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
| Issue | Position in South Australia |
|---|---|
| Undisclosed paid posts | Presenting a paid endorsement as independent opinion risks contravening ACL section 18 and section 29(1)(e) and (f) (false or misleading testimonials). |
| Testimonials in court | Taken to be misleading unless evidence is adduced to the contrary (section 29(2)). |
| Maximum penalty, section 29 | Body 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 endorsement | Advertising 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 copy | Owned by the author unless assigned in writing, signed by or on behalf of the author (Copyright Act sections 35(2) and 196(3)). |
| Commissioned video | Owned by the person who agreed, for valuable consideration, to have it made, absent an agreement to the contrary (section 98(3)). |
| Moral rights | Not transmissible by assignment (section 195AN(3)). For works not in films, a written consent covering specified acts and works allows editing (section 195AWA). |
| Exclusivity | Whether 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 services | Advertising 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 step | Same-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.
On this page
- What should an influencer agreement cover?
- What is the risk if a paid post is not disclosed?
- When does using a person's image become false endorsement?
- What can an influencer say about a product?
- Who owns the content, and how can the brand use it?
- Can the brand edit the creator's work?
- How far can exclusivity go?
- What should morals and termination clauses say?
- Can a health practice work with influencers?
- What about children, talent and releases?
- How similar matters tend to play out
- How we act on influencer agreements
- Case law
- Frequently asked questions
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.
| Stage | What happens | What we do |
|---|---|---|
| Brief | The brand settles the campaign and deliverables. | Advise on claims, disclosure and health advertising rules. |
| Drafting | The agreement or standard terms are prepared or reviewed. | Draft deliverables, approvals, usage rights, moral rights consent, exclusivity and termination. |
| Approval | Drafts are submitted before posting. | Review captions and claims for disclosure and substantiation. |
| Dispute | A post, payment or use of content is disputed. | Advise on copyright, the contract and the ACL, and negotiate takedowns or payment. |
| Exit | The 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.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| Pacific Dunlop Ltd v Hogan [1989] FCA 185 | Full Federal Court | Advertising conveying a false endorsement by a celebrity can mislead | Beaumont J [31], [36], [38]; Burchett J [2], [10] |
| ACCC v Employsure Pty Ltd [2021] FCAFC 142 | Full Federal Court | Advertisements are read fleetingly; the first impression often decides | [6], [98] |
| Peters (WA) Ltd v Petersville Ltd [2001] HCA 45 | High Court | Restraint of trade: threshold questions and reasonableness | [14]; Callinan J [51] |
| Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28 | High Court | Test 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.