Whether you are a social media influencer, an advertising agency or a brand looking to enter into social media influencer relationship, you should have a definitive written agreement that clearly sets forth the expectations of the brand and influencer so to help avoid any ambiguities. The clearer the parties are in their agreement, the less of a risk there is to a party being disappointed, or worse yet, having a dispute. You want to have the influencer agreement set forth the license, payment and other key contractual terms.
Brand influencers may be licensing more than their rights of publicity (commercial use of an influencer’s name, likeness, image and voice). There may be trademark and copyright rights that are also being licensed.
From the brand’s perspective, the social media influencer license agreement needs to be unambiguous as to what can be done with the social media influencer’s name and likeness, the influencer’s or celebrity’s deliverables, the granted rights and other obligations. Brands are looking to license a plethora of things from an online celebrity or social media influencer. Items being licensed under a social media influencer agreement in addition to the rights of publicity (e.g. the social media influencer’s name and likeness) might include: photographs, text content, and the influencer’s social media platform, among other things. If a brand exceeds the scope of the license, the brand is at risk of being sued for violation of those licensed rights (and may be liable for substantial damages if found to have willfully violated copyrights and other proprietary rights).
Depending on the scope, breadth and duration of use under the license agreement, and the popularity of the social media influencer or celebrity, the compensation could range from a few hundred dollars to tens of thousands of dollars or more per campaign.
Here is a brief checklist of provisions you might expect to have in a Social Media Influencer Agreement:
- The License. You should be specific as to what property, works or materials are being licensed by the social media influencer. The social media influencer or celebrity might be licensing their name, social media handle or account name, images, signature, voice (or sound of their voice), likeness, or other creative content.
- Platforms. This depends on the brand’s marketing and advertising campaign. In addition to the licensed content, the influencer agreement should specify the media and platforms upon which the licensed materials are to be displayed.
- Scope of License. The social media influencer agreement needs to be specific with respect to the scope of use that the brand can use the licensed material. For instance: can the licensed materials be used on the brand’s website or social media posts, in online or print advertisements, or as part of the brand’s own creative works like videos or audio recordings? Perhaps the brand might want to register domain names, copyrights or trademarks incorporating the licensed materials or influencer’s name or likeness. Maybe the brand wants to the licensed material to be used by its corporate subsidiaries or affiliated companies. The scope of use should be very specific. The broader the scope and use, generally the greater the compensation paid to the influencer or celebrity.
- Grant of License. Things to consider are exclusivity, restrictive covenants, duration, sublicensing and geographical territories.
- Compensation. Brands can pay the social media influencer in a myriad of ways: flat fee, performance based, in-kind products, services or experiences, or some other metrics.
- Payment structure. There may be a signing bonus and then payments every week/month/quarter.
- Creative briefing sessions. Brands want compelling content displayed to the influencer’s followers. Good social media influencer or celebrity campaigns should involve collaboration. The brand and the influencer should hold regular meetings to develop the communication messages and address the desired corporate objectives.
- Approvals. You will want to address the approval process of the licensed content prior to its publication.
- Deliverables. The agreement should set forth what content is being created, frequency of creation, day-part (or time of day) for posting, and what are the penalties for not keeping to a schedule.
- Influencer content promotion. Will the social media influencer or online celebrity be expected to promote the branded content on the influencer’s other social media platforms? The agreement should be specific as to which platforms the branded content will be displayed, how often and when these promotions should take place.
- Content Inclusions. The agreement should be specific whether and what #hashtags will be used in the advertising campaign. Also, consider whether there should be tracking links and perhaps coupons and promo codes.
- Influencer disclosure guidelines. The social media influencer or online celebrity, and brand must comply with various regulations like the FTC’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” (16 CFR Part 255). The FTC’s Endorsement Guides provide that if there is a “material connection” between an endorser and an advertiser – in other words, a connection that might affect the weight or credibility that consumers give the endorsement – that connection should be clearly and conspicuously disclosed, unless it is already clear from the context of the communication. A material connection could be a business or family relationship, monetary payment, or the gift of free products and/or services. Note, the Endorsement Guides apply to both marketers and endorsers.
- Sunset clause. This provision addresses the duration that the sponsored content remains on the influencer’s social media channels (e.g., in perpetuity or for the limited duration of the advertising campaign). A social media influencer might want to remove sponsored content from their platforms after a few days after posting — so to avoid pumping their followers with too much sponsored content. Also, this opens up opportunities for other brands to enter into influencer agreements in the future.
- Termination Rights. Both the brand and the social media influencer would want rights to terminate the agreement for many reasons — violating the brand’s guidelines, violation of the morals clause, or non (or poor) performance.
- Morals clause. To protect a brand from hitching their wagon to a social media influencer that might make poor decisions, brans should set forth certain morals by which the influencer must conform outside of the campaign to make sure the social media influencer fits with the brand’s values (and corporate values). A morals clause addresses events like: the influencer conducting themselves with high public morals; the influencer doing something that is publicly disreputable, contemptable, scornful, or in any way brings ridicule; or if the influencer does something to shock, insult or offend the public or bring damage to the brand’s (or company’s) reputation.
- Prevent Brand Manipulation. A brand wants to make sure the influencer doesn’t edit any of the brand images in a way to exaggerate the effects of an advertised product or that might mislead consumers.
** This post is for informational purposes only. For legal advice regarding your Social Media Influencer or Online Celebrity Agreement, contact a Social Media Influencer Lawyer. **