Indemnification Clauses in Influencer Contracts: Who Pays When Something Goes Wrong

An indemnification clause in an influencer contract sets out who covers the other party's losses if a specific type of claim arises from an outside third party — typically a claim for copyright or trademark infringement, a disclosure or other regulatory breach, or conduct by the creator that damages the brand. The clause doesn't decide whether liability exists at all; the law and the facts of the situation decide that. It decides, purely and simply, which of the two parties pays the bill once liability is there.

This is practical guidance from Make Influence, not legal advice. Use it as an overview of what the clause needs to address — have the actual wording and local requirements reviewed by a lawyer.

What an indemnification clause is — and what it isn't

An indemnification clause names an indemnifying party (the one who pays or covers the loss) and an indemnified party (the one who's protected), for a defined category of third-party claims. It gets confused with three other things it isn't:

• It isn't the liability itself. Whether liability exists at all is a question for general law and the facts — the clause only allocates the bill afterward.
• It isn't insurance. Liability insurance pays out when a claim arises, regardless of what the contract says about indemnification. The indemnification clause decides which of the two contract parties ultimately bears that cost between themselves.
• It isn't a force majeure clause. A force majeure clause covers what happens when neither party is at fault — indemnification is about allocating fault once a third party brings a claim.
• It isn't a morality clause. A morality clause gives the right to end the collaboration over damaging conduct — it doesn't create a payment obligation to a third party.

The three situations that typically trigger indemnification

1. Intellectual property infringement

The creator uses unlicensed music, footage or other material in the paid content, and the rights holder brings a claim against the brand because the content is part of a paid campaign. Here it's typically the creator who indemnifies the brand — the creator controls what goes into the piece.

2. A disclosure or other regulatory breach

The content isn't correctly labelled as advertising, or contains a health or financial claim that breaches marketing law. Who bears the risk here depends on who actually made the call — did the brand give the creator specific wording to use, or did the creator write the problematic claim themselves?

3. Conduct by the creator that damages the brand

A private statement or action by the creator triggers a claim against the brand — typically because the public associates the creator's conduct with the brand, even though the brand had no influence over it. This is the situation where an unqualified clause is most dangerous for the creator, because it easily ends up covering everything, not just what the creator could actually control.

Who indemnifies whom?

In practice, most indemnification clauses are one-directional — they only bind the creator toward the brand, not the other way around. A mutual clause, where both parties indemnify each other for their own mistakes, is the fairer standard and should be the starting point unless there's a specific reason to deviate from it.

Why an unqualified clause is dangerous — especially for the creator

A clause obligating the creator to indemnify the brand for "any and all claims, however arising, in connection with the content" is the single most common trap in an influencer contract the creator hasn't negotiated. That wording, read literally, also covers claims the creator could never have foreseen or controlled — for example if the brand's own product turns out to be defective, or if the brand's marketing team supplied a claim the creator simply repeated. Without a dollar cap, the creator's financial exposure is theoretically unlimited, no matter how small the fee for the job was.

Four concrete ways to mitigate the risk

Indemnification compared to three clauses it's often mistaken for

Example: what an unqualified clause can cost (illustrative)

The figures below are a made-up worked example to illustrate the point — not a real customer case.

A nano-influencer is paid DKK 3,000 to post about a supplement, using wording the brand's marketing team supplied, claiming it "reduces fatigue by 40%." The contract contains an unqualified clause under which the creator indemnifies the brand for "any and all claims, however arising." The claim turns out to be unsubstantiated, and a consumer organisation brings a claim against both the brand and the creator. The brand's legal costs alone reach DKK 85,000, and the clause's wording makes the creator responsible for covering them — even though the creator simply repeated wording the brand itself wrote. DKK 85,000 is roughly 28 times the creator's fee for the job. With a liability cap set at the fee and a carve-out for brand-supplied material, the creator's exposure would have been capped at the DKK 3,000 fee, or would never have arisen at all, since the claim genuinely stemmed from the brand's own wording.

Danish legal grounding: freedom of contract, not a statutory requirement

There is no Danish statutory requirement to include an indemnification clause in an influencer contract. The Danish Contracts Act's (aftaleloven) general principle of freedom of contract means it's the contract — not the law — that allocates this risk between the parties. Without a clause, the allocation falls back on ordinary tort-law principles, where the party who actually caused the harm is generally the one liable to the third party — but that's far less certain and more expensive to establish than a clear contract term.

FAQ

Does an indemnification clause always need to be mutual?

There's no legal rule requiring it, but a mutual clause — where both parties indemnify each other for their own mistakes — is the more balanced standard. A one-directional clause that only binds the creator should always come with a liability cap.

Does an indemnification clause cover the same thing as liability insurance?

No. Insurance pays the financial loss once a claim arises, regardless of what the contract says. The indemnification clause decides which of the two contract parties ultimately bears that cost between themselves — see influencer marketing liability insurance for what insurance actually covers.

Can a creator negotiate an indemnification clause?

Yes, and they should. A liability cap set at the fee and a carve-out for brand-supplied material are the two easiest points to get agreed, because they're reasonable for both sides.

What happens if the contract doesn't mention indemnification at all?

Then the allocation falls back on ordinary tort-law principles instead of a clear contract term — which typically makes it more expensive and less certain for both sides to establish who actually has to pay.

Is a US brand's disclosure-related lawsuit risk the same kind of claim this clause is meant to cover?

Potentially, yes — a US consumer class action over undisclosed sponsorships is exactly the kind of "disclosure or other regulatory breach" claim this clause addresses, and getting the allocation right in advance matters even more once real money is at stake. See the 2026 US influencer-disclosure class actions: what they mean for brand liability for three live examples of brands facing exactly this exposure.

Make Influence's operational perspective

In our experience at Make Influence, indemnification is the clause brands most often copy straight from a generic vendor contract without adapting it to an influencer relationship. That usually produces a one-directional, unqualified clause that technically leaves the creator worse off than necessary — and that a well-negotiated creator or agency typically gets tightened, without changing anything about the brand's actual protection against the claims the clause should genuinely cover. See what to put in an influencer contract for the other 12 terms a contract should address.