When it comes to business contracts, there are all sorts of clauses and agreements you can include. However, the question is if you should. Influencer campaigns are non-traditional in many ways, but you should still opt for a signed contract before anything gets started. With that said, many traditional clauses and agreements are not needed. Are non-competes included in these obsolete items?

Do You Need Your Influencer to Sign a Non-Compete Agreement?

Do You Need Your Influencer to Sign a Non-Compete Agreement?

First, Understand What a Non-Compete Is

A non-compete agreement is a separate contract or clause within the main contract between an employer and their employee. This agreement or clause stipulates that the employee is now allowed to enter into another position of employment with companies or brands that can be classified as competition throughout the duration of their contract or for a set time after the contract is complete or employment is terminated. This set time must be reasonable, though what is reasonable is not strictly defined; however, the idea is that the non-compete cannot prevent the employee from advancing within their field or making a living even without advancement.

The Problems with Non-Competes in Influencer Marketing

On the surface, having a non-compete might sound like a solid idea. However, there are problems with it within the realm of influencer marketing that you need to keep in mind.

The Definition: Going back to the definition, one of the first things to notice is the employer/employee language. This means that non-competes, in general, are based on the idea that there is a certain power structure in place; the employee serves you, the employer. However, influencer relationships are bidirectional; the influencer helps you and you help the influencer in terms of growth, exposure, and more. When you frame it this way, it makes just as much sense for the influencer to restrict who you work with as it does for you to restrict those the influencer works with.

What Constitutes Competition: If the goal is to prevent the influencer from working for a competitor, you will need to figure out what constitutes a competitor in the first place. If you are a beauty brand that specializes in organic skin care, would working for a makeup brand be a problem? While you are both beauty brands, the products do not directly compete. Is working for any other brand, no matter their focus, a problem?

Influencers Need Partnerships: Unless you are both compensating the influencer quite handsomely and offering all the exposure and growth they need, working for you and you alone isn’t going to be ideal for them. Even if you leave them open to working for other brands that you do not see as competition, that is likely to be an issue for an influencer. Why is this? Because influencers have niches. So if you say they promote any other beauty brand, but beauty is their niche, you are in effect preventing them from partnering with anyone except you.

US Law Only Governs Those in the US: And the same applies to other countries, so no matter where you reside, if the influencer best suited to you is not in the same country, you will struggle to enforce your non-compete even if the influencer readily agrees to it.

The Non-Compete May Not Even Be Valid: So, let’s say that all goes well. The influencer signs the agreement, the agreement outlines what you want it to, and they are in the same country as you. All is well, right? Not necessarily. Non-competes can be difficult to enforce, and the ability to enforce them varies by state. The limitations must be reasonable, but that is open to interpretation by the courts. Not to mention that the legal fees involved in enforcing the agreement can be too high to justify pursuing a case.

So, do you need your influencer to sign a non-compete? No, and chances are if you ask them to, it will sink the deal. And even if they do agree, it may not be worth much anyway. As such, our suggestion is to forgo the agreement when contracting influencers.

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March 14, 2018

Do You Need Your Influencer to Sign a Non-Compete Agreement?

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