Key Takeaways:
- Brands can structure strong influencer deals that protect their interests while building productive relationships with Influencers.
- Heavily negotiated provisions include ownership of (or scope of license to) the content, and exclusivity (limits on the influencer from promoting your competitors during the promotion).
- You are responsible if the influencer fails to comply with FTC disclosure rules (indicating the content is paid for), so you want to ensure this is done properly, both with contractual requirements and operational protections (a supervisory process to verify).
Social media influencer deals can be fun. Big brands might use popular celebrities to promote their products in clever ways. For example, actress Zendaya crashed a wedding to promote The Knot, a wedding services website (and her movie, “The Drama”). But the paperwork for these deals is serious business.
We commonly represent either Brands seeking the services of an Influencer or the Agencies representing Influencers. This article is written from the perspective of a Brand. The most common issues to address in these deals include:
- What content the Influencer will create
- What rights the Brand will have to use these assets
- What representations, warranties, and other legal protections are needed
- What other contract terms are needed (e.g., Exclusivity, Disclosure Requirements, Takedown Rights, Termination Rights, Agency Terms, etc.)
The below guidelines are an overview of key Influencer deal concepts but do not constitute legal advice.
SELECTING THE INFLUENCER:
It doesn’t always make sense to hire the most famous or most well-known celebrity. Sometimes Influencers with smaller but more highly targeted audiences can be a better fit for a specific product or Brand.
CONTENT AND DELIVERABLES:
Posts go by different names on different platforms (Reels, Stories, Shorts, TikToks, Tweets, Snaps, etc.), but key specifications to address for any social post include:
- how many posts, how often, and over what time period;
- format and length (word count for text, duration for video);
- which specific accounts or platforms;
- which products or services to promote;
- required themes or messaging; and
- any performance guarantees such as minimum impressions or clicks.
Deliverables may also extend beyond social posts. The Brand may ask the Influencer to create images, audio, or video for the Brand to use in its own channels or advertisements (Influencer Created Content). Alternatively, the Brand may produce its own content and ask the Influencer to appear in it, granting permission to use the Influencer’s name and likeness (Brand Created Content).
When doing a Social Media Influencer deal, it is important to describe in detail what promotions you will be getting, such as what channels, what accounts, how many posts, what type of content, etc. This is the core of what you’re paying for, so if you’re not specific enough, you may be disappointed with the results.
Content Use
The scope and length of the Brand’s rights to use Influencer content is one of the most heavily negotiated issues in these deals. The rights needed depend entirely on how the Brand plans to use the content.
- Posts. Typically, the Influencer owns their posts, but the Brand may be granted a license to use them in ads or on its own accounts. If the Brand plans to repurpose content long-term, it should seek ownership as a work for hire or a perpetual license.
- Influencer Created Content. As a Brand, you will prefer to own the content as a work for hire – that way you have more flexibility to reuse and repurpose the content later. However, larger Influencers or agencies may insist on a licensed arrangement with an expiration date, so this will be a negotiation point. Consider how you want and need to use the content to determine whether ownership is important enough to fight for.
- Brand Created Content. Since the Brand produces this content, it more commonly retains ownership, though there may be negotiated limits on scope and duration for use of the Influencer’s name and likeness.
- Derivative Content. Determine upfront what rights are needed to create derivative works—such as infographics, sizzle reels, highlights, or ads—from any of the above categories (and who owns it).
Advertising Rights
Brands often purchase advertising to support the same campaign, including Boosts (Facebook, Instagram, X), Sparks (TikTok), Promoted Videos (YouTube), or ads on other media channels. Brands will want to ensure that any license rights are broad enough to cover these uses. Note that advertising that also benefits the Influencer may be considered in-kind compensation, triggering FTC disclosure requirements.
Access Rights
Consider whether the Brand needs whitelisting—administrative access to portions of the Influencer’s social channels to directly purchase Boosts, Sparks, or other promotions. Whether you need it or not depends on whether you plan to buy additional in-app advertising for the posts. If you need it, simply add a line to the contract obligating the influencer to give you ‘admin’ access to their social account for this purpose (or obligating them to assist you in placing the ads).
REPS, WARRANTIES AND LEGAL PROTECTIONS
Brands should require Influencers to represent and warrant that:
- they hold all rights necessary to provide their content for the planned use;
- their content is legal, truthful, not misleading, and not offensive or objectionable;
- their content complies with the applicable platform’s terms of service;
- their content is original, human-created work (not AI-generated) and does not incorporate third-party materials without the Brand’s express approval; and
- all posts and promotions are clearly identified as paid or sponsored and comply with FTC guidelines. In livestreams, disclosures may need to be repeated periodically. In-kind compensation, like freebies, discounts, and ads promoting the social feed, all count as compensation that must be disclosed.
Influencers may push back on the content reps. For example, “offensive” or “objectionable” content may be too vague for them to agree to, or “edgy” content might even be their style. You have to decide how important this is to you, and whether you can more objectively describe (or give examples of) the types of content you’re concerned with.
Influencers may wish to use AI to assist in the creation. That might be OK as long as you’re aware of where and how they plan to use AI. You also may want to be less restrictive about this (relatively speaking) for the influencer’s social posts, but more restrictive with respect to content you expect to own (eg, content they create for you, sizzle reels, etc.), because you might not truly be able to “own” copyrights to AI created content.
Other Important Contract Terms:
Agency Terms. Many Brands contract with an Agency rather than directly with an Influencer. Agencies typically will not accept liability for an Influencer’s breach—which is generally acceptable, provided the Brand obtains: (1) a rep and warranty that the Agency has authority to bind the Influencer, backed by an indemnity; and (2) an agreement by the Agency to pay the Influencer and indemnify the Brand against any Agency-Influencer payment disputes.
Fees. Fees range widely and may be cash or in-kind (free products, coupons, trips, etc.). Key factors include the Influencer’s reach, number and frequency of posts, content specifications, IP rights sought, exclusivity period, etc. Consider performance-based components such as bonuses tied to engagement, click-through rates, or affiliate revenue splits.
Exclusivity. Some exclusivity is standard – you don’t want to pay someone to promote you and see a post promoting your direct competitor from the same influencer in their same social account at the same time. Key negotiation points are duration and scope (how competitors are defined, and whether restrictions apply only to the specific social accounts or extend to all media (e.g., don’t do a TV appearance promoting my competitor while you’re promoting me online), and how long does it last).
Non-Disparagement & Morals Clause. Include a clause prohibiting negative statements about the Brand during and after the campaign. Include a morals clause: if the Influencer is arrested, accused of a crime, or makes offensive public statements, the Brand should have the right to suspend and or terminate the campaign.
Timing. Many campaigns are time-sensitive, e.g., for product launches or seasonal campaigns (Black Friday), etc.. Content that arrives late can eliminate campaign value entirely. Include detailed schedules with specific remedies for missed deadlines.
Review and Takedown Rights. The Brand should have the right to review content before posting and require fixes. Specify the number of revision rounds included. If content is illegal or inappropriate, the Brand should have the right to demand immediate removal.
Survival. Specify how long content must remain live. The contract may require the Influencer to keep posts up for 3 to 12 months (except for stories that automatically disappear).
Social media influencer deals have become a mainstream marketing tool. By addressing the issues outlined above (from content specifications and IP rights to FTC compliance, exclusivity, and termination), Brands can structure deals that protect their interests while building productive relationships with Influencers.
