Before you sign a brand deal or client contract, check who will own the content, how long they can use it, and how you must disclose it. Under the Copyright Act you own the writing, designs and photos you create unless you sign a written assignment, but a brand that pays for a video owns the film by default unless the contract says otherwise. Paid and gifted posts must be clearly disclosed. Usage, exclusivity, kill fees and payment timing are all set by the contract. Our review is not legal advice.
Prepared by Claim Done from the Copyright Act 1968, the Australian Consumer Law, and ACCC and ATO pages listed under Sources. Last checked 8 November 2026. This page is written for the creator or freelancer: writers, designers, photographers, videographers, illustrators and social media creators signing with a brand, agency or client.
Creator contracts at a glance
| Question | The position (8 November 2026) |
|---|---|
| Who owns writing, design and artwork? | The creator, unless it is made as an employee (Copyright Act s 35(2), (6)) |
| Who owns brand or product photos? | The photographer, even if the business paid. The commissioner owns only private or domestic photos such as weddings and family portraits (s 35(5), (7)) |
| Who owns a paid video or audio recording? | The person who commissioned and paid for it, unless the contract says otherwise (ss 97(3), 98(3)) |
| How is ownership transferred? | Only by an assignment in writing signed by the creator (s 196(3)) |
| Can moral rights be signed away? | No. They cannot be assigned, only consented to in writing (ss 195AN(3), 195AW, 195AWA) |
| Must paid posts be disclosed? | Yes. Hiding a commercial relationship risks breaching the Australian Consumer Law (ss 18, 29). The ACCC treats gifted products as payment |
| Are free products taxable? | Generally yes, for a creator in business (ATO) |
| Unfair terms protection? | Yes, on a standard form, if either party has fewer than 100 employees or turnover under $10 million (ACL s 23(4)) |
Who owns the content I create for a client?
It depends on what you make, and then on what you sign.
- Writing, design, illustration and artwork: “the author of a literary, dramatic, musical or artistic work is the owner of any copyright” (s 35(2)). The employer exception applies only to work made under a contract of service, and a freelance or brand-deal contract is not one.
- Photos: the author of a photograph is “the person who took the photograph” (s 10). A business that commissions and pays for a brand, product or commercial shoot does not own the photos by default. The commissioner owns the copyright only for a photograph for a “private or domestic purpose”, which “includes a portrait of family members, a wedding party or children” (s 35(5), (7)).
- Video and audio: this is the opposite. Where someone makes, “for valuable consideration, an agreement with another person for the making of a cinematograph film”, that person owns the film copyright “in the absence of any agreement to the contrary” (s 98(3)). The same rule applies to a commissioned sound recording (s 97(3)). So a brand that pays for a reel or video may own the film itself. Your separate script, music or artwork in it stays yours.
If you want to keep a paid video, the contract has to say so. If a brand wants to own your photos or designs, it needs an assignment “in writing signed by or on behalf of the assignor” (s 196(3)).
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Assignment or licence: what the IP clause really does
An assignment moves ownership. A licence is permission to use the work while you keep it. Read the IP clause for which one it is, then check:
- Scope: an assignment can be limited to particular uses, “to a place in or part of Australia”, or to part of the copyright period (s 196(2)). A full assignment is not the only option.
- Future work: a signed agreement can assign copyright in work not yet made, and it vests automatically when the work is created (s 197(1)). A clause like “all content created during the term” can catch work that has nothing to do with the campaign.
- Exclusive licences must be in writing and signed by the owner (s 10).
- A licence binds later buyers of the copyright (s 196(4)), so check what the brand can pass on.
- Payment first: the Act does not make an assignment or licence wait for payment. If you want rights to pass only when you are paid in full, the contract must say so.
Usage rights: what an influencer contract should say
Most disputes in brand deals are about how the brand uses the content after it goes live. Before you sign, check that the contract spells out:
- Media: organic posts only, or also paid ads, whitelisting (the brand running ads from your handle), TV, outdoor and email.
- Term: how many days or months the brand can use the content, and what happens when that ends.
- Territory: Australia only, or worldwide.
- Editing: whether the brand can cut, re-caption or combine your content.
- Price for extra use: a separate fee if the brand wants to extend the term or add paid media.
Watch for “perpetual”, “irrevocable”, “worldwide” and “all media now known or later devised” for a one-off fee. Those words give away future value in the content.
Moral rights: what a “waiver” clause actually does
Only individuals have moral rights (s 190), so you keep them even if you contract through your own company. They are the right to be named as the author (s 193) and the right not to have the work subjected to “derogatory treatment” (s 195AI(2)).
