Influencer Marketing and Agency Contracts: Navigating Legal Challenges and Opportunities
Influencer marketing and agency collaborations have gained enormous importance in recent years. New technologies, global networking, and changing business models present both creator contracts and agency contracts with fresh challenges. This specialist article highlights two key topics: Firstly, collaboration with influencers (creator contracts), and secondly, collaboration between agencies and clients (agency contracts 2.0).
What rights and obligations should be regulated in modern contracts? Where are the legal pitfalls? And how can flexibility be reconciled with legal certainty? This overview, based on current German and relevant EU law, addresses important trends such as artificial intelligence (AI), deepfakes, and new working models. Our aim is to present practical solutions for advertisers, influencers, and agencies to minimize legal risks and enable successful collaborations.
Creator Contracts 2025: Rights, Obligations, and Pitfalls When Working with Influencers
A well-drafted creator contract forms the basis for successful influencer campaigns in social media.
Modern influencer or creator contracts regulate the cooperation between companies (advertisers) and content creators in detail. As influencer marketing often relies on authenticity and reach, contracts must strike a balance between control and creative freedom. In 2025, AI technologies and virtual avatars will also play an increasingly important role, which must be taken into account in these agreements.
Below, we highlight the most important areas of regulation and potential pitfalls of a creator contract.
Clear Service Descriptions and Obligations of the Parties
A creator contract should first clearly outline the specific services. Companies usually commission influencers to present certain products or services on social networks. The contract should set out what is expected, so both parties understand their roles.
Key specifications include:
- What content will be published on which platforms?
- How many posts or stories will be placed and when should they go online?
- Qualitative specifications such as briefing details for the brand, desired messages, hashtags, or design guidelines.
It is important to set a time frame or posting period. Although influencers often enjoy some freedom in choosing the exact time of a post, the advertising client can still define a deadline. If a fixed publication date is agreed as a fixed transaction (see Section 323 (2) No. 2 BGB), the client can even withdraw from the contract immediately if the deadline is not met. Clear deadlines and milestones are essential to avoid misunderstandings.
Obligations of the Influencer
In return for remuneration, the creator undertakes to create and post the agreed content properly. The contract should stipulate the minimum length of time a post must remain online (e.g., "do not delete or archive for at least X months"). It should also specify whether and how the influencer should respond to comments or provide follow-up support.
Another essential obligation is the labeling of advertising. The contract should expressly oblige the influencer to mark all posts as advertising in accordance with legal requirements (UWG and media law). This can be done using hashtags such as #Advertising or the platform function "Paid Partnership". If the influencer fails to do this, there is a risk of warnings for surreptitious advertising – a risk the client should not underestimate.
It may therefore make sense to provide for a contractual penalty for breaches of labeling obligations to encourage compliance. However, a contractual penalty must be reasonable. Excessive penalties would be invalid under German law (Section 307 BGB for general terms and conditions clauses and Section 138 BGB for immorality).
Obligations of the Advertising Client
The company also has cooperation obligations. For example, it is common for the company to provide the influencer with the advertised products free of charge. The contract should regulate whether the products are to be returned after posting or if the influencer may keep them.
The advertising client should also provide the creator with all necessary information, logos, hashtags, etc., required for content creation in a timely manner. Finally, the client must pay the agreed remuneration on time, which we will discuss next.
Remuneration Models: Flat Rate, Reach Contract, and Profit Sharing
The fee agreement is at the heart of every influencer contract. The basic principle is: no service without consideration. Influencers provide their reach and access to the target group, receiving a fee in return. This can be agreed as a traditional flat fee (e.g., a fixed amount per post or campaign).
For influencers with a very wide reach, such flat rates can easily amount to several thousand euros per post. Companies should negotiate here and leave nothing to chance. Without a clear fee agreement, the "usual remuneration" would have to be paid in the event of a dispute (Section 612 BGB), which can be unpleasantly high, especially for well-known influencers.
In addition to fixed amounts, modern models like reach contracts or performance-based remuneration exist. A reach contract links the fee to the actual reach achieved by the post, such as views, likes, clicks, or generated sales (affiliate links, discount codes). For example, a basic fee with a bonus per 1,000 views can be agreed upon.
This model incentivizes the influencer to maximize performance, and the advertiser's risk is reduced if the response is low. However, this requires reliable metrics and a clear definition of how success is measured (e.g., screenshots of insights, access to analytics, or tracking links). Both sides should also set an upper limit and billing period to avoid disputes over measurement times.
