KSK levy obligation for agencies and marketers in the influencer sector: What applies and what does not?

Numerous articles on the topic of influencers have already been published on this blog. The search function can be used to find in-depth articles on various aspects of this industry. Particularly noteworthy are two articles on the Künstlersozialkasse (KSK), which provide an in-depth insight into the special features of social security law for creative professionals.

Following on from these basic principles, this article addresses the question of which services that agencies or marketers pass on to influencers are subject to the KSK levy and which are not. A topic of considerable practical relevance for all players in the field of influencer marketing.

Artistic performances and their tax liability

According to Section 24 (1) SGB IV, there is an obligation to pay the artists’ social security contribution if companies award contracts to self-employed artists or publicists. According to Section 2 KSVG, artistic activities include, in particular, the performing arts, visual arts and work as a designer – a definition that covers many services provided by influencers.

These include, for example:

• Production of videos, photos or podcasts with independent creative design,
• Creation of editorial contributions,
• Staging on social media platforms that goes beyond a purely functional presentation.

If an agency commissions an influencer to produce a creative contribution, it can regularly be assumed that an artists’ social security contribution will be incurred. This additional charge of currently 5.0% (as of 2025) of the fee must be borne by the agency. The purpose of the levy is to ensure the social security of self-employed artists and thus make an important contribution to promoting the cultural landscape.

This means for agencies: When planning the budget, it is important to consider whether and to what extent additional fees will be charged.

Affiliate campaigns: When there is no obligation to pay

Affiliate marketing, on the other hand, is not classified as an artistic activity in the traditional sense. If an influencer is only commissioned to recommend or link to a product or service without providing an independent creative service, this activity is generally not subject to the obligation to pay a fee.

The decisive factor here is the actual service content:

• Pure product recommendations or placements without artistic design are not subject to KSK.
• The mere provision of advertising space or links is also not subject to the artists’ social security contribution.

However, this clear demarcation only appears to offer certainty. As soon as an influencer introduces their own creative elements as part of an affiliate campaign – for example through elaborately produced videos, innovative narrative techniques or artistic image design – the activity may qualify as an artistic achievement.

Gray areas and pitfalls

The distinction between artistic achievement and mere advertising is not always clear. The boundaries are becoming increasingly blurred, especially in influencer marketing. Case law and the administrative opinion of the Künstlersozialkasse apply a functional standard for the assessment: The decisive factor is whether the activity has essentially creative, creative elements.

Typical gray areas arise, for example, with:

• elaborately staged “unboxing” videos,
• self-produced pieces of music as part of advertising cooperations,
• stylistically specially designed product presentations.

In cases of doubt, the KSK can carry out its own assessment, which can also lead to retroactive claims. Even a minor artistic character is sufficient to justify the obligation to pay the fee.

It should be noted in particular that, in accordance with Section 25 (1) sentence 1 KSVG, the obligation to pay the levy exists regardless of whether the company was aware of the classification as an artistic performance. Even acting in good faith does not protect against additional claims.

Technological developments and new forms of creativity

Technological progress is increasingly giving rise to new forms of media production. Virtual reality, augmented reality and the use of artificial intelligence in the content sector are creating new forms of creative expression. Here, too, the following applies: where independent creative services are provided, a duty to pay royalties will have to be examined regularly.

Agencies that design innovative campaigns in particular should check at an early stage whether the commissioned services potentially qualify as artistic.

Practical recommendations for agencies and marketers

To avoid legal risks and unexpected financial burdens, companies should take the following measures:

1. clearly formulate the service description

A clear description of the commissioned services should be ensured at the contract drafting stage. Creative elements should be explicitly named or excluded.

2. document and archive contracts

All agreements should be set out in writing. Important aspects:

• Content and scope of the service,
• Expense description,
• Remuneration components broken down into artistic and non-artistic performance.

Proper documentation can be decisive in the event of a KSK audit.

3. separate billing of ancillary costs

Travel expenses, material costs or license fees that do not constitute artistic services should be reported separately. This can prevent these amounts from being mistakenly subject to the artists’ social security contribution.

4. obtain legal advice at an early stage

A legal review by a lawyer experienced in media and social security law is particularly recommended for new campaigns or unclear service descriptions. This creates planning security and minimizes later risks.

Conclusion

The distinction between artistic and non-artistic services in the field of influencer marketing is complex and requires a careful case-by-case assessment. Agencies and marketers are well advised not to underestimate the issue. Legally compliant contract drafting, precise documentation and early legal advice form the basis for meeting the requirements of the Artists’ Social Security Fund and avoiding unnecessary financial burdens.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.