Influencer Contracts Can Be Complicated - Here's What You Need to Know

It's common knowledge that brands need to define their relationship with influencer partners and to do that, most will engage a legal team (or influencer agency with contracting capabilities) to define their relationship with influencers. That said, we find few brand-side legal teams are in the weeds enough when it comes to influencer marketing to ensure all the bases are covered when writing an influencer contract. Below, we're breaking down the three sections that every influencer contract should include and the key terms that must be covered in each. 

Defining the Relationship 

This section of an influencer agreement should include: 

I. Basic Contract Terms

Similar to the one's between two companies, every influencer agreement should cover the basics including: 

• Roles of each party involved
• Start date and term of the agreement
• Definition of the working relationship between the two parties
• Confidentiality expectations
• A non-compete clause
• A termination clause, including common reasons the company may terminate for cause and pre-defined remedies for these common reasons
• Conflict resolution terms (process by which all other issues not explicit listed with remedy in the termination clause may be resolved)

>> CONTINUE READING: 3 Areas of Influencer Marketing Brand Lawyers Struggle With <<

II. Delivery Requirements

• How should the work be delivered? In what format? By when or within what timeframe?  

A common mistake here is only putting a deadline on when content must go live. Ex. Does the influencer also owe data or screenshots of their Instagram Story results within 48 hours of posting?

III. Rights to the Work

• Details on licensing rights and copyright ownership should be explicit covered

WATCHOUT: Do you really need to own the copyright? And will your definition of the relationship allow for that anyway? Most brands will hire influencers as third-party contractors and since you're asking them to create content to publish on their own channels, you really aren't asking for "work for hire". And if you're not, then owning the copyright isn't an automatic assumption of your relationship with the influencer.  

But does it need to be?  Most brands don't need to own the "copyright" to the work anyway. That's costly and requires management to ensure no copyright infringement. What's more, most sophisticated influencers will charge you more to turn that copyright over. Instead, we suggest requesting a simple, unlimited use license. One that is not time or medium bound and allows the influencer to maintain the copyright with some limitations, such as not being able to sell it to someone else.

IV. Payment Terms

• What are the expectations for the influencer to get paid? What must they have done?
• Reference your common termination scenarios and be sure any docked pay as a result is also reflected here.
• By when and how will the influencer get paid?

V. BEHAVIORAL CLAUSES

• Professional and behavioral expectations

Another common oversight. We see brands covering issues like "not disparaging the brand" but situations where an influencer partner might be disparaging other brands they've worked with, thereby creating questions of authenticity in the minds of their followers related to your partnership as well.

What about the influencer who's partnering with a baby brand in her Instagram feed while using her InstaStories to share how child protective services is investigating her and has put her on an improvement plan? Yes, this happened... 

Assignment Overview

This section of an influencer contract should include: 

I. The Pitch

• Go ahead and put straight into the contract the why behind the partnership. 
• What are the expectations for how your brand and the influencer's brand align?
• Why are you engaging them? Why is this partnership relevant to their audience?

II. The Brief

Get in writing your expectations and their acceptance of:

• Assignment goals
• Key messages that should be covered
• Deliverables, such as the number of original photos, the number of social posts, any data they must deliver post publishing, etc. 

Assignment Expectations and Requirements

This section of an influencer agreement should include: 

I. Execution Notes

• When, where, how many, how often, posts by channel
• Specific post formats required (an image post? a link-attached post? a carousel post?)
• Any best practices that should be followed (clear CTAs, use of the "handshake tool", etc.)

II. Visual Guidance

• Are overhead product lays okay?
• Must bags be stuffed to ensure they look full and authentically in use?
• Can kids be in photos?
• Do subjects need to smile?

III. Tracking Details that can affect campaign outcomes or measurement

• Must tracked URLs be used?
• Coupon codes?
• Tracking pixels embedded?
• A certain hashtag?
• A certain handle tagged?

IV. FTC Requirements

Most brand contracts these days will specify that FTC guidelines must be followed, however, given the lack of standardization when it comes to interpretation of those guidelines, we recommend providing clear dos and don'ts related to the brand's expectation for implementing those guidelines.  Need help? Check out our cheat sheet on FTC compliance and the list of common FTC mistakes we see brands and influencers make when attempting to comply.

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Looking for an influencer marketing agency to help you execute a best-in-class influencer program? Carusele would love to help!  

Don't need full-service but rather help with some of the blocking and tackling? We offer influencer marketing services for in-house teams as well. 

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