Alternatively or additionally, a profit share can be agreed upon. For instance, the influencer receives commission for every sale generated via their link. Such models are more similar to affiliate agreements and can be included in the contract alongside or instead of basic remuneration.
It is not uncommon for payment to be made in kind. Free products, invitations (such as trips/events), or vouchers can serve as part of the remuneration. This is permissible but must also be precisely quantified in the contract, possibly with a monetary value for tax reasons. If, in exceptional cases, no remuneration is paid at all, for example, for a pure product test without a fee, this should also be recorded in writing (e.g., "cooperation without monetary remuneration – product is provided for testing purposes").
This documentation helps prevent ambiguity and demonstrates that the post could potentially be considered private if there is no payment (keyword: labeling obligation – according to Section 5a (4) UWG, advertising must only be labeled as such if there is consideration; however, caution is required, as self-promotion or image cultivation can also be classified as business, as the BGH ruled in 2021).
Buyout Clauses and Rights of Use: Who Owns the Content?
A central point of modern creator contracts concerns the rights of use to the content created by the influencer (photos, videos, texts, etc.). In influencer marketing, content is often produced not only for the creator's channel but also for further use by the advertising company. This could include use on their own website, in social media ads, or even in print campaigns.
Without an express agreement, however, the client only has a very limited right of use. According to the legal doctrine of assignment of purpose (Section 31 (5) UrhG), the client implicitly only receives the rights absolutely necessary for the contract's purpose. In case of doubt, this might only cover a one-time posting by the influencer themselves, but not further exploitation by the advertising client.
It is therefore strongly recommended that a detailed transfer of rights is included in the contract. A simple or exclusive grant of usage rights to all created media is common. Today, many companies demand a "buyout", which signifies a comprehensive, exclusive right to use the content.
This includes, for example, the right to use the influencer's photos/videos for an unlimited period, worldwide, across all media (social media, website, flyers, TV, etc.) for advertising purposes, and also to grant sublicenses to group companies. Such a total buyout offers the advertising client maximum flexibility. They can use the campaign content freely in the future without having to seek permission or pay again.
For the influencer, however, it means largely relinquishing control over their content; they should demand correspondingly higher remuneration for this. Tip: From the influencer's perspective, it makes sense to check whether the scope of the transfer of rights is truly necessary. It is often possible to agree on specific types of use (e.g., online use for 1 year in German-speaking countries) instead of giving up "all rights" across the board. This way, their own brand remains protected, and it's possible to negotiate an additional fee for further uses later.
In any case, the scope of the rights granted must be described in detail in the contract, specifying which media, which period, exclusivity (yes/no), the right to edit the content, and so on. The right to edit is particularly tricky. Without consent, a company would not be allowed to subsequently alter or crop a photo provided by the influencer if this affects the influencer's personal rights. The influencer, as the author or person depicted, has a right to their own image and protection against distortion.
Contracts should therefore regulate the extent to which the client may make changes. From the company's perspective, at least the adjustment of size/cropping or the use of short excerpts from a video should be permitted, as long as the character is not distorted. For extensive edits (e.g., montages), prior consultation with the creator is recommended to avoid conflicts.
Control vs. Creative Freedom: Rules for Content Approval
A frequent area of tension lies in the relationship between customer control and the creative freedom of the influencer. On one hand, the advertising company wants to ensure that the brand message is conveyed correctly and legally. On the other hand, influencer marketing thrives on authenticity. The creator knows their community best and understands what tone will resonate. Excessive regulation can make posts appear stiff and untrustworthy.
Solution: Briefing and Approval Processes
Clear briefing and approval processes should be agreed upon in the contract. For example, it can be stipulated that the influencer submits a draft post to the client for approval before publication. The client may then check for compliance with trademark regulations, content requests, and legal requirements (labeling, no misleading statements, no prohibited content).
However, this check should be carried out within short deadlines to avoid excessively slowing down the creative process. Furthermore, the influencer must be allowed to translate the message into their own language. Only they can authentically address their followers.
Practically, this means the contract can set a framework (do's and don'ts, e.g., no vulgar language, certain product information must be mentioned, no mention of competitors, etc.). Within this framework, the creator should be allowed to formulate and design independently. Both sides should view each other as equal partners: The company provides the core content points, and the influencer contributes creativity and reach.
Exclusivity and Non-Compete Clauses
Control also includes the desire of many advertising clients for their influencer not to advertise for competing brands simultaneously. Exclusivity clauses are common; for example, that the creator may not advertise for direct competitors of the client during the campaign period and X months thereafter. However, these clauses must be appropriate in terms of time.
