Modern contract design 2025 in the influencer and agency business

Influencer marketing and agency collaborations have gained enormously in importance in recent years. With new technologies, global networking and changing business models, both creator contracts and agency contracts are facing new 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? In the following, you will receive a well-founded overview – based on current German law (and relevant EU law) – which also addresses important trends such as artificial intelligence (AI), deepfakes and new working models. The aim is to present practical solutions for advertisers, influencers and agencies in order 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 contracts. The most important areas of regulation and pitfalls of a creator contract are highlighted below.

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 that both parties know what is expected: What content will be published on which platforms, how many posts or stories will be placed and when they should go online. Qualitative specifications also belong here – such as briefing specifications for the brand, desired messages, hashtags or design guidelines. It is important to set a time frame or posting period. Although influencers often enjoy a certain degree of freedom to choose the exact time of a post themselves, 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. In any case, deadlines and milestones should be clear in order to avoid misunderstandings.

Obligations of the influencer: In return for the 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 be specified whether and how the influencer should respond to comments or otherwise 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 the legal requirements (UWG and media law) (e.g. 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 that the client should not underestimate. It may therefore make sense to provide for a contractual penalty for breaches of labeling obligations in order to encourage the influencer to comply. 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 obligations to cooperate. It is common, for example, 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 whether the influencer may keep them. The advertising client should also provide the creator with all information, logos, hashtags, etc. required for the creation of the post in good time. Last but not least, the client must pay the agreed remuneration on time – we will go into this 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 and receive a fee in return. This can be agreed as a traditional flat fee (e.g. 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 therefore 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, there are modern models such as reach contracts or performance-based remuneration. 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). Here, for example, a basic fee with a bonus per 1,000 views can be agreed. Advantage: The influencer has an incentive to maximize performance; the advertiser’s risk is reduced as they pay less if the response is low. However, this requires reliable metrics and a clear definition of how success is measured (screenshot 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 – e.g. 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 in addition to or instead of a 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 alone). If, in exceptional cases, no remuneration is paid at all – for example because it is a pure product test without a fee – this should also be recorded in writing (“cooperation without monetary remuneration – product is provided for testing purposes”). Background: On the one hand, there is otherwise ambiguity, on the other hand, you want to document that the post could possibly 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 a 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 are the rights of use to the content created by the influencer (photos, videos, texts, etc.). In influencer marketing, photos or clips are often produced that not only appear on the creator’s channel, but are also intended for further use by the advertising company – for example on its 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 that are absolutely necessary for the purpose of the contract. In case of doubt, this could only include the one-time posting by the influencer himself – 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”, i.e. the comprehensive, exclusive right to use the content. This includes, for example, the right to use the influencer’s photos/videos for an unlimited period of time, worldwide, on 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 also use the campaign content freely in the future without having to ask or pay again. For the influencer, however, it means that they largely relinquish control over their content; they should demand correspondingly higher remuneration for this. Tip: From the influencer’s point of view, it makes sense to check whether the scope of the transfer of rights is really 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. In this way, your own brand remains protected and it is possible to negotiate an additional fee for further uses at a later date.

In any case, the scope of the rights granted must be described in detail in the contract – which media, which period, exclusivity yes/no, right to edit the content, etc. The right to edit is particularly tricky: Without consent, a company would not be allowed to subsequently alter or crop the photo provided by the influencer, for example, if this affects the influencer’s personal rights. The influencer as the author or person depicted has a right to their own image and to protection against distortion. Contracts should therefore regulate the extent to which the client may make changes. From the company’s point of view, it should at least be permitted to adjust the size/crop or use short excerpts from a video as long as the character is not distorted. In the case of 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 is the relationship between customer control and the creative freedom of the influencer. On the 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 knows what tone will resonate. Excessive regulation can make posts appear stiff and untrustworthy.

Solution: Clear briefing and approval processes should be agreed in the contract. For example, it can be stipulated that the influencer submits the draft post to the client for approval before publication. The client may then check whether trademark regulations, content requests and legal requirements (labeling, no misleading statements, no prohibited content) have been complied with. However, this check should be carried out within short deadlines so as not to slow down the creative process too much. In addition, the influencer must be left to translate the message into their own language – because they alone are able to address their followers authentically. In practical terms, this means that 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.), but the creator should be allowed to formulate and design independently within this framework. Both sides should see each other as equal partners: The company provides the core content points, the influencer contributes the creativity and reach.

