I’ve talked about this before on my various social media platforms. Which, if you aren’t following me you should—MontgomeryLawPllc on IG and Facebook. Actually, I’ve talked about it often. Influencer marketing has proven to be wildly effective. It is a regular practice for most marketers and brands. A recent survey showed that 86% of marketers were using influencer marketing just last year. Almost all of those utilizing it, find it effective.
I think it is safe to say that social media isn’t going anywhere for now, and therefore influencer marketing won’t be making an exit either.
So how does all of this work? In short, brands and social media influencer’s make a connection and decide to work together. Influencers might provide one instagram post, or an entire campaign of several posts spanned across a year. Or, a YouTube creator will find a sponsor for a one video, or a series. And there aren’t necessarily rules on what makes an influencer. Often times they are someone with a large following on the internet, but they might also be an authority figure in their particular community with less of a following than one would think.
You Must Get a Contract
If you work in this space you likely know all of the above. But, what I am seeing with potential clients, and reading, it appears that there is still quite a bit that influencers and brands alike are failing to do when jumping into these working relationships.
First transgression being failing to use a written contract with one another.
No, you aren’t breaking the law if you decide to do a deal like this without a contract in place. But I can’t sleep at night if you’re an influencer agreeing to work with a brand without one.
Lets talk about why.
FTC Guidelines and Actions
Recently, the Federal Trade Commission ie FTC, has come down hard on brands and influencers for failing to follow proper guidelines when dealign with sponsored content. I heard stories from one attorney that a client was handed down a $10,000 fine for failing to adhere to the guidelines, and that was a good outcome.
That said, it is something you want to pay attention too. What are these guidelines? Essentially, the FTC wants you as the brand and influencer to be very open and honest about your connection and how that influences the content being posted. You have likely seen things like #sponsored #paidad or #promotion in the caption of some IG or Twitter posts. The social media platform, or medium being used will determine exactly what rules need to be followed. For example, blog posts require an entire disclosure statement preferably at the top of the article. But, the general rule is this. The influencers must disclose clearly, obviously, and as conspicuously as possible, what the relationship between them and the brand is. Things like #spon or #sp aren’t going to do the trick. To get a full picture check out the FTC guidelines for yourself.
Having a contract in place that clearly spells out the guidelines and rules that the influencer must follow helps protect the brand from trouble. And it gives the influencer direction they may otherwise not have. So that is reason number one to have a contract in place.
Protection for Both Parties
If you agree to work with a brand and they don’t offer a contract, offer your own and let them negotiate with you on the terms. And if you are a brand that doesn’t offer a contract, stop doing that right now.
An agreement will hopefully outline all expectations, such as campaign schedules, payment schedules, intellectual property rights, content requirements and of course those FTC guidelines discussed above.
A working influencer agreement is the best way to ensure that this partnership benefits both the brand and the influencer, and that it is properly executed to make the marketing campaign successful.
Terms to Consider
The contents of the agreement are totally up to your and are 100% negotiable. I have a prior article that I think might be useful as you review your agreement if you check out this contract checklist it’s a great starting point.
That said there are some specific clauses I think are helpful to make note of.
- Start and end date for the campaign – This will ensure everyone from the brand to the influencer stays on track.
- Scope of work for deliverables- Don’t leave a generic statement like “a social media post.” Get specific, “a 500 word blog post” or “20 minute YouTube video” more details below…
- Creative Control – Ensure the contract describes who has the control of the actual post, if you are the influencer you will likely want it to say something like “influencer retains control over the Instagram content”
- Image Design or Specifications- Does the image need to be organically created by the influencer or are stock photos allowed?
- Rights to the work- Does the brand or influencer retain control and the rights to the work? Do you as the influencer want the right to republish the material on any and all of your social media platforms? Is there a specific time frame that the brand wants to allow this?
- Edit and approval process- Clearly indicate how the influencer gains approval on the post. And as the influencer, you will likely want to retain the right to approve any edits the brand makes.
- Payment Details- All parties must agree on a payment, schedule of that payment, and what happens if payment is not rendered.
This list is by no means exhaustive. These agreements will likely have standard contract language as well.
One Final Note
These agreements are important for so many reasons. An agreement will remove uncertainty form the brand influencer relationship and put limitations on it. They help to establish a professional relationship from day one. As an influencer brands need to view you as a professional and important element of their marketing strategy. And as brand, you don’t want the influencer space to view you as disrespectful or unprofessional. An agreement allows both parties to maintain a sense of professionalism while being held accountable for their actions. This will likely help to protect both sides from disputes over nonpayment or improper use of content.
It is my best advice to always get it in writing. Especially if that it is a deal to provide sponsored content as part of a brands marketing strategy.
If you have questions, or an agreement you need help reviewing or negotiating don’t hesitate to reach out. I would love to chat! Email me at email@example.com or send me a DM through the instagram handle listed at the top!
Please note that this is not meant to be legal advice for you or your situation, this is merely some legal research and knowledge on the given topic.