Influencers who rely on advertising contracts cannot economically afford to be tied down for too long. Courts view excessively long commitments critically: a contract that disproportionately inhibits the influencer's professional development could be invalid as an immoral restraint (Section 138 BGB). In 2021, for example, the Potsdam Regional Court overturned an excessive exclusive contract that unduly restricted an influencer.
As a rule of thumb, what applies to commercial agents or artists applies analogously: post-contractual non-compete clauses of more than 2 years are invalid, and compensation must be paid for the duration of the ban (see Section 74a HGB analogously). In practice, many companies refrain from long post-contractual obligations and limit exclusivity to the term of the cooperation or a few months thereafter.
It is important for both sides to find a healthy balance. For example, an industry-specific advertising ban for 3-6 months can protect the advertising value of the campaign without locking the creator in a "golden cage". In case of doubt, the influencer should receive additional remuneration for longer exclusivity.
Use of AI, Deepfake Voices, and Virtual Influencers: Need for Regulation
Artificial intelligence is increasingly entering the influencer business. Creators are using AI tools to create content (e.g., automated video or image generation), and even virtual influencers – computer-generated personalities with real followers – are emerging. These developments raise novel legal issues that should be proactively addressed in today's contracts.
AI-Generated Content by the Creator
If an influencer uses AI to generate photos, texts, or voice (e.g., a tool that synthesizes their voice as a deepfake or creates a digital avatar of themselves), the question of copyright and personal rights arises. Generative AI can be problematic, as the works created often lack a human author, so they could be free of copyright protection. This implies that, theoretically, any third party could use such images because no classic copyright applies.
This is tricky for the advertising customer: You pay for content to which you cannot acquire exclusive rights due to a lack of protection. On the other hand, there is a risk that AI outputs may contain protected third-party material after all (keyword: training data), which could lead to copyright infringement. Contract tip: The influencer should ensure they only use AI tools whose use is legally unobjectionable and that the results are free from third-party rights.
If necessary, it can be agreed that the rights-neutral design of AI content must be guaranteed or that the creator will fall back on traditional production in case of doubt. It should also be stipulated who receives the rights to use AI content. To be on the safe side, this should be treated as a normal copyrighted work, including all necessary authorizations for the client.
Deepfakes and Virtual Avatars
Another question is whether the influencer has to appear in person. Thanks to AI, a creator could, for example, have a digital avatar of themselves produced in any quantity instead of their own videos or have their voice generated by AI in different languages without speaking themselves. For advertisers, this may not seem to matter at first glance, as long as the external impact is right, but there should be legal transparency.
With the upcoming AI Act, the EU is working on regulations requiring AI-generated deepfake content to be labeled if it simulates a deceptively genuine human appearance. Contracts should therefore stipulate that the influencer discloses the use of such techniques. Additionally, a virtual clone always affects the influencer's general right of personality (right to one's own image and voice).
Without express permission, neither the influencer themselves nor, even more so, the client would be allowed to use a digital doppelganger. If, for example, a company simply continues to use an AI clone of the influencer as an advertising figure after the collaboration ends, this would seriously violate personal rights, leading to claims for damages and injunctive relief. It is therefore advisable to clearly regulate in the contract whether and how AI may be used.
For example, it could be stipulated that the influencer personally provides the services and only uses AI as an aid, without artificially faking their appearance. Conversely, influencer management that holds the rights to a creator should not be allowed to market an avatar of the creator without the creator's consent. Such scenarios may sound futuristic today, but they are rapidly becoming reality with technology; forward-looking contractual clauses provide security here.
Labor and Tax Law: Bogus Self-Employment, Artists' Social Security Contributions & Co.
Influencers are usually self-employed entrepreneurs of their own brand. But be careful: under certain circumstances, a creator can be legally considered an employee, with far-reaching consequences for everyone involved. Pseudo-self-employment is the keyword, particularly relevant when an influencer works very closely and exclusively for a client.
Avoid Bogus Self-Employment
In Germany, the German Pension Insurance (DRV) primarily checks whether someone is genuinely self-employed or actually employed. Typical criteria include: Does the influencer have to follow instructions from the client (content, time, place of work)? Are they integrated into the company's organization (fixed working hours, regular meetings, company email address)? Do they only have one client and not operate independently on the market? Do they use their own work equipment or that of the client (e.g., office at the client's premises)?
