Nowadays « influencers » are an integral part of the media space, wether they are communicating through social media such as facebook, instagram or youtube or people involved in fashion or reality shows.
Naturally, the advertising industry is taking advantage of this new type of communication by collaborating with influencers in different ways. Accordingly, the brands are keen to benefit from the aura of the influencer by being associated to them directly or indirectly.
This can take many forms and notably « sponsored » contents featuring brands and/or their products or classical advertising where the influencer acts as an icon for a brand or a product.
In this context and these different situations, it is necessary to consider the legal status of the contents produced in collaboration with a brand and that of influencers. Indeed, those statuses shall determine how influencers, advertisers, advertising agencies and producers shall work together.
Definition of the influencer and advertising contents
The french advertising self-discipline organisation, Autorité de Régulation Professionnelle de la Publicité (ARPP), defines the influencer in its recommendations regarding digital advertising as follows : "An individual expressing a point of view or giving advice, in writing, audio and / or visual, in a specific field and in a personal style or treatment which his audience identifies" who "may act editorially freely or in collaboration with a brand for the publication of contents (placement of products, participation in the production of content, dissemination of advertising content, etc.). "
This recommendation also includes that the audience shall be informed in case of commercial collaboration between an influencer and an advertiser regarding the publication of any content. The wording of such information will naturally depend on the nature of the collaboration and of the situations, but should be as clear as possible: "video produced by", "content sponsored by", "advertising" etc.
If no mention appears, such communication should be considered as misleading and therefore an unfair commercial practice as provided in articles L. 121-2, 3° and L 121-4 of the French Code de la consommation.
Moreover, such collaborations shall qualify as advertising if they meet the following criteria :
the advertiser or his representatives exercise a prevailing editorial control (notably by imposing mentions, a brief, a script, etc.) and validate the content;
the statement and speaking of the influencer aims to promote the product or service.
In this context, all the legal provisions related to advertising must apply as well as the ethical recommendations of the ARPP.
French judges developed the same analysis by stating notably that the fact that the intermediary who relays the advertising content is an ordinary Internet user who communicates with its "network of friends" does not modify the advertising nature of the content (Cass. 1re civ., 3 juill. 2013, n° 12-22.633, ANPAA : JurisData n° 2013-013917 ; Comm. com. électr. 2013, comm. 104).
Appearance in a commercials and modeling
With regard to the status of persons appearing in an advertisement, article L. 7123-2 alinea 1 of the French Code du travail provides expressly that "Is considered to be a model, even if such activity is only occasional, any person who is responsible to present to the public a product, a service or an advertising message, directly or indirectly, by reproducing his image on any visual or audiovisual medium."
Accordingly, it does not matter that the persons starring in the commercials are not professional models and do not usually exercise such activity. Under this provision, the influencers appearing in an advertisement must be considered as models.
In this context, it is then necessary to apply the corresponding regime as provided for in the French Labor Code and in the French collective agreement for adult models and models under 16 years old employed by model agencies dated 22 June 2004.
Obligations regarding models
According article L. 7123-3 of the French Labor Code any agreement by which a person ensures the assistance of a model against remuneration, is presumed to be an employment agreement. An interministerial circular has expressly completed that according such provision a model can not be considered as a self-employed worker and be paid on invoice.
It is to be highlighted that the method of remuneration has no effect, which notably includes payment in kind. Therefore, the Paris court of appeal established that the "shooting assignment of image rights agreement" between a model and a clothing manufacturer "free of charge" but in exchange for the allocation of clothing by the company to the model for a specific value was to be regarder as an employment agreement (CA Paris, 5 oct. 2016, n°13/11535).
On the other hand, since the presence of the model is no longer required, the remuneration of the model for the exploitation of a recording is not considered as a salary (Article L. 7123-6 of the French Labor Code). It is therefore necessary to establish a separate assignment of rights agreement, which authorizes the exploitation of the recording and remunerates the exploitation of the image of the model.
Therefore, the remuneration of a model is composed of two parts : a salary for its performance and a compensation for the exploitation of its image through the recordings.
The collective agreement further provides an automatic transfer of the rights of the model for the exploitation of the recordings in France for 12 months and only in the press and in the mail orders catalogs, without additional remuneration from the employer (Article 16.2 ). Any other exploitation shall be subject to an assignment of rights detailing at least the relevant marketing campaign, the product(s), the media supports, the extent of the assignment (duration and territory) and the performance concerned (article 16.5).
The assignments of image rights are usually concluded for a one year period renewable with annual prices to be paid at such renewal. The collective agreement also establishes the minimum remuneration to be provided for in the employment contract of the models, in particular according to the experience of such models..
Models and modeling agencies
Employment of models implies to resort to modeling agencies. Indeed French Labor Code provides that "When a modeling agency makes a model available to a user, an availiability contract is made in writing between the user and the agency. This contract specifies the characteristics of the service requested from the model. (...) ".
Thus, the relationship between the Parties is three party and bounds the modeling agency and the user through the availability contract (commercial contract) and the agency and the model through an employment agreement. Accordingly three agreements shall be established : availability contract, an employment agreement and an assignment of rights. As an exception, it is possible for the end user to directly hire a model without resorting to an agency, provided that there is no intermediary (advertising agency, producer etc.).
It should be noted here that the modeling agency activity is a regulated activity that involves obtaining a license (Article L. 7123-11 of the Labor Code).
Finally, brands and influencers may establish non commercial relationships. A brand may notably transmit its press releases to influencers, invite them to events or to try its products, without any obligation for the influencer to communicate in this respect.
In this context, it is important to be vigilant and it remains best to inform the audience in a transparent manner, in particular by stating that the brand has invited the influencer or made products available to the influencer free of charge.
It should also be noted that beyond its status as a model, the influencer can also be author of his creations or performer etc. and it is actually necessary to study each situation in order to set up the appropriate contract (s).
Therefore, it is wise to consult wit a specialized lawyer who will study the specificities of the project and will draft and negotiate the necessary agreements at best for the parties.