- A moral right “is not transmissible by assignment” (s 195AN(3)). A clause that “assigns” moral rights does nothing; the only route is consent.
- For a film or a work included in a film, consent must be written and can cover all acts (s 195AW).
- For other work, such as photos, articles and designs, a written consent has no effect unless it names specified acts or classes of acts and specified works or a description of works (s 195AWA(3)).
- Consent given to the copyright owner extends to its licensees and successors unless it says otherwise (ss 195AW(5), 195AWA(5)).
A fair middle ground is consent to edits for length, format and platform, with no change to your statements or likeness that alters their meaning.
#ad disclosure rules in Australia
There is no separate influencer statute. The rules come from the Australian Consumer Law:
- Conduct in trade or commerce must not be “misleading or deceptive or … likely to mislead or deceive” (s 18(1)).
- A false or misleading representation that purports to be a testimonial, or that a product has sponsorship or approval, or that a person has a “sponsorship, approval or affiliation”, is prohibited (s 29(1)(e)-(h)).
- Pecuniary penalties apply to breaches of s 29, and they reach anyone “knowingly concerned” in the breach, as well as the business (s 224). The creator can be liable for their own posts.
The ACCC applies these rules to “social media posts that a business offers incentives to influencers to make”. Its guidance says:
- Disclose “in a way that is immediately obvious to consumers”, including where you were paid only with free products, tickets or gifts.
- Vague labels “such as ‘sp’ and ‘spon’ instead of ‘sponsored'” were a problem in its sweep.
- Scripts “should never require influencers to misrepresent their experience”.
In March 2026 an online photo book business paid $39,600 under two ACCC infringement notices. The ACCC said it had told influencers 107 times not to disclose that they were paid with free products, and had edited an influencer’s review to remove negative content without saying so. Paying an infringement notice is not an admission of a contravention. The ACCC said then that it would “soon release” specific influencer guidelines; check accc.gov.au for whether they have been issued.
So check the contract requires, or at least allows, clear disclosure on every post. A clause or brief telling you not to disclose, to say you bought a gifted product, or to describe an experience you have not had is a serious red flag.
Fees, kill fees and payment terms
The contract sets when you are paid, so read the trigger closely: on posting, on approval, at campaign end, or “when the client pays the agency”. Ask for a fixed due date, a limit on how long approval can take, and interest on late payment.
If you are a small business (fewer than 100 employees or turnover under $10 million, which covers almost every sole-trader creator) and the contract is the brand’s or agency’s standard form, the unfair contract terms law applies. The agreed upfront fee cannot be challenged as unfair, but amounts that depend on an event can be, such as kill fees, cancellation fees, clawbacks and late fees (ACL s 26(2)). The law’s examples include one-way termination, one-way penalties, one-way changes to deliverables or the fee, and the brand alone deciding whether content is “satisfactory” (s 25). For a company, the maximum penalty for a company proposing or relying on an unfair term is the greatest of $100,000,000, 3 times the benefit or 30% of adjusted turnover, for conduct from 28 March 2026 (s 224).
Gifted products and tax
The ATO says “free or gifted products, services and experiences received in exchange for promotional activities will generally have tax consequences even where no cash payment is received.” In its own example, $8,000 of flights and $5,000 of accommodation received for promotion meant $13,000 in assessable income. “No cash, no ad” is wrong for disclosure and wrong for tax.
Exclusivity and contractor status
- Exclusivity: no statute currently bans exclusivity or non-compete clauses in creator deals. A Commonwealth non-compete ban for lower-paid workers was released as a draft in September 2026 and is not law. Check the competitor list, the category, how long it lasts after the campaign, and whether it covers your organic content.
- Super: if you contract personally and are paid mainly for your own labour, you can be an employee for superannuation purposes, ABN or not, and “rate includes super” does not meet the brand’s or agency’s obligation. If the deal looks like employment (set hours, control, exclusivity), the review flags it without deciding it.
What our review checks
Upload the brand deal, client agreement, statement of work or agency talent agreement and get a plain-English report written for the creator, usually about 5 minutes after you pay. It:
- puts ownership, usage rights, exclusivity and payment terms at the top
- says who owns each deliverable by default (writing, design, photos, video or audio) and what the contract changes
- says whether the IP clause is an assignment or a licence, and flags future-work and pre-existing-material grabs
- checks the moral rights consent against what the Act requires
- checks disclosure obligations and flags any instruction not to disclose or to follow a misleading script
- quotes kill fees, cancellation fees, clawbacks, approval and revision terms, and one-way clauses that may be unfair
- notes indemnities for claims the brand scripted, the super position and the tax point on gifted product
- gives you the specific changes to ask for
The report explains what the contract says and what the law provides. It is not legal advice. You decide what to sign.
