Using Outside Content Creators?

WHAT SHOULD YOUR AGREEMENT ACTUALLY COVER?

You have found someone to create content for your business. Maybe they are a photographer, videographer, social media manager, influencer, copywriter or someone who seems to have an extraordinary knack for making Instagram Reels look effortless. You agree on a price, perhaps exchange a few emails or DMs, and off you go. But who owns what they create? Can you change it? Can they reuse it? Can they create similar content for your competitor? What if they use somebody else’s music or images? What if they use AI? Who is responsible for claims they make about your products? And what happens to all that content when the relationship ends?

The answer to those questions is not necessarily the same for every business or every creator.

That is why a Content Creator Agreement is about much more than stating the fee and the number of posts to be delivered. Depending on the arrangement, copyright law, moral rights, consumer law, privacy, confidentiality, trade marks, advertising rules and even industry-specific regulation may come into play. A photographer taking product photographs presents different issues from an influencer promoting a skincare product to 200,000 followers. A social media manager who has your passwords and posts directly to your accounts raises different questions again.

The trick is working out which issues matter before something goes wrong.

I PAID FOR THE CONTENT. IS IT MINE?

This is often the first question.

Businesses understandably assume that if they pay someone to make photographs, videos, graphics or written content, they must own what they have paid for. Australian copyright law is more complicated than that. Section 35 of the Copyright Act 1968 (Cth) contains rules about the ownership of copyright in original works, including different rules and exceptions depending on matters such as employment and particular types of commissioned works.

That means the answer can depend on who created the material, what type of material it is, the relationship between the parties and what was agreed.

It can become even more complicated where one piece of content contains several different elements. A thirty-second Reel might contain video footage, photographs, written captions, music, graphics, animation and perhaps pre-existing material belonging to someone else. There may be different rights sitting within the one piece of content.

This is one reason businesses should be wary of assuming that paying an invoice answers the copyright question.

A lawyer reviewing the arrangement can look at what is actually being created and determine whether ownership needs to be addressed, whether a licence may be more appropriate and what rights the business actually needs.

DO YOU NEED TO OWN IT? OR DO YOU JUST NEED THE RIGHT TO USE IT?

These are not necessarily the same thing.

Sometimes a business may have good commercial reasons for wanting ownership of copyright in particular material. In another arrangement, ownership might be less important than having sufficiently broad permission to use the content in the ways the business actually needs.

This is where questions start multiplying. Can you use the photographs only on Instagram, or also on your website? Can you put them in paid advertisements? Can you use them on packaging? Can another marketing agency use them for you? Can you alter them? Can you continue using them in five years? Can you use them overseas?

The answers depend on the terms of the arrangement.

There are also legal formalities to consider. Section 196 of the Copyright Act 1968 (Cth), for example, deals with assignments of copyright and includes requirements concerning assignments being in writing and signed.

This is why simply inserting the words “all IP belongs to the client” into an agreement may not be the end of the analysis. The lawyer drafting the agreement needs to understand what is being created and what the business actually wants to be able to do with it.

WHAT CAN THE CREATOR DO WITH THE CONTENT?

There is another side to the equation.

Creators often want to show their work. A photographer may want the campaign on their website. A videographer may want to include it in a showreel. A social media creator may want to post it to Instagram as an example of their work.

That may be perfectly acceptable to the business — or it may not be.

What if the campaign has not launched yet? What if the photographs reveal a confidential new product? What if the creator later works for your biggest competitor? What if the creator wants to reuse elements of the campaign rather than merely show examples of the finished work?

There is no universal answer to these questions.

The important thing is recognising that ownership, portfolio use, confidentiality, exclusivity and competitor restrictions are different issues. An agreement can be drafted to reflect the commercial arrangement the parties actually intend, but somebody first needs to ask the questions.

WHAT ARE YOU ACTUALLY PAYING THEM TO CREATE?

This sounds obvious. It often isn’t.

“Social media content” could mean ten edited photographs. It could mean three Reels and six Stories. It could include scripts and captions. It could mean raw footage as well as finished videos. It could include editable design files — or not.

Then there are revisions.

What happens if you hate the first version? How many changes are included? What if you change the brief? What happens if the creator needs to reshoot everything? Who chooses the music? Who approves the captions? Who actually presses “publish”?

These may sound like commercial rather than legal questions, but they often become contractual disputes.

A lawyer preparing a Content Creator Agreement should therefore understand how the relationship will work in practice rather than simply inserting generic intellectual property clauses into a template.

WHAT IF SOMEBODY ELSE’S CONTENT ENDS UP IN YOUR CONTENT?

This is an increasingly important question.

Social media encourages sharing, remixing and repurposing. A creator may find music on a platform, download an image, use stock footage, incorporate a font, adapt a template or include part of somebody else’s video.

