WA) Ltd v Petersville Ltd [2001] HCA 45, Gleeson CJ, Gummow and Hayne JJ said most restraint of trade cases turn on the reasonableness of the restraint, particularly in relation to the parties’ legitimate interests. Whether there is a restraint at all is answered by its practical working rather than merely its legal form ([14]). As Callinan J described the presumption, restraints of trade are contrary to private and public interests and unenforceable unless the party relying on the restraint shows otherwise ([51]).

For a creator whose income depends on brand deals, a broad post-term ban can cost more than the fee. A brand that needs one should pay for it as a separate right.


What should morals and termination clauses say?

Both sides need a clear way out. A morals clause lets the brand end the deal if the creator’s conduct damages its reputation. It should describe the trigger, such as criminal charges, say who decides and on what standard, and deal with fees paid and content already published. Creators should ask for an objective trigger, and a matching right if the brand’s own conduct makes the association damaging.

A clause requiring repayment of every fee, or payment of a fixed sum, on any breach may be challenged as a penalty. In Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28, Kiefel J (French CJ agreeing) said the question is whether a provision for payment of a sum on default is out of all proportion to the interests of the party which it is the purpose of the provision to protect. Those interests may be of a business or financial nature ([29]). A refund limited to undelivered work is easier to defend.

On termination, the agreement should say whether the brand must stop paid placements and remove content, by when, and whether the creator must take down posts from their own accounts.


Can a health practice work with influencers?

Only within strict limits, and never with testimonials. A person must not advertise a regulated health service, or a business that provides one, in a way that uses testimonials or purported testimonials about the service or business (Health Practitioner Regulation National Law (South Australia) section 133(1)(c)). The advertising also must not be false, misleading or deceptive or likely to be, or create an unreasonable expectation of beneficial treatment (section 133(1)(a) and (d)). The maximum penalty is $60,000 for an individual and $120,000 for a body corporate (section 133(1)).

A regulated health service is a service provided by, or usually provided by, a health practitioner (section 133(4)). The prohibition applies to any person who advertises such a service, not only the practitioner. In practice that rules out the most common influencer brief for a clinic: a paid or gifted post in which the creator describes their own treatment and how it went.


What about children, talent and releases?

Everyone who appears should have agreed in writing. A creator who films friends, family or members of the public for a brand post should obtain a signed release from each identifiable person, and the brand should ask for copies before the content runs in paid media. The film releases and clearances guide covers appearance releases, and the testimonial and image consents guide covers customers and staff.

Children need extra care. Brands commonly require a parent or guardian to sign for a child who appears, limit how the child is identified, and keep the release with the campaign records.

Talent supplied through an agency or the talent’s own company should give the brand personal promises on conduct, exclusivity and approvals, as well as the company’s. A three-party agreement, or a side letter signed by the talent, is a common answer.


How similar matters tend to play out

Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcome depends on the documents, the evidence and the court.

Lower range. An Adelaide skincare brand pays a creator for three posts, disclosed only in a hashtag at the end of a long caption. A follower complains. The risk sits under sections 18 and 29(1)(e) and (f), and the first impression counts (Employsure at [98]). Moving the disclosure to the start of each post, and adding a disclosure clause, deals with it.

Middle range. A cafe group pays a creator to film a video and take stills, under an agreement silent on ownership. A year later it runs the video in paid ads and puts the stills on its menus. It may own the video (section 98(3)), but the stills belong to the creator (sections 10(1) and 35(2)), and using them without a licence can infringe (section 36(1)).

Upper range. A fitness brand signs an ambassador for 12 months, with a two-year post-term ban on working with any wellness business and repayment of all fees on any breach. The ambassador misses one post, the brand terminates and demands every dollar back, and the ambassador signs with a competitor. The repayment clause invites a penalty challenge (Paciocco at [29]) and the ban a restraint of trade argument (Peters at [14]).


How we act on influencer agreements

Our influencer agreement lawyers act for brands and agencies engaging creators, talent and ambassadors, and for creators and talent reviewing a brand’s terms. For a brand, the aim is content it can use and rely on. For a creator, it is a clear brief and fair usage terms.

StageWhat happensWhat we do
BriefThe brand settles the campaign and deliverables.Advise on claims, disclosure and health advertising rules.
DraftingThe agreement or standard terms are prepared or reviewed.Draft deliverables, approvals, usage rights, moral rights consent, exclusivity and termination.
ApprovalDrafts are submitted before posting.Review captions and claims for disclosure and substantiation.
DisputeA post, payment or use of content is disputed.Advise on copyright, the contract and the ACL, and negotiate takedowns or payment.
ExitThe campaign ends or is terminated.Enforce takedowns, licence expiry and final payment.