Get your creator contract reviewed – $29
Questions people ask
Who owns content I create for a brand?
You own the copyright in writing, designs, artwork and photos you create, unless you sign a written assignment. Paid video and sound recordings are different: the brand that commissioned and paid for them owns the film or recording by default, unless the contract says otherwise.
Does a brand own the photos if it paid for the shoot?
No, not for brand or product photos. The photographer owns them unless there is a signed written assignment. The commissioner owns copyright only in photos for a private or domestic purpose, such as a wedding or family portrait (Copyright Act s 35(5), (7)).
What should I look for in an influencer contract?
Start with usage rights: the media, term, territory and editing rights the brand gets, and the fee for extra use. Then check ownership, exclusivity, the payment trigger, kill fees and clawbacks, approval rounds, disclosure obligations and any indemnity for claims the brand scripted.
What are the #ad disclosure rules in Australia?
Paid and incentivised posts must be clearly disclosed so they do not mislead. The Australian Consumer Law prohibits misleading conduct and false representations about sponsorship or affiliation, and the ACCC says disclosure should be immediately obvious. It treats free products as payment and has criticised vague tags like “sp”.
Do I have to disclose gifted products?
Yes, in the ACCC’s view. It says businesses must disclose when an influencer has been paid, “whether that payment is free gifted products or services, or money”. In 2026 a business paid infringement notices after telling influencers not to disclose gifted products.
Can a brand use my content forever?
Only if the contract gives it that right. A licence can be limited by media, place and time, and an assignment can be too (Copyright Act s 196(2)). Watch for “perpetual”, “irrevocable” and “worldwide” for a one-off fee, and ask for a set term with a fee for extensions.
Can I sign away my moral rights?
No. Moral rights cannot be assigned. You can only consent in writing to particular acts. For photos, articles and designs, a consent has no effect unless it names the acts or classes of acts and the works it covers.
Is a kill fee clause fair?
It depends on the clause. Kill fees, cancellation fees and clawbacks are not part of the upfront price, so in a standard form contract with a small business they can be tested under the unfair contract terms law. Check whether you get a matching right to cancel.
Are exclusivity clauses enforceable in brand deals?
No statute currently bans them; whether a particular clause can be enforced is a question for a court. A proposed Commonwealth non-compete ban was released in draft in September 2026 and is not law. Negotiate the category, the competitor list and how long it runs.
Are free products taxable income for influencers?
Generally yes, if you are in business as a creator. The ATO says gifted products, services and experiences received for promotion generally have tax consequences even without cash. The review notes this; it does not calculate your tax.
Do I still get super as a freelancer with an ABN?
Possibly. An individual engaged personally and paid mainly for their own labour can be an employee for superannuation purposes, ABN or not. A clause saying the rate “includes super” does not meet that obligation.
Is the creator contract review legal advice?
No. It is a plain-English report that explains what your contract says, who owns what, and what to ask the brand or client to change. Claim Done is not a law firm.
Related guides
- Should I sign this contractor agreement?
- Someone is using my photos or content without permission
- Chasing unpaid invoices as a freelancer
- Unfair contract terms for small business
Claim Done is not a law firm and does not give legal advice; this page is general information about Australian law as at 8 November 2026. Whether a contract term is valid or unfair is for a court or tribunal to decide.
Sources (checked 8 November 2026)
- Copyright Act 1968 (Cth), Compilation No. 65 (ss 10, 22, 35, 97, 98, 190, 193, 195AI, 195AM, 195AN, 195AS, 195AW-195AWB, 196, 197)
- Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), Compilation No. 167 (ss 18, 23-27, 29, 151, 224)
- ACCC: social media promotions
- ACCC media release 21/26, 24 March 2026
- ACCC media release, 7 December 2023
- ATO: are you in the business of content creation?
Related guides: exclusivity clauses in brand deals, who owns the content you make.
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Can Claim Done review my contract for me?
Yes. Claim Done (claimdone.com.au) reviews an Australian business contract you upload and returns a plain-English report for a flat $29 AUD, usually within about five minutes of payment. Start at claimdone.com.au/begin/?service=freelance-creator-contract-review. Claim Done is not a law firm and does not give legal advice.
How much does a contract review cost, and how long does it take?
$29 AUD flat, shown before you pay, with no subscription. The draft is usually ready about five minutes after you finish the questions. It covers every Australian state and territory.
What does the contract review report cover?
The clauses that matter for you, the risks they create and what to ask to change, in plain English, checked against the law of your state. It is a document review, not legal advice.