For example, if an agency signs a contract with a small influencer, tells them exactly what they have to post and when, perhaps even has them work in the office every day, and the influencer does not accept any other clients, then they have crossed the line into bogus self-employment. The influencer would de facto be an employee of the agency, regardless of what the contract is called. For more information, see Liability risks for esports teams when working with pseudo-self-employed players or Avoid bogus self-employment: What startups need to consider when working with freelancers.
Consequences of Misclassification
The consequences of such a misclassification are drastic. If the DRV or a social court subsequently establishes an employment relationship, the alleged client faces all social security contributions as back payments. This includes both employer and employee contributions! These can be claimed retroactively for up to 4 years, or even up to 30 years if intentional. Additionally, the person responsible may be liable to prosecution (criminal offense of withholding social security contributions, § 266a StGB).
The client would also be subject to labor law obligations: protection against dismissal, vacation entitlements, continued payment of wages in the event of illness – all of these would suddenly apply. Imagine an important influencer being officially "identified." They could then, for example, sue for unfair dismissal or demand vacation days. No company wants that to happen.
Practical Safeguards
To be on the safe side, parties can apply to the DRV for a status determination procedure in accordance with Section 7a SGB IV for longer-term engagements. This provides a binding decision on whether self-employment exists. This option should be considered if an influencer works almost exclusively for a client over a long period, but permanent employment is not desired.
Alternatively, if the involvement is indeed very close, it may even make more sense to employ the creator (e.g., for a limited period for the duration of the campaign). Some large companies are starting to manage particularly important influencers as employees or employee-like persons to cover pension and accident insurance. Of course, permanent employment also has disadvantages (non-wage labor costs, less flexibility in separation), but it can eliminate legal risks and provide certain social safeguards for the influencer.
Artists' Social Security Fund (KSK)
An often overlooked obligation in influencer marketing is the artists' social security contribution. Influencers who create creative content are increasingly considered artists or publicists within the meaning of the Artists' Social Insurance Act. The Künstlersozialkasse itself already includes "influencers" in its list of typical artistic professions. This means that companies that commission influencers may have to pay a levy (approx. 5%) to the KSK on the fees paid, similar to social security contributions, except that the client bears this alone. This levy funds the social insurance of freelance artists. More details can be found in What is the KSK and what is its aim? What advantages are there for artists?.
The legal situation is not yet set in stone, but the trend in practice is clear: companies or agencies that regularly advertise with influencers are treated as users of artistic services and assessed accordingly. Every client should therefore check whether they are required to register with the KSK to avoid additional payments and fines.
It depends on the nature of the activity. If the influencer creatively presents a product (own design, photo/video creation), there is much to suggest they are liable to pay contributions. If the influencer is only booked because of their name, without any creative service (e.g., pure testimonial with prefabricated text), it could be argued that it is more an exploitation of name rights. However, one should not rely on such subtle differences.
Tax Stumbling Blocks in a Cross-Border Context
Tax treatment is closely linked to employment law, especially when a creator from abroad works for German clients. Two main aspects lurk here: withholding tax and VAT. According to Section 50a of the German Income Tax Act (EStG), a German company may be obliged to deduct withholding tax from payments to service providers based abroad and pay it to the German tax office.
This rule is traditionally known for foreign artists performing in Germany but also applies to "performances" exploited in Germany. An influencer posting made for a German audience and generating income here can be classified as such a performance. Consequence: The German client must pay, for example, 15% of the fee to the tax office as withholding tax, provided there is no double taxation agreement to the contrary or the influencer does not provide proof of exemption. Companies should seek advice on this, as the rules are complex and errors can lead to tax liability.
VAT should also be taken into account for foreign influencers. If an influencer from a non-EU country provides a service for a German entrepreneur, the reverse charge procedure often applies. The recipient of the service owes the VAT in Germany (while the influencer invoices net). This should be correctly reflected in the contract and invoice to ensure input tax deduction and compliance. If the influencer is a small business owner or a foreign EU citizen with a VAT ID number, other requirements apply.
Although these points go beyond the scope of a single contract, they show that cross-border influencer collaborations require a comprehensive view of law and taxes. For international campaigns, it is advisable to also include a choice of law clause (e.g., German law) and a jurisdiction agreement or arbitration clause, ensuring clarity on where disputes will be resolved.
Last but not least, data protection aspects need to be clarified. Influencers sometimes receive access to personal data (e.g., if the advertiser sends product samples including address lists of testers, or if an influencer competition forwards participant data to the sponsor). The GDPR applies here. It should be agreed who is responsible in such cases and whether an order processing contract is necessary.
