Brand collaborations have become a common way for businesses to expand their reach and access new audiences. Collaborations involve two businesses launching a co-branded product, companies working with an influencer, or two brands partnering for an event or promotional campaign.
Although these arrangements can create valuable commercial opportunities – they can also raise important legal and practical issues. Issues may arise about payment, ownership of content, use of intellectual property, confidentiality, exclusivity and what happens if one party does not meet its obligations. A Brand Collaboration Agreement gives the parties a practical framework for dealing with those issues before the collaboration begins.
What Should a Brand Collaboration Agreement Cover?
The agreement should first define the scope of the collaboration. It should identify what the parties are working together to achieve and what each party is expected to contribute. This may include; producing a particular product, creating promotional content, organising an event or running a joint marketing campaign.
Key deadlines, deliverables and approval requirements also need to be recorded. For example, if a business engages a creator to promote a product, the document can specify; (1) how many posts/videos are required, (2) when they must be published and (3) whether the business must approve the content before it goes live. Defining the scope of the arrangement can reduce the risk of litigation.
Payment and Commercial Terms
The parties should also agree on how the commercial side of the collaboration will operate. Different arrangements may involve different payment structures. One party may receive a fixed fee, the parties may agree to share revenue, or both businesses may contribute towards costs.
The document should set out how payments are calculated, when they are due and which party is responsible for expenses such as advertising, production, shipping or event costs. Clear commercial terms can help avoid disagreements about costs or revenue once the project has started.
Who Owns the Content and Intellectual Property?
Intellectual property is often one of the most important issues in a brand collaboration. A collaboration can result in the creation of photographs, videos, artwork, designs, packaging, slogans, marketing material or even a new product.
The agreement should identify who owns the material created during the collaboration.
It is important to distinguish between (1) IP that each party already owns, and (2) the IP created because of collaboration.
For example, a business will generally want to retain ownership of its existing name, logo and trademarks. The parties may then decide who will own photographs, designs or other content created specifically for the campaign. In some cases, one party may own the new content while granting the other party a licence to use it for agreed purposes.
For example, a photographer or creator may own the content they produce but allow the business to use it on its website or social media for a particular period. Resolving ownership at the beginning helps prevent later disputes about who controls the material.
Use of Brand Names, Logos and Content
A collaboration may require each party to use the other party’s branding. However, agreeing to collaborate does not give either business unlimited permission to use the other party’s name, logo or content. Rather than deciding ownership, these provisions deal with the practical terms of use: where branding can appear, the purpose for which it can be used and whether approval is required before material is published.
For example, a business may allow its logo to appear on a joint campaign but require written approval before the logo is used in paid advertisements or altered in any way. The parties may also specify any brand guidelines and the period for which the permission applies. These controls help each business protect how its brand is presented to the public and preserve the reputation it has built.
Exclusivity and Working with Competitors
Some collaborations also involve exclusivity arrangements. An exclusivity clause may restrict one party from entering similar arrangements with competing businesses for a particular period.
For example, a fitness brand may not want an influencer promoting a competing product while they are being paid to promote its own products. From a business perspective, exclusivity can provide valuable protection, but the restriction should be considered carefully. A broad clause may prevent a party from taking advantage of other commercial opportunities. The parties should therefore define the restricted activities, the competitors or industries covered and the period for which the restriction applies.
Confidentiality
During a collaboration, the parties may share information that is not publicly available. This could include details about future product launches, pricing, marketing strategies, customer information or commercial plans.
A confidentiality clause can require the parties to keep certain information private and restrict the purposes for which that information may be used. This can be especially important where the collaboration begins before a new product or campaign has been publicly announced. Protecting confidential information can help reduce the risk of commercially sensitive information being disclosed or used for an unrelated purpose.
What Happens if the Collaboration Does Not Work Out?
Even where the parties begin with a strong commercial relationship, circumstances can change. One party may fail to meet a deadline, not provide the agreed products or services, or decide that it no longer wishes to continue with the collaboration. A well-drafted agreement should explain when and how the arrangement may be terminated, including any notice or opportunity to remedy a problem.
The parties should also decide what happens after termination. This may include outstanding payments, confidential information, content that has already been created and whether existing promotional material must be removed. For example, the agreement can address whether a business may continue using campaign photographs or whether a creator must remove sponsored content. Dealing with these issues in advance gives both parties a clearer process to follow if the relationship ends.
Why a Written Agreement Matters
Some business collaborations begin informally through emails, messages or conversations. Although this may be convenient at the start, problems can arise if the parties later disagree about what was originally promised. A written Brand Collaboration Agreement provides a single reference point for the commercial arrangement.
Rather than replacing trust, it records the decisions the parties have made and creates a process for managing changes or unexpected issues. For businesses investing their time, money and reputation into a collaboration, that clarity can make the relationship easier to manage.
FREQUENTLY ASKED QUESTIONS
- Do we need a written agreement for a short or informal collaboration?
Even a short campaign can involve payment, approval rights or use of a brand name. A concise written agreement can record the key decisions and reduce the risk that the parties have different expectations.
- Who owns content created during the collaboration?
That depends on what the parties agree. It is important to identify whether the content is jointly owned, owned by one party or owned by a creator who grants the businesses a licence to use it.
- Can a business continue using collaboration content after the agreement ends?
Only if the agreement permits it. The parties should consider the permitted channels, any time limit, whether old posts may remain online and whether the content may be used in paid advertising.
- Can we change the collaboration after the agreement has been signed?
Yes, but changes should be recorded in writing. This is particularly useful if the parties change the campaign scope, budget, deadlines or content requirements after the project has started.
- What happens if one party fails to meet its obligations?
The agreement can set out a practical process, such as notifying the other party, allowing time to remedy the issue and then considering remedies such as withholding payment or ending the arrangement if the problem is not resolved.
- What about influencer and sponsored collaborations?
Businesses should also consider their advertising obligations. Paid or incentivised promotional content should be clearly disclosed, and advertising claims should not be misleading or deceptive.
HOW OPENLEGAL CAN HELP
OpenLegal can assist businesses in preparing, reviewing and negotiating Brand Collaboration Agreements. This can include clarifying each party’s obligations, protecting intellectual property and addressing commercial risks before the collaboration begins.
If you are considering collaborating with another business, brand or creator, OpenLegal offers a free 15-minute consultation to discuss your matter and how we may be able to assist.
Visit openlegal.com.au to learn more.
Shatik Dhawan | Legal Intern
This article provides general information only and does not constitute legal advice. The terms required for a Brand Collaboration Agreement will depend on the circumstances of each arrangement.