Exclusivity and non-compete clauses: Control also includes the wish of many advertising clients that their influencer does not advertise for competing brands at the same time. 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 live from advertising contracts cannot economically afford to be tied down for too long. Courts take a critical view of excessively long commitments: 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 may be agreed for 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 that protects 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 finding its way into 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 have no human author – so they could be free of copyright protection. This means that, in theory, 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) – in which case there is even a risk of copyright infringement. Contract tip: The influencer should ensure that 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, as if it were a normal copyright 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 according to which AI-generated deepfake content must be labeled if it simulates a deceptively genuine human appearance. Contracts should therefore stipulate that the influencer discloses the use of such techniques. In addition, 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 himself 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 end of the collaboration, this would seriously violate personal rights – resulting in 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 the 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 quickly becoming reality with technology – forward-looking contractual clauses create 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, which becomes particularly relevant when an influencer works very closely and exclusively for a client.

Avoid bogus self-employment: In Germany, it is primarily the German Pension Insurance (DRV) that checks whether someone is really self-employed or actually employed. Typical criteria are: 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 do not operate independently on the market? Does he use his own work equipment or that of the client (e.g. office at the client’s premises)? An 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.

The Consequences The consequences of such a misclassification are drastic: If the DRV or a social court subsequently establishes an employment relationship, the alleged client all Social security contributions back payments – employer and Employee contribution! This can be claimed retroactively for up to 4 years (or even up to 30 years if intentional). In addition, the person responsible may be liable to prosecution (criminal offense of withholding social security contributions, § 266a StGB). The client would also be subject to obligations under labor law: 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 safeguard: 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 is 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 of time, but you do not want to choose permanent employment. 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 in order to cover pension and accident insurance. Of course, permanent employment also has disadvantages (non-wage labor costs, less flexibility in the event of 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 is used for the social insurance of freelance 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 in order 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 that 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 of an exploitation of name rights – but you 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 who perform in Germany – but it also applies to “performances” that are exploited in Germany. An influencer posting that is made for a German audience and generates income here can be classified as such a performance. Consequence: The German client must pay e.g. 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 an all-round view of the law and taxes. For international campaigns, it is therefore advisable to also include a choice of law clause (e.g. German law) and a jurisdiction agreement or arbitration clause so that it is clear where the dispute will take place in the event of an emergency.

Last but not least, data protection aspects need to be clarified: Influencers sometimes receive access to personal data (for example, if the advertiser sends them 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 (in which case they are responsible for their follower data) – but 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 in view of 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, taking into account current developments (such as AI), protects both parties from unpleasant surprises and lays the foundation for a 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 in which the focus is on flexibility and reacting quickly to trends. 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 calls up less work in one month, the question arises as to 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 in order 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 have 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: it fits well with the ongoing collaboration; the disadvantage: 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 that 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 – e.g. a certain number of leads, an increase in the number of followers by X%, click rates, conversion rates, etc. These goals are used for joint alignment and success monitoring. However, it is important to embed them properly in legal terms so as not to make any unwanted promises of liability.

Differentiation: target vs. guarantee: A tricky point is the question of whether the agency owes the achievement of these KPIs as 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 have a very strict success criterion, failure to meet which could constitute a breach of contract. In legal terms, this would be a contract for work and services with an owed success, and 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 approx. 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 therefore clear that the agency must make an effort (-> 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. bonus-malus system). A bonus creates an incentive for the agency to excel without the client automatically being left out in the cold in the event of failure – after all, they will then pay less. However, these models must remain within the limits of the 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: In order to monitor targets, the contract should stipulate reporting and meeting obligations. E.g.: monthly reporting of the most important KPIs, 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 that the agency has fulfilled its obligations – or not. In the event of a dispute, a complete log of measures and results can be worth its weight in gold.

Agile project structure and change management in contracts

Many agencies today work according to agile methods – be it 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 that is fully defined at the start of the contract. In agile projects, however, requirements are refined or changed along the way.

Contractual flexibility: To make this possible, 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. This 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, for example, 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 in order 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. In addition, 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 of time. However, there are limits here – once knowledge has been transferred, it is almost impossible to control it. 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.

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: he can use the content as he wishes (e.g. a logo designed by the agency on all his products worldwide, without any time limit). If the customer wants to change the created materials later or use them again in other contexts, he does 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.

protect the interests of the agency: It can still be important for agencies to reserve certain rights. On the one hand, they often want to allow self-promotion – i.e. be 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 in order 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) does assert 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. In addition, maximum liability amounts are often agreed (e.g. maximum in the amount of the order volume). Such clauses must be carefully formulated in order 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, I would like to 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.

In conclusion, it can be said that 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 take account of new developments (from changes in the law to technology trends). In this way, 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, as it prevents expensive conflicts and leaves you free to focus on what really matters: creative, effective campaigns in collaboration with satisfied influencers and partner agencies.