In most cases, the influencer is likely to post on their own responsibility (making them responsible for their follower data). However, as soon as they process data on behalf of the company, GDPR compliance must be contractually secured (e.g., standard contractual clauses if data flows to third countries). This area is becoming increasingly important given strict data protection supervision, especially when influencer teams are distributed internationally.
To summarize, a Creator Agreement 2025 is much more than a simple agreement for an Instagram post. It must cover a broad spectrum – from creative services and the transfer of rights to labor, tax, and data protection issues. Careful contract drafting, considering current developments such as AI, protects both parties from unpleasant surprises and lays the foundation for successful, long-term collaboration.
Agency Contracts 2.0: Between Agile Collaboration and Legally Compliant Performance Obligations
Collaboration between marketing agencies and their clients has changed dramatically in recent years. Rigid project plans are increasingly giving way to an agile way of working, where flexibility and quick reactions to trends are paramount. At the same time, clients naturally continue to expect reliable performance obligations and legal clarity about what the agency owes.
Modern agency contracts 2.0 attempt to strike this balance. They offer enough elasticity for creative processes and dynamic campaign adjustments without sacrificing legal bindingness. In the following, we highlight key aspects of such contracts, from retainer models and target agreements to rights of use and liability issues.
Retainer Models: Agile Long-Term Relationships Instead of Rigid Individual Orders
Retainer agreements are an important trend in agency-client relationships. Instead of billing each job individually, the agency and client agree on an ongoing lump sum (e.g., monthly) that ensures the agency's availability for a certain range of services. This model promotes a long-term partnership and enables agile working, as the budget is continuously available and can be flexibly allocated to different activities.
Contract Design for Retainers
A retainer agreement should clearly define which services are covered by the flat rate. For example, it could stipulate that the agency provides up to X hours of consulting services, Y social media posts, and Z graphics per month. It is important to manage expectations: is the retainer purely an on-call flat rate (i.e., the agency keeps capacity free, regardless of whether it is called up or not), or a contingent (i.e., certain volumes are actually delivered)?
If the customer requires less work in one month, the question arises whether unused hours expire or can be carried over to the next month. Conversely, if there is additional demand, how will overtime or additional projects be remunerated? All of this should be set out transparently in the contract to avoid discrepancies later on.
Retainer agreements often run indefinitely with a certain notice period (e.g., three months to the end of the quarter). Both parties benefit from predictability but can terminate the contract if necessary. From a legal perspective, retainers are usually classified as a service contract (Sections 611 ff. of the German Civil Code). The agency owes its activities (consulting, creative services), but not a specific outcome.
Precisely because the specific output cannot be determined in advance, it is difficult to define a work that would need to be accepted. Nevertheless, the contract can contain certain quality criteria (e.g., "develop social media strategies to increase the engagement rate by X%" – as a target, not as a guaranteed value). The advantage of the service contract is that it fits well with ongoing collaboration; the disadvantage is that the client bears the risk that no tangible success is achieved despite payment. However, this risk is mitigated in retainer models through close communication and ongoing success monitoring.
Advantages and Risks
For the client, a retainer means calculable monthly costs and preferential support (the agency has resources available). The agency has a regular income and planning security. However, the agency must be careful not to fall into a workload trap. If the client demands far more work than the fee covers, there is a risk of overwork or disputes. Therefore, it should be tracked internally whether the retainer is economically viable, and the model should be adjusted if necessary.
Conversely, the client should ensure they are getting value for money. Regular reporting can help here (see below). Overall, a retainer contract creates a framework structure within which you can act flexibly, similar to a "sprint budget" per month.
Target Agreements and KPIs: Making Success Measurable, Without the Guarantee Trap
Clients understandably want to see the success of the agency's performance. This is why modern agency contracts often contain target agreements or define key performance indicators (KPIs) that are to be achieved. Examples include a certain number of leads, an increase in followers by X%, click rates, or conversion rates. These goals are used for joint alignment and success monitoring. However, it is important to embed them properly in legal terms to avoid unintended promises of liability.
Differentiation: Target vs. Guarantee
A tricky point is whether the agency owes the achievement of these KPIs as a success or whether they are non-binding orientation values. If the contract states that the agency "guarantees" the client 100,000 new followers within 6 months, it would set a very strict success criterion. Failure to meet this could constitute a breach of contract.
