Influencer marketing is essentially word-of-mouth marketing but with added legal and financial complexities. What started as brands sending individuals free products in exchange for a post on their social media accounts, has turned into a key tool in brand’s marketing toolkits that drives profits. Influencers can be essential to brands, but do they need formal contracts in place for these brand deals and sponsorships? With increased scrutiny by the FTC and states enacting landmark laws aimed at protecting child influencers, contacting an experienced entertainment attorney may be helpful.
An influencer contract, which is legally binding, details the expectations and details of the work, ensuring that brand and influencer are both in agreement with each other.
Key Provisions of an Influencer Contract
Scope of Work. This section should clearly lay out the influencer’s deliverables. This can include details on what type of content will be created and how many posts, and on which platforms the content will go live as part of the brand deal. This section should also include deadlines and any engagement requirements the influencer must perform after the content has been posted.
Payment & Compensation. This section should clearly state the terms and conditions under which compensation will be paid. It is crucial to memorialize payment terms in the contract. If compensation depends on performance factors, those factors and metrics should be clearly stated in this section.
Content Guidelines. This section will detail the content itself and specific requirements for what needs to be in the actual video or photo content. Brands and influencers can add requirements to ensure that the content mutually aligns with overall brand identity and marketing strategy. This section should also detail the approval process, if any, that the influencers should follow creating the content but before posting the content (which is typically at the brand’s direction). Most importantly, any necessary legal disclosures should be explicitly outlined to protect both the brand and the talent.
Intellectual Property Ownership and Rights. This section should define the ownership rights for the content. It should lay out whether the brand has temporary usage rights, full ownership, or shared licensing, and clarify if and how content can be reused, edited, or repurposed.
Exclusivity Terms. Brands are engaging with influencers to promote their products and should limit how that influencer interacts with competitor brands to ensure the relationship is mutually beneficial. This section should clearly define which brands and types of products will be considered competitors. It should also include how long the exclusivity period lasts and stipulate what the influencer can and cannot do with certain products or general types of products.
Mistakes to Avoid
Influencers and brands enter these contracts with the best intentions, but reality doesn’t always play out perfectly, and both parties would benefit from strong termination clauses. These termination clauses should state payment obligations upon termination and what happens to the content once the agreement is terminated. Clarifying these terms upfront prevents significant enforcement hurdles and legal fees later if termination is necessary, particularly under contentious circumstances.
Protecting Yourself by Hiring an Experienced Lawyer
FTC guidelines and regulations surrounding influencer marketing are ever evolving as the social media industry continues to expand. Hiring an attorney can ensure you are compliant with legal requirements and are keeping your business protected so you can focus on staying ahead of the latest social media trends and opportunities.