But being able to find something online does not necessarily mean a business is entitled to use it commercially.

This raises several questions for the agreement. Who is responsible for checking the source of third-party material? What permissions or licences may be needed? What happens if the creator says they have permission and it later turns out they do not? What if the platform licence is different from the rights needed for an advertising campaign?

Again, the answers can differ depending on the content and how it will be used.

A lawyer can help identify where the risks actually lie and what protections are appropriate for the particular engagement.

AND NOW THERE IS AI

Generative AI adds another layer.

A creator may use AI to write captions, generate an image, alter a photograph, create a voice, produce music or develop part of a video. The business engaging that creator may have no idea that AI was involved.

That can raise questions about intellectual property, confidentiality and the terms applying to the particular AI service. For example, what happens if unreleased product information or confidential marketing material is uploaded into an external AI tool? What does the business know about the source of an AI-generated image? Does it matter to the brand whether the content was created by a human, by AI or by a combination of both?

Different businesses will have very different attitudes to these questions.

The point is not that every Content Creator Agreement needs to prohibit AI. Nor is it that every use of AI creates a legal problem. The point is that businesses should consider whether and how AI may be used in their particular engagement, rather than discovering afterwards that their creator and their business had completely different assumptions.

WHAT ABOUT MORAL RIGHTS?

Copyright ownership is not the only copyright issue.

Australian law also gives individual creators certain moral rights, including rights concerning attribution, false attribution and integrity of authorship. These rights are dealt with in Part IX of the Copyright Act 1968 (Cth).

Why might that matter?

Imagine that your business wants to crop a photograph, add text across it, change its colour, combine it with other material or substantially edit a video. Perhaps you want to take something originally created for Instagram and turn it into an entirely different advertisement.

The fact that a business owns or is licensed to use copyright material does not mean moral rights should simply be ignored.

Whether consents or other provisions are appropriate will depend on the circumstances, the creator, the type of content and what the business intends to do with it. This is another area where generic agreements can create a false sense of security.

WHO IS RESPONSIBLE FOR WHAT IS SAID?

This issue is sometimes overlooked because everybody is concentrating on copyright.

Social media advertising is still advertising.

The Australian Consumer Law applies to social media promotions, including a business’s own posts, paid social advertising and posts that businesses pay or incentivise influencers to make. Businesses need to consider whether claims about products and services are accurate and capable of being substantiated.

This can become particularly important when the creator writes the content.

What if they say your product is “Australian made”? What if they describe something as “sustainable”? What if they make claims about what a skincare product will do? What if they exaggerate because it makes a better Reel?

The legal risk may vary enormously depending on the business and the product being advertised. Health products, therapeutic goods, cosmetics, food, financial products and other regulated products can involve additional requirements.

This is why the agreement needs to fit the business. A content creator agreement for a fashion label may need to address different regulatory risks from one prepared for a health business.

WHAT IF YOUR CONTENT CREATOR IS ALSO AN INFLUENCER?

This can change the nature of the arrangement considerably.

Sometimes a creator simply produces material that appears on the business’s own channels. An influencer engagement may involve something quite different: the business is also paying for access to the creator’s audience and, importantly, the credibility that creator has with that audience.

That brings questions about disclosure and misleading conduct into the picture.

The ACCC has paid particular attention to influencer advertising and commercial relationships that are not adequately disclosed. In its influencer sweep, the ACCC found that 81% of the 118 influencers reviewed had posts that raised concerns about potentially misleading advertising. The most common concern was failure to adequately disclose relationships with brands.

There are therefore questions worth considering at the contract stage. Is the creator being paid? Are they receiving free products? How is the relationship disclosed? Who approves what is said? What if the creator makes a claim that the business would never have approved?

The appropriate provisions will depend on how the campaign actually works.

A CONTENT CREATOR AGREEMENT CAN ITSELF CREATE A PROBLEM

There is a particularly useful recent Australian example.

In March 2026, the ACCC announced that Tomsem Consolidated Pty Ltd, trading as PhotobookShop, had paid $39,600 following two infringement notices relating to allegedly misleading influencer reviews posted on Instagram.

What makes the matter especially relevant here is how the ACCC investigation began.

According to the ACCC, an influencer raised concerns about a written agreement presented to them which requested that they not disclose that they had been gifted a photobook in exchange for a review.

That is an important reminder that having a written agreement is not, by itself, protection.

What the agreement actually says matters.

A contract should be considered against the laws applying to the underlying advertising and commercial arrangement. A provision that appears commercially attractive may create a completely different legal problem.

WHAT ABOUT YOUR PASSWORDS, UNRELEASED PRODUCTS AND BUSINESS INFORMATION?

Some creators sit almost outside the business. Others effectively become part of the marketing team.

They may have access to Instagram passwords, unreleased campaigns, customer information, pricing strategies, photographs of products that have not launched and internal conversations about the business.