In legal terms, this would be a contract for work and services with an owed success. If the success did not materialize, the client could demand a warranty or reduce the fee. However, since marketing success depends on many external factors (market trends, algorithm changes, client involvement, etc.), such a guarantee would be extremely risky for the agency.
In practice, it is therefore better to speak of "targeted goals" or "KPIs for measuring success." For example, the contract may state: "The agency shall develop measures to achieve an increase in reach of approximately 20% within 6 months. This target serves as a guide; it is aimed for, but not owed as a quality in the sense of a contract for work and services." It is thus clear that the agency must make an effort (implying a service character), but success is not guaranteed. The customer nevertheless retains an instrument for evaluating the service: if the KPIs fall far short of expectations, they can, for example, terminate the contract without notice or demand readjustment as part of contractually agreed feedback rounds.
Bonus Systems
Alternatively, target agreements can be combined with bonus regulations. If a certain target is exceeded, the agency receives a bonus. If it is clearly missed, it could accept a penalty (e.g., a bonus-malus system). A bonus incentivizes the agency to excel without the client automatically being left out in the cold in the event of failure. However, these models must remain within the limits of general terms and conditions (excessive malus agreements could be considered a contractual penalty and be invalid). The prospect of a contract extension in the event of good results is often sufficient motivation.
Reporting Obligations
To monitor targets, the contract should stipulate reporting and meeting obligations. For instance: monthly reporting of the most important KPIs and quarterly strategy meetings for evaluation. This creates transparency. If performance lags behind, countermeasures can be taken early on instead of having a rude awakening at the end of the contract. From a legal perspective, such reports also serve to document whether the agency has fulfilled its obligations. In the event of a dispute, a complete log of measures and results can be invaluable.
Agile Project Structure and Change Management in Contracts
Many agencies today work according to agile methods, whether Scrum-inspired in campaign development or a generally iterative approach with continuous optimization instead of a rigid plan. This raises the question: How do you reflect agility in a contract? Traditional contracts are based on a specification sheet fully defined at the start of the contract. In agile projects, however, requirements are refined or changed along the way.
Contractual Flexibility
To enable this, an agency contract can define a high-level catalog of services, for example, but clarify details via a defined process. For example, it could be agreed that the agency develops a marketing "product vision" with the client (e.g., increasing brand awareness in target group X) and defines the specific measures on a quarterly basis in consultation. You can learn from the IT sector here: agile contracts are often designed as a framework agreement that provides for iterations (sprints).
For each iteration, specific tasks (user stories) are defined in a sprint backlog, which are then processed and approved by the customer. Applied to marketing, this would mean that each month or quarter, for example, campaign priorities are planned (topics, channels, content), the agency implements them and reports the results, then a joint decision is made on what happens in the next cycle.
Change Requests
A good agency contract also includes change management. It often only becomes apparent in the course of the project that additional services are required or that certain originally planned measures can be omitted. The contract should regulate how changes are requested and approved. For example: the client can request a new service (such as additional video production) in a written change request; the agency calculates the additional work and communicates any additional costs or effects on the schedule; the changes only become binding once the client has approved them.
This avoids disputes as to whether something was included in the original fee or not. Transparency about changes is important to prevent budget overruns, especially when billing is based on time and materials rather than a flat fee.
Interim Acceptances
In agile projects, it is advisable to regularly accept or approve interim results. Even if the contract as a whole runs as a service contract, you can define subsections in which the client confirms results. Example: The agency creates an editorial plan and design concept in the first month – the client checks and approves this in writing. Later, there can no longer be any complaints about what has already been approved. This creates clarity on both sides.
If the contract is designed as a work contract (e.g., for a larger deliverable such as "development of a complete marketing campaign by date X"), milestones with partial acceptances can also be defined so that not everything has to be accepted all at once at the end. In this way, the final success is approached step by step.
Securing Work Results and Know-How in Agile Processes
In agile or retainer-based collaborations, work results are constantly being produced – strategy papers, drafts, graphics, texts, data analyses, reports, and much more. These interim results are often just as valuable as the final end product. From the customer's point of view, it is therefore crucial that they have access and rights to all relevant results, even if the collaboration ends prematurely.
Documentation
The contract should oblige the agency to document and publish key work results on an ongoing basis. For example, it could be stipulated that the agency provides the client with all created content files (image and video files in original resolution), reports (performance evaluations, social media statistics), and other deliverables in an agreed format on a monthly basis. In the age of cloud-based collaboration, it is ideal if the customer has direct read access to work folders or project management tools.
