A Social Contract – Terms to Consider for Influencer Advertising Agreements


Whether you’re paying big bucks for a Kardashian or providing discount coupons to a local star, hiring “influencers” to promote your company, products or services has become commonplace. But it’s not yet common to contract with influencers for their services. And that’s a mistake! If you’re hiring an influencer, you should strongly consider a written agreement.

But first, what is an influencer?

An “Influencer” is: An individual who has the power to affect purchase decisions of others because of his/her authority, knowledge, position or relationship with his/her audience. For legal purposes, an influencer is anybody your company is compensating to post, print, or otherwise disseminate information for a commercial purpose.

Ok, so you’re hiring an influencer and you’re going to use a contract. Here are some of the terms to consider including in your influencer agreement:

1. Define Performance and Content Ownership

Provide as much detail as possible relating to the content the influencer is going to create and include who ultimately owns the content. Include how many posts are expected and specifically on what accounts and platforms the posts need to be made. Most influencers have more than one social media account. If their public Twitter account has 1.5 million followers but their private Instagram account only has 500, you will probably want to make sure the posts are primarily made on the public Twitter account. Depending on which party owns the content, a license may be needed for the non-owning party to use the content. It is also smart to include a payment schedule (Hint: don’t pay the influencer all up front).

2. Morals Clause

Determine the sort of content with which your brand can and cannot be associated. If you’re selling children’s toys, you likely don’t want posts of your product to include vulgarity, drugs and alcohol. This clause should be broad, and it may be wise to have it apply to the influencer and their family. Including family members may seem odd, but there have been several instances this year where family members of popular influencers participated in criminal and otherwise unsavory activity that could reflect poorly on your brand.

3. Fraudulent Follower Trigger

A big part of what you’re paying for is the reach of the influencer. If it’s ultimately determined that a portion of the influencer’s followers are fake, you’re losing the impact of the influencer’s network and paying to reach people that don’t exist. This is a big problem. A study released by the University of Baltimore determined that fake followers in influencer marketing will cost brands $1.3 billion this year. Think about asking the influencer to include a clause that allows you out of the agreement and a return of payment in the event it is determined the influencer’s followers are not genuine. Services including Social Audit Pro, IG Audit, Hypr and Famoid can help you determine the authenticity of followers prior to engaging.

4. Non-Disparagement Clause

Your brand is paying influencers because they have the ability to influence consumers—that influence can go both ways. Think about including a non-disparagement clause.

5. Right to Approve/Remove Content

This is one of the most important clauses to consider—giving yourself the right to approve content and have content removed. Many companies don’t like dealing with the burden of pre-approving content, so instead they include a clause that allows for absolute authority over the removal or revision of content. Be sure to define the amount of time the influencer has to remove content after a request is made (e.g., within 6 hours of a request).

6. Compliance with FTC Guidelines

The FTC has been paying attention to influencer advertising and has released easy-to-read guides on how to comply with the law. Including a clause requiring compliance with all FTC guidelines is often a good idea.

7. Exclusivity

It’s common for successful influencers to work with more than one brand at a time. If you want an exclusive partnership with a content creator, that needs to be included in your agreement. Many successful influencers won’t agree to broad exclusivity terms, so you may need to narrow the exclusivity to the category (e.g., only one beer brand) and apply time limits (e.g., no competing brands for at least three months).

Finally, authenticity matters! Pick an influencer that actually likes your brand/products. Just because a person has reach doesn’t mean they’re the right pick for your brand. The reason consumers respond to influencer advertising is because it feels more authentic than traditional advertising. While this is not an exhaustive list of terms, hopefully you can use it as a checklist of key terms to include in your written agreement when negotiating with all of your influencers moving forward. Did I mention it’s usually a good idea to have a written agreement for your influencers?

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.


About the Author: David Merritt

David represents clients in advertising, trademark and other intellectual property disputes throughout the country. David has significant experience with all stages of litigation, including trials, appeals and TROs. He has also successfully represented clients with advertising inquiries from the FTC and with advertising disputes before the National Advertising Division of the Better Business Bureau (NAD). From major commercial advertising to social media campaigns, David also works with brands to ensure their consumer-facing communication complies with relevant federal regulations and limits their potential litigation exposure. He has extensive experience creatively guiding major technology, clothing, food and consumer goods brands through potential legal pitfalls while enabling them to make meaningful advertising claims across every media platform.

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