That raises questions about confidentiality, privacy and security.

What information can they keep? Can they show behind-the-scenes photographs? What happens to passwords when the engagement finishes? Can they share work before the campaign launches? What if confidential information happens to appear in the background of a photograph?

The level of protection required will depend heavily on what access the creator actually has.

A photographer engaged for two hours to take photographs of cupcakes is plainly not the same risk as a social media manager who has access to the business’s accounts every day for two years.

The agreement should reflect that difference.

WHAT HAPPENS WHEN YOU STOP WORKING TOGETHER?

This is when assumptions tend to surface.

The business may think it can continue using everything forever. The creator may think their permission ended when the engagement ended. The business may expect all raw files to be handed over. The creator may believe those files were never included.

Who is right?

It depends.

There may be questions about ongoing licences, copyright ownership, portfolio rights, confidentiality, account access, unpaid fees, unfinished work and material that has already been scheduled for publication.

This is why termination provisions should not simply say that either party can end the agreement on seven days’ notice. Someone needs to consider what happens after those seven days.

The end of a creative relationship is generally a much easier time if those questions were considered at the beginning.

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LEGAL ISSUES THAT MAY NEED TO BE CONSIDERED

Copyright Act 1968 (Cth)
Copyright may exist in photographs, videos, graphics, written copy and other material. Section 35 contains important rules concerning ownership of copyright in original works, while s 196 deals with assignments of copyright.

Moral rights – Part IX of the Copyright Act 1968 (Cth)
Individual creators may have moral rights concerning attribution, false attribution and integrity. These are distinct from copyright ownership.

Australian Consumer Law
The Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), can apply to advertising and promotional content. Section 18, dealing with misleading or deceptive conduct, may be particularly relevant, together with provisions dealing with false or misleading representations.

Privacy Act 1988 (Cth)
Privacy obligations may need to be considered where personal information is collected, disclosed, supplied to creators or used in campaigns, depending on the circumstances and application of the Act.

Trade Marks Act 1995 (Cth)
The use of business names, logos and registered trade marks by outside creators can also raise questions about what the creator has permission to use and for what purposes.

Other regulation
Depending on the industry, additional laws, codes or regulatory requirements may apply. Health, therapeutic goods, food, financial services and other regulated sectors can involve additional advertising considerations.

There is no single Content Creator Agreement that answers all of these issues. The laws that matter, and the way they should be dealt with, depend on the creator, the content, the business, the industry and what the parties are actually trying to achieve.

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10 QUESTIONS TO ASK BEFORE YOU ENGAGE A CONTENT CREATOR

What are they actually creating?
A photograph, a Reel, a caption and a complete advertising campaign are very different things.

Who will own the copyright?
Do not assume that paying for something necessarily answers this question.

If you don’t own it, what can you do with it?
Think about where, when and how the business may want to use the content in the future.

Can the creator reuse it?
Consider portfolios, social media, competitors and unreleased campaigns.

Can you change it?
Editing and repurposing can raise copyright and moral rights questions.

Where is the creator getting third-party material from?
Music, photographs, footage, fonts and templates can all potentially involve other people’s rights.

Are they using AI?
Consider whether this matters to the business and what information may be going into external AI tools.

Who checks what the advertising says?
Particularly where the creator is writing claims about the business’s products or services.

What confidential information will they see?
This may range from virtually nothing to passwords, customer information and unreleased products.

What happens when the relationship ends?
Ongoing use of content, files, passwords, confidentiality and unfinished work can all become relevant.

These questions are a starting point, not a substitute for advice about a particular arrangement.

SO, DO YOU NEED A CONTENT CREATOR AGREEMENT?

Perhaps the better question is: what could go wrong if you don’t properly document the arrangement?

For a very simple engagement, the legal issues may be relatively limited. For another business, the content may become a valuable asset used across websites, advertising, packaging and social media for years. An influencer campaign may also create consumer law and regulatory issues that have little to do with copyright.

This is why downloading a generic Content Creator Agreement from the internet can be risky. It may contain impressive-looking provisions while missing the issue that actually matters to your business.

At Sharon Givoni Consulting, we advise Australian businesses, agencies and creators on Content Creator Agreements, influencer agreements, copyright, intellectual property and advertising issues. We look at what is actually being created, how it will be used, who is involved and where the legal risks may arise before recommending how the agreement should be structured.

There is rarely a useful black-and-white answer without knowing the facts.

Our job is to identify the questions that matter, explain the legal position in practical terms and prepare an agreement that reflects the particular relationship rather than simply filling names into a template.

Turning Legalese into Legal Ease®

If you are engaging an outside photographer, influencer, videographer, designer, social media manager or other content creator, contact Sharon Givoni Consulting to discuss what your Content Creator Agreement should cover before the content is created and the campaign goes live.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.