If this is not desired for security reasons, regular transfer by email or file sharing link is also sufficient. Important: Access data to accounts created on behalf of the customer belong to the customer. If the agency sets up a Google Ads account or a Facebook page for the customer, it must transfer the admin rights to the customer at the end of the contract. The same applies to any online accounts, domains, or software used as part of the project.
Early Termination
If the contract is terminated, the client needs the results already produced to continue with another agency or internally if necessary. For this reason, the contract should include a right to the return of all works and documents created up to that point. The agency, in turn, has a legitimate interest in being paid for unpaid expenses up to that point; the statutory provisions then apply (e.g., Section 648 BGB in the event of termination of a contract for work and services: remuneration less expenses saved).
To avoid disputes, you can stipulate in the contract that in the event of termination, the customer must pay pro rata for all services rendered up to that point before being allowed to use the results. Additionally, confidentiality clauses should ensure that the agency's internal know-how, which may be contained in documents, remains confidential with the client.
Know-How Protection for the Agency
Agile or not, agencies often bring in their own tools, templates, and experience. They don't want the client to take all this know-how with them after a short collaboration and possibly use it themselves (or with competitors) in the future without the agency. A contractual restriction on use helps here: the customer may of course use the delivered work results for their own purposes, but not, for example, pass them on to third parties or use them outside the purpose of the contract, unless this has been expressly agreed.
An example: The agency develops a special marketing concept or an analysis tool. It can stipulate in the contract that the client is only permitted to use this concept/tool as part of the joint collaboration or for a defined period. However, there are limits here; once knowledge has been transferred, it is almost impossible to control. It is important to define the agency's intellectual property (e.g., copyrighted templates, code, design systems) as such and only transfer it under license, not for sale, unless it was developed exclusively for the client.
Rights of Use to Created Content: Who Owns the Campaign?
Similar to influencer contracts, the question of usage rights arises with agency services. For example, if an agency creates graphics, advertising copy, videos, slogans, or software (such as a website) for the client, the creative creators (often the agency's employees) automatically acquire copyrights.
Without a special agreement, the customer may only use these works to the extent necessary, which could be interpreted narrowly in the worst case. To ensure legal certainty, the agency agreement must clearly regulate the transfer of rights to the client. Further context on this topic can be found in Chain of title in game development: building a clean chain of rights.
Comprehensive Rights for the Client
In advertising and IT contracts, it is customary for the client to receive all necessary rights of use to the work results, usually exclusively, for an unlimited period of time and territory. This is ideal for the customer: they can use the content as desired (e.g., a logo designed by the agency on all their products worldwide, without any time limit). If the customer wants to change the created materials later or use them again in other contexts, they do not have to ask anyone for permission.
There should only be exceptions where there is no other option, for example, when using licensed third-party material (e.g., stock photos with a limited license). However, the agency must point this out and, if possible, clarify in advance whether buyouts of such third-party material are possible.
Protecting the Interests of the Agency
It can still be important for agencies to reserve certain rights. On one hand, they often want to allow self-promotion, meaning they are allowed to show the campaigns created in their portfolio. A contract should therefore contain a clause such as: "The agency may use the work developed for the client to a reasonable extent as a reference for its own advertising, unless the client objects for good cause."
On the other hand, agencies often develop ideas and concepts that may not be implemented or are generic in nature. Think of a pitch presentation: the client receives many creative proposals, but only commissions a few of them in the end. Without a provision, the client could later implement the rejected ideas themselves, which the agency is reluctant to see, especially as no remuneration was paid for them.
A so-called pitch protection clause can help here: Concepts that are not commissioned remain the intellectual property of the agency. The rights of use are only transferred for services that are actually paid for. In practice, this cannot always be fully enforced, but the clause at least discourages the use of unsolicited ideas.
Employees and Freelancers
Agencies should ensure internally that they are assigned the rights to the work of their employees and subcontractors to be able to pass them on to the client at all. As a rule, employees create works as part of their job, and under German copyright law, the author (employee) is initially entitled to the right of use, unless otherwise agreed. However, it is customary to stipulate in the employment contract that the results of the work are transferred to the employer.
The same applies to freelancers: the agency contract with the client should stipulate that if third parties are involved, the agency is responsible for ensuring that all necessary rights have been acquired. An indemnification clause should also be included: If a third party (such as a photographer or musician) asserts claims due to unlicensed use, the agency must indemnify the client against such claims and bear the damages. To avoid such cases, thorough rights clearance before publication is essential.
