North Nash


Posted: February 1, 2018 | Tips

In previous posts we looked at recent FTC disclosure requirements for influencer agreements. Today we take another dip into this timely topic: what elements should be in an influencer contract and how do you make the relationship between brand and influencer successful?  

Teaser: Most brand owners don’t know and have no agreement or sign whatever the influencer gives them, and most influencers sign anything the brand gives them. If that’s the approach, it’s no surprise if the marketing effort fails or conflict develops.

Here’s the problem: You’re a brand owner and you want to spread the word about a new product. Your marketing department found the “perfect influencer.”  She is famous; he can sell anything. He/she knows what the company wants and how to sell it (you think). You brainstorm and it all sounds good. You say, “Go create content!”  You’ve agreed on price, and you’re sure launch day will be a huge success.   But launch day comes and goes, and the results are meager. Worse, the influencer doesn’t deliver what you expected, and he has ideas you don’t share and now you can’t control him.  Worse, you’re now you’re in a dispute over who owns the content and the derivative works. And how long is this deal in effect? You disagree.  You have egg on your face. This wasn’t supposed to happen. 

What went wrong? The influencer’s and brand’s expectations were not written down in detail, and many open issues hadn’t been agreed upon.

So what elements should be included in a successful influencer marketing agreement?

  • Scope of work and specific deliverables. Instead of “promote on social media” or “create content to promote the brand” or similar vague statements, specify concrete deliverables.  Examples:   “three YouTube videos that picture the product in use with comments about the product”; “two blog posts per week of 500-1000 words; “one 1,500 word e-book;”  “five lifestyle photos (no stock photography) in five sponsored Instagram posts and five Facebook posts.”  
  • Distribution of content and cross-channel distribution.  Which social channels will influencer promote his/her content on? How many times? Is it ok to duplicate content across social media platforms?  Specify days/times. 
  • Brand’s right to input copy points and how will copy be incorporated?  Brand should have the right to provide copy points for influencer to put in his/her own words and use in the campaign. Provide copy points one week in advance of influencer posting.
  • Brand right to preview before posting with brand right to edit. The brand should establish its clear expectations regarding its right to preview posts, make edits to posts (compliance with FTC Endorsement Guidelines and advertising liability issues should be considered), schedules/timing for submission for approval and review/approvals, etc.  No influencer wants edits they don’t agree with, so to prevent disagreement, include details on exactly how the brand will manage the edit and approval process.
  • Who keeps creative control?  Typically the influencer will retain creative control over the blog content. But the brand should specify this is subject to brand’s right to preview and edit.
  • Influencer exclusivity period.  Brand should obtain a commitment that influencer will not post or market for any other competing or similar brand (or perhaps any other brand) for a specified period of time that includes the campaign and some buffer time on either end. Brand should make sure influencers’ prior work performed at an earlier time is not going to post, be published, or air during brand’s campaign.
  • Start and end date.  The brand will want an ongoing relationship with good influencers, but each specific engagement should have a separate agreement (or addendum to a master agreement) that specifies the specific campaign start and end dates so everyone has clear expectations. 
  • What rights are being purchased?  The agreement should clarify if the brand is purchasing all right, title and interest to the influencer’s deliverables (including all rights  of copyright)? Or only a license for a term? Just first publication? May the influencer re-publish the content on its social and owned channels after a certain period of time? The agreement should clarify ownership of content, copyrights, licenses, and clearances for third-part use of content.  All these details should be fleshed out or conflict will develop.
  • Derivative content.  If brand intends to create derivative content from the influencer’s work product, this should be specified and brand rights spelled out.  Example: dividing up an e-book into several blog posts with the influencer’s name on it, or creating an infographic from the post.  May brand translate the work into other languages and publish overseas?  If so, does influencer have preview and edit rights on such derivative work?
  • Advertising.  Influencer will not be happy if his or her face is plastered all over the internet with product endorsements unless the contract gives the brand this right. If the brand intends to promote content through advertising and promotions, get the right to use influencer’s name and image in advertising and promotions and specify the media in which it may appear.
  • Specify that influencer content must comply with FTC Disclosure Guidelines.  A prior blog post here discussed those Guidelines. Spell out in the contract that content must comply.  Some brand managers fight this.  They are reluctant to make clear that the endorsement is sponsored content, but that is what the FTC requires. In addition, the influencer’s endorsement is supposed to be a sincerely held opinion. Writing into the contract specific opinions that the influencer must hold and express is inconsistent with these Guidelines.  The brand can use its approval and edit rights and discuss content with the influencer rather than dictate in advance in the contract what the opinion must be.
  • Dedicated sponsorship or non-dedicated?  The contract should specify which. If the campaign is “dedicated sponsorship,” no other brand name mentions should be in the sponsored post.  For example, if the agreement calls for the influencer to produce a YouTube video, the contract should provide that no other brand mentions will appear in the video. 
  • Details of payment.  This is obvious. But some agreements fail to specify how and when payment will be made.

Experienced legal counsel can help craft a successful influencer agreement that covers the bases tailored to your campaign and complies with FTC Endorsement Guidelines. At North & Nash LLP we have the experience with influencer agreements and have helped clients achieve successful campaigns.