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| Lydia Ehisuoria Ohonsi, Esq. |
An indemnity clause in a contract is a provision where one party agrees to compensate the other for certain costs, damages, or liabilities that may arise due to specified events or actions related to the contract. It essentially outlines who is responsible for legal claims or losses that occur in connection with the contractual relationship, serving as a protective shield for the parties involved.
In a brand and influencer contract, an indemnity clause is important because it protects the influencer and the brand from legal and financial risks that could arise during their partnership. For example, if an influencer faces a lawsuit over copyright infringement or trademark issues related to the content they create or promote for the brand, the indemnity clause specifies whether the brand or the influencer bears responsibility for legal fees, settlements, or damages. Usually, the brand indemnifies the influencer, meaning the brand agrees to defend and cover any losses the influencer incurs due to claims connected to the brand's products or promotion.
This clause clarifies responsibilities, minimises potential disputes, and helps preserve the professional relationship between the influencer and the brand. It ensures that if legal problems arise, they are managed in a structured way without unfairly burdening one party. Indemnification safeguards influencers from being personally liable for legal issues tied to the brand's products or marketing directives, as illustrated by cases where influencers have been sued over trademark claims due to brand instructions, and a strong indemnity clause would have protected them from bearing the full legal burden. Overall, an indemnity clause is a vital contractual element that promotes trust and security, allowing both influencers and brands to collaborate with clear expectations about risk and liability.
Why It Matters
Indemnity clauses allocate risk between parties. They determine who pays when something goes wrong, which can mean the difference between a minor inconvenience and financial devastation. The clause essentially shifts the burden of legal and financial consequences from one party to another.
These clauses can be one-sided (only protecting one party) or mutual (protecting both parties). The specific language determines the scope and limitations of protection.
The indemnity clause in a brand-influencer agreement typically protects both parties, but in different ways depending on how it is structured.
HOW IT PROTECTS THE BRAND:
The brand is usually protected when the influencer creates problems through their actions. For example:
1. Copyright infringement - If the influencer uses music, images, or other content they don't have rights to, and this leads to a lawsuit, the influencer would be responsible for legal costs and damages;
2. False claims - If the influencer makes unauthorised or misleading statements about the product that lead to consumer complaints or regulatory issues;
3. Defamation - If the influencer's content defames a third party;
4. Breach of platform rules - If the influencer violates social media platform guidelines in ways that create liability;
5. Undisclosed conflicts - If the influencer fails to disclose that they don't actually use the product or have conflicts of interest.
HOW IT PROTECTS THE INFLUENCER:
A well-negotiated agreement should also include reciprocal indemnification protecting the influencer:
1. Product liability - If the brand's product is defective or harmful and causes injury to the influencer or their audience;
2. Brand misrepresentation - If the brand provided false information about the product that the influencer shared in good faith;
3. Brand's IP issues - If the brand didn't actually own the trademarks or materials they asked the influencer to promote;
4. Brand's regulatory violations - If the brand's business practices violate laws, it exposes the influencer to liability.
Important Considerations
Many standard brand contracts are one-sided, only protecting the brand. Influencers (especially those with representation) should negotiate for mutual indemnification to ensure they are also protected from the brand's potential misconduct. The clause should clearly specify what each party is responsible for and include provisions about who controls the defence of any claims.
Here's a typical mutual indemnification clause for a brand-influencer agreement.
MUTUAL INDEMNIFICATION CLAUSE
(A) Influencer's Indemnification of Brand.
Influencer agrees to indemnify, defend, and hold harmless Brand, its parent companies, subsidiaries, affiliates, and their respective officers, directors, employees, agents, and representatives (collectively, the "Brand Parties") from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or relating to:
(i) Any breach or alleged breach by Influencer of any representation, warranty, or obligation under this Agreement;
(ii) Any content created or posted by Influencer that infringes or allegedly infringes upon any intellectual property rights, privacy rights, publicity rights, or other rights of any third party;
(iii) Any defamatory, libellous, or unlawful content posted by Influencer in connection with this Agreement;
(iv) Influencer's failure to comply with guidelines, platform terms of service, or other applicable laws and regulations;
(v) Any negligent acts or willful misconduct by Influencer in performing services under this Agreement.
(B) Brand's Indemnification of Influencer.
Brand agrees to indemnify, defend, and hold harmless Influencer, and Influencer's agents and representatives (collectively, the "Influencer Parties") from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees and court costs) arising out of or relating to:
(i) Any breach or alleged breach by Brand of any representation, warranty, or obligation under this Agreement;
(ii) Any defect in Brand's products or services that causes injury or harm to Influencer or third parties;
(iii) Brand's infringement or alleged infringement of any intellectual property rights, privacy rights, publicity rights, or other rights of any third party relating to Brand's products, trademarks, or materials provided to Influencer;
(iv) Brand's use of content created by Influencer beyond the scope of the license granted in this Agreement;
(v) Any negligent acts or willful misconduct by Brand in connection with this Agreement.
(C) Indemnification Procedures.
The party seeking indemnification (the "Indemnified Party") shall:
(i) Promptly notify the indemnifying party (the "Indemnifying Party") in writing of any claim for which indemnification is sought;
(ii) Provide reasonable cooperation in the defence of such claim at the Indemnifying Party's expense;
(iii) Allow the Indemnifying Party to control the defence and settlement of such claim, provided that no settlement shall be made without the Indemnified Party's prior written consent (not to be unreasonably withheld) if such settlement requires any action or admission by the Indemnified Party or affects the Indemnified Party's rights or interests.
(D) Limitations.
Neither party shall be obligated to indemnify the other party for any claims arising from the Indemnified Party's own negligence, willful misconduct, or breach of this Agreement.
This mutual clause balances protection for both parties. Influencers with legal representation may negotiate for additional protections or limitations on liability depending on their bargaining position and the specifics of the collaboration.
In the evolving landscape of influencer marketing, indemnity clauses serve as crucial legal safeguards that protect both brands and influencers from potential liabilities. By clearly defining responsibility for legal claims and losses, these clauses foster trust and create a structured framework for collaboration. Understanding and negotiating indemnity provisions empowers influencers and brands to work together confidently while minimising risk, ultimately ensuring their partnerships are both creative and legally secure. Recognising indemnity not as a mere formality but as a vital shield can make all the difference in sustaining successful influencer-brand relationships.
October, 2025.
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