We cannot promise an outcome, and no lawyer can. We can make sure the agreement deals with ownership and disclosure before anything is posted.

Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.


Influencer agreement case law

None of the decisions below concerned an influencer agreement; each decided a point that applies to one.

CaseCourtPrinciplePinpoint
Pacific Dunlop Ltd v Hogan [1989] FCA 185Full Federal CourtAdvertising conveying a false endorsement by a celebrity can misleadBeaumont J [31], [36], [38]; Burchett J [2], [10]
ACCC v Employsure Pty Ltd [2021] FCAFC 142Full Federal CourtAdvertisements are read fleetingly; the first impression often decides[6], [98]
Peters (WA) Ltd v Petersville Ltd [2001] HCA 45High CourtRestraint of trade: threshold questions and reasonableness[14]; Callinan J [51]
Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28High CourtTest for a sum payable on default[29]

Case notes

Pacific Dunlop Ltd v Hogan [1989] FCA 185

Decided under s 52 of the Trade Practices Act 1974, which used the same operative words as ACL s 18. Beaumont J asked whether a significant section of viewers would be misled into believing Mr Hogan had agreed to the advertising under a commercial arrangement ([31]), and found the advertising put the Crocodile Dundee image forward as endorsing the product ([36], [38]). Burchett J asked whether it conveyed a false message of endorsement ([2]), and said vagueness does not save a suggestion ([10]). The appeal was dismissed with costs.

ACCC v Employsure Pty Ltd [2021] FCAFC 142

Search ads using keywords such as “fair work ombudsman” put those words in the headlines of ads that did not mention Employsure ([1] to [2]). The Full Court held the ads conveyed a government affiliation Employsure did not have, contravening ACL sections 18 and 29(1)(b) and (h) ([6]), and said the first impression will often decide what is represented ([98]).

Peters (WA) Ltd v Petersville Ltd [2001] HCA 45

Gleeson CJ, Gummow and Hayne JJ said most restraint of trade cases turn on reasonableness, and whether there is a restraint at all depends on its practical working rather than merely its legal form ([14]). Callinan J described the presumption that restraints are unenforceable unless the party relying on them shows otherwise ([51]).

Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28

Kiefel J, with whom French CJ agreed, asked whether a provision for payment of a sum on default is out of all proportion to the interests it is intended to protect ([29]). Both appeals were dismissed with costs.


Frequently asked questions

What is an influencer agreement?

A contract between a brand, or its agency, and a creator that sets the content, approvals, disclosure, the brand’s rights in the content, exclusivity, payment and termination.

Do influencers have to disclose paid posts?

In practice, yes. A post that presents a paid endorsement as independent opinion risks contravening ACL section 18 and section 29(1)(e) and (f). A plain disclosure at the start of every sponsored post is the safe course.

Who owns content an influencer creates for a brand?

For photos and written content, the creator, unless the copyright is assigned in writing (Copyright Act sections 35(2) and 196(3)). A video the brand paid for may belong to the brand unless the agreement says otherwise (section 98(3)).

Can a brand keep using an influencer's content after the campaign ends?

Only if its licence, or its ownership of the content, allows it. Use outside the licence can infringe copyright (section 36(1)).

Can a brand use a creator's image or posts without a deal?

Not safely. Using the content without a licence can infringe copyright (section 36(1)), and advertising that conveys a false message of endorsement can mislead (Pacific Dunlop v Hogan, Burchett J at [2]).

What is a morals clause?

A term that lets the brand end the deal if the creator’s conduct damages its reputation. A repayment obligation out of all proportion to the brand’s interests is open to challenge as a penalty (Paciocco, Kiefel J at [29]).

Can an influencer work with competing brands?

Yes, unless the agreement restricts it. A ban that runs after the deal ends invites a restraint of trade argument, which usually turns on reasonableness (Peters (WA) v Petersville at [14]).

Can a health clinic pay influencers to promote it?

Not to give testimonials. Advertising a regulated health service must not use testimonials or purported testimonials, on pain of a maximum penalty of $60,000 for an individual and $120,000 for a body corporate (Health Practitioner Regulation National Law (South Australia) section 133(1)(c)).

Who is responsible for a misleading sponsored post?

Either can be, depending on who made the representation. Section 29(1) applies to any person who, in trade or commerce, makes a false or misleading representation in connection with the promotion of goods or services, by any means.

Do I need an influencer agreement lawyer?

For any campaign where paid content, usage rights or exclusivity matter, yes. An influencer agreement lawyer can settle the deliverables, disclosure, ownership and exit terms before anything is posted. A free 30-minute consultation will tell you where you stand.


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