Unjustified Termination and Claim for Damages with Influencer Agencies
The premature transfer of influencers to other agencies poses a significant problem for influencer agencies. The acquisition of clients and the planning of advertising campaigns can take several months. During this time, agencies often invest considerable resources. If an influencer then resigns without justification shortly before or during a campaign, this can lead to considerable financial losses for the agency.
Commission-based Cooperation and Sunset Clauses
In many cases, influencer agencies work on a commission basis. This means they receive a percentage of the income from advertising campaigns. If an influencer changes prematurely, the agency not only loses the expected commission but also the investment in customer acquisition and campaign planning. Even if the contract contains sunset clauses that guarantee a commission for a certain period after the contract's end, these often do not go far enough to compensate for the agency's losses.
Claims for Damages According to § 280 BGB
One way for agencies to protect themselves against influencers who terminate their contracts without justification is to assert claims for damages. The first step involves checking whether the termination was truly unjustified. This means determining if the influencer ended the contract prematurely without good cause. Good cause could exist, for example, if the agency breaches its contractual obligations or if the influencer can no longer provide the agreed services for personal reasons.
If there is no justification for termination, the agency may demand compensation in accordance with Section 280 BGB. This includes the loss of profit from planned advertising campaigns and useless expenses for customer acquisition and campaign planning. However, the influencer is only liable if they are responsible for the breach of contract, meaning they acted intentionally or negligently.
Liability for Culpa in Contrahendo (c.i.c.)
In addition to claims for damages under Section 280 BGB, the influencer may also be liable for culpa in contrahendo (c.i.c.). This applies if the influencer did not intend to fulfill the contract until its agreed end when it was concluded. It also applies if the influencer culpably raised false expectations with the agency during the contract term, on which the agency based its dispositions.
Contract Drafting and Documentation
To effectively assert claims for damages, influencer agencies should carefully draft their contracts. They should particularly include provisions for notice periods, sunset clauses, and contractual penalties in the event of unjustified termination by the influencer. For robust agreements, consider insights into modern contract design in the influencer and agency business. Detailed documentation of expenses for customer acquisition and campaign planning can also help quantify the damage incurred in a dispute.
Conclusion
The premature change of influencers presents agencies with major challenges. To protect themselves against financial losses, agencies should check whether an unjustified termination triggers claims for damages. In particular, the provisions of Section 280 BGB and c.i.c. must be observed.
Careful contract drafting and documentation can make it easier to enforce claims. Nevertheless, asserting claims for damages often remains a difficult undertaking. Agencies are therefore well advised to minimize the risk of a premature change by carefully selecting influencers and building long-term relationships.