Preparing Influencer Contracts for Social Media Marketing

The use of social media influencers or content creators as a major marketing tool has been growing remarkably with the increase in the use of apps such as Instagram and TikTok. Although companies may have previously relied on informal agreements prepared through an exchange of emails or direct messages, strong contracts defining the scope of services benefit all parties, especially as such agreements become increasingly more lucrative. Such agreements limit ambiguity and provide critical safeguards for company standards. The following five tips for influencer contracts can ensure a robust contract that benefits both parties:

5 Tips For Influencer & Content Creator Contracts 

Step 1: Ensure that retained influencers will adhere to company standards. 

Whether working with an influencer on a solitary campaign or long-term project, be sure that the content creator will be following your branding standards. This can often be accomplished by sharing the company’s values or clearly asserting the company’s policies on image retouching, filters, hashtags, or captions. To ensure that the defined branding standards are met, consider adopting an approval procedure where content – whether photos, blog posts, or video clips – is reviewed prior to any publication by the contracted influencer. Also, consider including a morality clause that would allow for immediate termination of the agreement should the influencer behave in a manner that does not conform with the company’s standards or image.

Step 2: Clarify the types and frequency of postings.

The agreement should clearly set forth what content is being created, the frequency of publication, times and dates for posting, and any penalties for not keeping to the required posting schedule. Depending on the social media platform used by the influencer, the scope of the deliverables may change. It is important to be clear on what is to be created and the frequency of postings.  As the scale of audience engagement and interaction may be different throughout the day, it is important that a promotion schedule is agreed upon to ensure the most benefit. 

Step 3: Content ownership.

The agreement should be clear with regard to the ownership of the content created during the partnership. If you are interested in reposting the content on your website or social media accounts (or making sure that images do not appear on other websites), a clause should be included within the agreement providing that you retain ownership (including copyrights) of any content created in connection with the partnership and are free to re-post and share. 

Step 4: Ensure compliance with all required disclosures. 

To stop deceptive ads and regulate social medial marketing, the Federal Trade Commission (“FTC”) recently released Endorsement Guidelines which provide an outline for influencers paid to advertise a product. Specifically, a disclosure needs to be clearly present whenever anything of value is exchanged for the marketing or mentioning of a product; remember, this can include the product itself. Be aware of these guidelines and require that any influencer retained will guarantee compliance with the FTC regulations.

Step 5: Protect your product.

If you are working with a highly desirable influencer it is likely that the content creator has numerous marketing agreements simultaneously. Consider including a clause that forbids mentioning any competitors or rival companies unless you receive prior notice or it is expressly permitted in writing. You may also consider including language which limits the ability of an influencer to work with certain competing companies or create their own competing product within a certain amount of time following the execution of the agreement.

How Can Our Outside General Counsel Attorneys Help You in Negotiating Influencer Marketing Contracts?

Santomassimo Davis LLP has a team of legal experts that can help companies navigate the drafting of unique contracts such as influencer agreements. For more information, schedule an appointment.

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