Paul J. Durham, Esq.
The rise of social media has brought about an explosion in influencer marketing. Whether their reach is global, national or regional, savvy influencers are becoming increasingly sophisticated in monetizing their work. Likewise, influencer marketing is no longer just a tool used by international brands and super exclusive service providers. We’ve recently seen influencer marketing campaigns from local manufacturers, performance venues and wedding planners, just to name a few.
Working with influencers is not without risk, and the best way to manage that risk often starts with a written agreement. While most companies are familiar with purchase orders, leases, and other common contracts, many may never have seen an influencer agreement before. Whether you receive the agreement directly from an influencer, or prepare your own template, here are a few points to ensure the agreement is covered.
1. Deliverables. Carefully specify the number of posts, the type of content to be published, and where throughout the campaign. For example, do influencers post across multiple platforms or are they limited to one or two? Of course, the agreement should all specify how and when influencers will get paid for their services.
2. Approval process. Retaining approval rights for influencer posts referencing your brand or products is often critical. The approval process should be detailed in your agreement to ensure that you are happy with the content and brand usage and that the event runs smoothly without unnecessary delays.
3. Exclusivity. Depending on the nature of the influencer’s content, it may be important to ensure product or service exclusivity — at least during the event. In other words, you probably don’t want an influencer promoting both your direct competitor’s product and your own.
4. Compliance with Applicable Laws. Sponsored Content must comply with all applicable laws and disclosure requirements, including those of the U.S. Federal Trade Commission. Best practice is to contractually require influencers to comply with all such laws and regulations.
5. Ethics Clause. By partnering with an influencer, you purposefully connect your brand to that influencer’s reputation, opinion, and voice. It goes without saying that it’s crucial to vet any potential influencer to ensure the influencer’s personal brand aligns with your own. However, public perception of influencers can change quickly and unexpectedly. Ethics clauses preserve your ability to terminate the relationship if the influencer’s actions negatively impact your brand’s reputation.
6. Post-Event Content Rights. After the campaign, consider what happens to the influencer’s posts and content, and who has the right to use or access it.
These are just a few high-level concepts to keep in mind when you’re thinking about working with influencers. Influencer marketing can be a highly personal and informal way of delivering product information to customers, but you should negotiate and sign an agreement with any influencer as carefully as you would document any other important business relationship.
Paul Durham is a commercial and intellectual property lawyer in Sheehan’s Portsmouth office. He assists corporations, entrepreneurs and creative professionals with a variety of corporate matters, including business formation, complex domestic and international contracts, and intellectual property licensing.