Social Media Influencer Agreements (2023)
What is a Social Media Influencer Agreement or Contract?
A Social Media Influencer Agreement is a contract between an influencer and usually a company where the influencer endorses and or reviews the company, its products, or its services in exchange for money, free products or services, discounts, or some other payment arrangement. Influencer agreements are also called brand influencer contracts, influencer contracts, endorsement agreements, or celebrity endorsement agreements.
Promoting your business through celebrity or social media influencers can be a great way to increase consumer engagement and/or sales with your brand and business. It is becoming increasingly common for businesses and brands to work with influencers of all audience sizes in order to reach their customers. Influencers and businesses using an influencer to market and endorse their products, services, or business should make sure they understand and follow the Federal Trade Commission Influencer Guidelines and advertising guidelines, as well as any other applicable laws.
Questions about working with a brand or social media influencer in Utah? Send a message or schedule a free consultation with Stuart Call, Utah business attorney.
Influencer Contract Template Key Terms
FTC Influencer Guidelines and Other Applicable Laws
One of the last things a business wants is for its influencer marketing campaign to be scrutinized by the Federal Trade Commission or other regulatory entity that thinks either the influencer or the business is not making disclosures that are required by the FTC’s Influencer Guidelines or other laws and regulations. To help ensure the influencer contract is carried out legally, you can include a provision in the contract where the influencer acknowledges that they understand and will abide by the FTC’s Influencer Guidelines and any other applicable laws. You may also find it helpful to attach the influencer guidelines to the contract as a reference so that the influencer can become familiar with the rules, if they are not already.
Some of the key parts of those guidelines are included below.
Brand Influencer Exclusivity
A business should consider making the influencer agreement reasonably exclusive so that the influencer cannot market directly for any of your competitors during the period when they are endorsing your business or product. It may detract from the value of the agreement if the influencer is simultaneously endorsing your competitor’s product. After all, part of the value of an influencer contract is the specific endorser and their personality, brand, and audience.
Typically, non-competes and exclusivity agreements should be reasonable in scope, geography, and time. When it comes to non-competes or exclusivity clauses like this it is recommended to speak with an attorney as state law may vary.
Influencer Contract Social Media Posts: Content and Timing
Make sure that you and the influencer clearly understand the expectations as far as what kind of content you are looking for and timing of such content. Will the influencer only use text on a social media post, or are they required to use pictures and video? Should you approve the influencer’s posts or videos before they post them? What happens if you do not like the draft posts, does the influencer have to make another post? These are the kinds of specific questions to think about when drafting an influencer contract. You might also want your influencer to have a high degree of flexibility as well.
Some influencer contract template provisions that you can include are:
Require approval/monitoring of social media posts to ensure compliance with the agreement.
Create a schedule or timeline for posts and for the specific content of each post.
Create a process to handle if an influencer does not post correctly or if a post violates the influencer contract or FTC Influencer Guidelines.
Influencer Content Copyright and Ownership
Whether you own the rights to the posts as a work for hire, or whether the influencer retains the ownership of the content, you should make it clear who has the rights in the content. This provision should also include a determination regarding the future use of the content and derivative works using the content and the influencer’s name, likeness, etc.
Morality Clause
It may be wise to have a clause that allows you to terminate the agreement in the case that the influencer begins posting, or is later discovered to have posted or engaged in conduct that brings the influencer into public disrepute.
What terms do you need for an influencer contract?
Federal Trade Commission Influencer Guidelines
Businesses and influencers should be familiar with the FTC’s guidance on how it treats influencer advertising and sponsored posts and reviews. The FTC has authority to investigate and punish deceptive and unfair trade acts or practices. (15 U.S.C. Sec. 45(a)). Truth in advertising, including the sub-category of influencer advertising, falls under their purview. (16 C.F.R. § 255)
The FTC has determined that endorsements must be truthful regarding who is sponsoring it and that the substance of the endorsement is not deceptive or misleading. In the context of influencer advertising, this means:
If an influencer endorses a product, brand, or business then their “Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.” (16 C.F.R. § 255.1(a)); and
“When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.” (16 C.F.R. § 255.5).
There are a few other specific circumstances that should be noted such as how consumer, expert, and organizational endorsements should be used and made. (16 C.F.R. § 255).
Clear and Conspicuous Disclosures of Material Connections
The FTC has given some examples of types of connections that should be disclosed in an influencer endorsement context. They are:
personal
family
employment
financial
It is important to note that for a financial relationship, this includes receiving free or discounted products or services from the advertiser in addition to a formal influencer agreement. Even if you are not asked to mention, endorse, or review a specific product or service you received for free, the FTC says to still make that disclosure if you do mention it.
As a business, be aware that asking your employees to review/endorse your business online may implicate the need to disclose that relationship.
How to Properly Disclose a Material Connection
If a material connection exists between an influencer and a brand, then the disclosure of that connection must be placed so it is clear and hard to miss. This may vary from social media platform to social media platform.
The FTC provides some context specific guidance found in their publication Disclosures 101 for Social Media Influencers.
If you have any questions regarding or need a Utah business attorney’s help drafting an influencer agreement, please give me a call or send me a text or email.
