This article appeared first in Forbes.
At Carusele, we’ve hired thousands of influencers for our clients’ programs, and each and every assignment includes a detailed contract between us and the content creator. At times, clients have suggested we use their contracts, but most often those contracts are missing important brand protections or opportunities to clarify important expectations.
There are several elements to an influencer contract that are obvious. It would be hard to imagine writing a contract with a content creator for a brand and leaving these out. They include:
• Assignment details: Clearly, we need to outline exactly what we expect to be delivered, but don’t forget to describe how you expect the content to be delivered. Can the influencer simply push it live and send you the link or do you need it sent through a particular system in advance for review and approval?
• Key messages: While you want the influencer to use their own voice and their own opinions about your product or service, help them by providing the key messages they may want to choose from. This is, after all, a paid marketing effort.
• Compensation: How will the influencer be compensated and when? Is it just free product (yuck) or free product plus a fee? Don’t forget the how and when of payment terms. Everyone needs to be clear on when money will change hands.
Now that we’re clear on what the assignment is, what the influencer is focusing on and how they are being paid, we need to get a bit tighter to protect the brand and the influencer. Specifically:
• FTC compliance: In the United States, influencers must comply with the rules of the Federal Trade Commission. Many countries have similar rules that basically require clear and conspicuous disclosure when there is any meaningful connection (like payment or free product) between a brand and influencer. Your contract should clearly outline your expectations about disclosure.
• Content rights: While influencers typically maintain ownership of their content, brands can license that content either for defined time periods and uses or more broadly. But not defining this is a recipe for at best frustration and at worst a legal battle. The brand license needs to be clearly specified.
• Visual guidelines: Influencers are creating photos and videos, which can take a tremendous amount of time. Avoid after-the-fact confusion by providing detailed visual guidelines. Are flat lays okay? Can the content feature children? Be as flexible as possible, but be clear with what cannot be used.
Obscure But Important
The items that follow are often left out of influencer contracts but should always be considered. Some are more important for ongoing relationships than one-offs, but all are important.
• Behavior clauses: Since you’re aligning your brand with this influencer, what behaviors would cause you to end that relationship? P&G’s legal counsel suggested a “Continuity of Persona” clause, which can make sense for ongoing programs, particularly with well-known people. But all contracts should have basic behavior frameworks.
• Content removal: Some influencers delete branded content after a certain period of time. While this might have a limited downside for a 3-month-old Instagram post, it can have a big impact on a blog post or YouTube video that might provide real long-term value. Be clear in your contracts on the expectations here.
• Tracking and reporting: Does the influencer need to use specific URLs in their content with specific tracking embedded? Do they need to use a promo code? Tag a brand? Use a hashtag? However, you plan to measure this program, from basic to advanced, ensure that you clearly articulate the influencer’s role in that tracking.
• Amplification rights: A well-rounded influencer program syndicates or amplifies the influencer content that does well organically, ideally from the influencers’ own social accounts. If that’s what you intend to do, ensure that you have the rights to do so. Do you plan to run the content on brand social channels? Again, make sure those rights convey to the brand in the contract.
These 10 elements — from the obvious to the obscure — come together to form the ideal influencer marketing contract. Working with an influencer or a content creator is a creative exercise and a collaboration between two brands (yours and the brand of the influencer). If you treat it as such and delineate all your expectations in advance, the relationship will go much more smoothly, and you’ll mitigate the risk of future disputes.