Ferrer-Bonsoms · Sport and intellectual property series (no. 3) · 8 October 2026
The conversation almost always starts the same way. The brand has signed a creator, the campaign has worked, and someone asks in a meeting whether it complied. The usual answer is: “he isn’t one of the influencers the law covers, so it doesn’t apply to us.”
That is precisely the wrong reading, and it is worth understanding why.
The rule that barely applies
Royal Decree 444/2024, in force since 2 May that year, develops the figure of the user of particular relevance on video-sharing platform services. Anyone who falls within it must register with the State Register of audiovisual service providers, identify advertising, protect minors and rate content, and comply with sectoral advertising prohibitions. Penalties run from EUR 10,000 to EUR 1,500,000.
The difficulty, for anyone seeking reassurance, is the threshold. All three conditions must be met at once: gross annual income above EUR 300,000 from the audiovisual activity; at least one million followers on a single platform, or two million across all accounts; and a minimum of twenty-four videos published in the preceding year.
In practice that reaches some six hundred creators in the whole of Spain. Which is to say, almost none of those working with a mid-sized brand.
The rules that always apply
And here is the error. The creator falling outside the Royal Decree leaves the brand outside nothing, because the duty for advertising to be recognisable as advertising does not arise from that instrument. It arises from unfair competition and advertising law, which apply to any campaign regardless of the size of whoever executes it.
Spain’s Unfair Competition Act treats as a surreptitious commercial practice the inclusion, as editorial content in the media, of communications intended to promote goods or services where the trader has paid for that promotion without it being clearly stated. Its provisions on misleading acts and misleading omissions apply alongside. To these are added the General Advertising Act and, at the self-regulatory level, the Code of Conduct on the use of influencers in advertising, applied by AUTOCONTROL and the Spanish Advertisers Association through the Advertising Jury.
And it is the advertiser who answers. This is the part that most surprises people in meetings: the brand that pays and does not require disclosure is not an innocent third party harmed by the creator’s oversight. It is the party commissioning the commercial communication and it answers for it.
A tiny “#ad” at the end of a description the viewer has to expand identifies nothing. The useful test is whether an average viewer understands, from the outset and without effort, that this is advertising.
The five things that are almost never right in the contract
Identification of the advertising. Mentioning it is not enough: the specific format must be agreed, and where in the content it appears, with a reserved right to review the material before publication and to require its correction. Without that power, the brand carries the liability without the control.
The assignment of image rights. Consent to use a person’s image must be express under Spain’s Organic Law 1/1982, and whatever is not expressly assigned is not assigned. The contract must state for which media, for how long and in what territory. We dealt with this in detail in the first article in this series.
The assignment of copyright in the content. This is the trap that costs the most money. The video, photograph or text the creator makes is their work, and Spanish copyright law is demanding about assignments: the modes of exploitation, the term and the territorial scope must be stated. If the term is not stated, the assignment is limited to five years; if the territory is not stated, to the country where it was granted; and if the modes are not specified, to what necessarily follows from the contract and is indispensable to its purpose.
The practical consequence is that a brand can pay for an excellent video and discover six months later that it cannot use it in its own advertising, nor dub it, nor broadcast it outside Spain. Not because anyone acted in bad faith, but because the contract spoke only of publishing it on the creator’s channel.
Minors, in two directions. If the creator is a minor, consent over their image follows its own rules and may require the legal representative to act with notice to the public prosecutor. And if the creator’s audience is predominantly made up of minors — common in certain gaming formats — the campaign enters the territory of restrictions on advertising directed at minors, which are stricter and far less negotiable.
The conduct clause and termination. Sponsorship ties a brand to a person for months. What happens if that person does something that damages the brand must be agreed: suspension, termination, repayment, withdrawal of content. And it is worth agreeing it in both directions, because the creator also has a reputation to protect and a one-sided clause negotiates badly.
Sectors with rules of their own
Where the product is gambling, alcohol, tobacco, medical devices or financial services, specific restrictions overlay everything above and in some cases prohibit the format outright.
Gambling deserves express warning: its regime for commercial communications has been subject to amendment and to judicial rulings in recent years, and it is not a field where recollection suffices. Before proposing any campaign in that sector, the current state of the rules must be checked.
And data, if there is a prize draw
Participation promotions — prize draws, codes, forms — involve the processing of personal data. Who is the controller, what information participants receive and what happens to the data at the end of the campaign must be decided and documented. That the creator collects it on their own account does not make the problem theirs.
What to check before signing
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That identification of the advertising is agreed as to format and placement, with a right of prior review.
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That the image assignment states media, term and territory.
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That the assignment of rights in the content expressly covers the uses the brand will actually make, including those it will make in two years’ time.
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That the position on minors is resolved, whether it concerns the creator or the creator’s audience.
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That there is a conduct clause with concrete consequences and not merely a statement of intent.
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And that someone inside the brand is charged with checking that what was published matches what was agreed. A flawless contract nobody verifies is worth exactly as much as no contract at all.
At Ferrer-Bonsoms we review and draft sponsorship and collaboration contracts with content creators: image and copyright assignments, advertising disclosure, conduct clauses and the protection of minors. If you are about to launch a campaign, or already have one running, get in touch and we will review it.
This article is part of our series on sport and intellectual property. The first instalment addressed the unauthorised use of athletes’ image online.