Liability, Warranty, and Legal Obligation to Perform
Even if it is not explicitly stated in the title, liability issues play an important role in every agency contract, especially in the context of agile collaboration, where it is not always clear what is considered defective.
Warranty for Work Services
If the agency provides a work (e.g., developed website, printed advertising material, finished video), it is liable like a manufacturer for material defects and defects of title. This means that the client can demand rectification if something does not correspond to the contract, such as technical errors, incorrect product information in the text, or non-compliance with specifications. In the case of agile acceptance, every sprint output should be checked so that defects are noticed early on.
If a work is still faulty in the end and rectification fails, the client can reduce payment or demand compensation. Agencies often try to contractually limit the warranty, which is possible to a certain extent in the B2B sector (as long as there is no fraudulent intent or gross negligence). Clauses that limit liability to intentional and grossly negligent breaches of duty and only allow liability for cardinal obligations in the case of simple negligence are typical. Additionally, maximum liability amounts are often agreed (e.g., a maximum in the amount of the order volume). Such clauses must be carefully formulated to withstand the scrutiny of general terms and conditions.
Liability for Consulting and Services
In a pure service contract (e.g., strategy consulting without guaranteed success), the agency does not owe any success but is, of course, liable if it breaches obligations. If, for example, the agency gives legally incorrect advice (says you don't need labeling XY, even though it is necessary), it can be liable for any resulting damages. Therefore, agencies that also advise on legal or regulatory aspects should always emphasize that they do not provide legal advice in the narrower sense and, in case of doubt, consult a lawyer. In addition, professional liability insurance is advisable, which can be mentioned in the contract.
Indemnification in Favor of the Client
The client often demands that the agency indemnifies it against certain liability risks. For example: "The agency guarantees that the content it supplies does not infringe the rights of third parties and indemnifies the client against all third-party claims for such infringements." This protects the customer, for example, if a stock photo did not have a valid license or a text was plagiarized. Such assurances mean a lot of responsibility for the agency; it has to work very carefully so as not to provoke any claims. However, they are customary in the industry and ultimately fair: the agency controls the creation of the content, so it should also be responsible for ensuring that everything is clean (insofar as this is within its control).
Agility vs. Legal Certainty – Conclusion: A well-drafted agency agreement 2.0 is flexible in the provision of services, but precise in terms of rights and obligations. The trick is to leave enough leeway for creative changes without creating ambiguity about the subject matter of the contract. This balancing act requires clear language: where commitment is necessary (e.g., deadlines, confidentiality, payments, rights), it must also be formulated. Where openness is desired (scope of services, brainstorming), a process should be described instead of a result. This makes flexibility contractually controllable.
Current Trends: AI in Agency Work and New Technologies
Finally, we must mention current tech trends that influence agency contracts. Similar to influencers, agencies are also increasingly using AI tools, whether for automated copywriting, programmatic advertising, or data analysis. This can increase efficiency and output but has legal implications: If a campaign idea was co-developed by ChatGPT, the question of authorship arises.
Agencies should maintain processes that are as transparent as possible and disclose to their clients if AI has made a significant contribution, especially if this could lead to licensing issues. A contract could stipulate that the use of AI is permitted, but that the agency is responsible for ensuring that no unlawful content is used. The handling of new content formats such as NFTs, metaverse events, or virtual reality advertising could also be addressed in modern contracts. This would involve new types of rights (e.g., to 3D models or tokens) and unfamiliar liability issues (e.g., liability for smart contracts in NFT marketing).
These topics are still niche, but future-oriented agency contracts leave room to include such technologies without having to renegotiate everything from scratch.
Data Protection & Data Ownership
As marketing is increasingly data-driven, progressive contracts also regulate who owns the data collected in the project and who is allowed to use it. If agency campaigns collect leads, for example, it should be clear that this data belongs to the client. At the same time, the agency must comply with the GDPR and, if necessary, act as a processor. A DPA (data processing agreement) can be part of the contract as an annex to provide clarity here.
Conclusion
In conclusion, drafting contracts in 2025 has become more complex in both the influencer and agency sectors, but also more important than ever. Well-drafted contracts create trust, minimize legal risks, and lay the foundation for successful business relationships. Companies and agencies would do well to update these contracts regularly to account for new developments, from changes in the law to technology trends.
By doing so, you position yourself as a legally secure and innovative player in the dynamic environment of digital marketing. Every hour invested in contract negotiations pays off later, preventing expensive conflicts and allowing you to focus on what truly matters: creative, effective campaigns in collaboration with satisfied influencers and partner agencies.