Behind every sponsored post is an influencer agreement. Influencer agreements can range in sophistication, but are generally drafted with an objective of being relatively brief and signed by the influencer with little or no need for negotiation. That being said, these documents contain serious legal implications and should be read carefully and tailored as needed.
Understanding the terms of your influencer agreement can (1) maximize your negotiating power and (2) ensure your own compliance.
Influencer agreements should address key business terms, such as the length of the agreement (typically tied to a campaign), compensation or other incentives, frequency of posts, platforms on which the posts should be made and whether the company requires review of any content before posting. When reviewing these terms, the influencer should make sure that they accurately reflect the deal.
Agreements with influencers will also contain a number of legal terms, some of which are briefly summarized below:
Exclusivity: An exclusivity provision may limit the brands that an influencer can work with during the length of the campaign and optionally for a time period afterward. An influencer will want to limit the time and scope of this provision, or strike it altogether, in order to maximize their ability to work with other brands.
Ownership: Companies typically prefer outright ownership of the intellectual property rights in the content influencers create for them. That being said, influencers may push back and seek to keep ownership of their posts.
Use of Influencer’s Name, Likeness and Information: The agreement may include permission to use the influencer’s name, likeness and identifying information if the company wants the right to promote its connection with the influencer. Companies try to ensure they can use this information without needing to seek further consent or approval from the influencer. An influencer will want to review the scope of this provision to understand what it covers and narrow the language if needed.
Confidentiality: This provision generally requires the influencer to keep confidential certain information he or she learns in connection with the campaign. If the company is particularly sensitive about disclosing confidential information, it may require the influencer to sign a stand-alone confidentiality agreement.
Indemnification: This provision may obligate the influencer to compensate the company for losses or damages that may occur in connection with the arrangement. An influencer may try to strike this obligation or at least limit their indemnification obligations.
>> Read and understand the company’s social media endorsement policy, which is often incorporated into its form influencer agreement.
>> Industry-specific laws, rules or regulations may be layered into an influencer agreement.
If you have any questions on influencer agreements (how to read them, why we draft them, when to negotiate them), reach out to Lauren Carey.