Social media influencer contracts – what you need to think about

Posted on: May 25th, 2019

Social media use has exploded over the last decade, as have the number of brand owners looking to take advantage of it and promote their goods and services through online influencers. In some ways, influencer agreements are similar to age-old celebrity sponsorship agreements, however the nature of the influencer’s role in creating media, be that videos, images or posts, adds additional risks to brand owners.

As bigger brands engage with social media marketing, influencer contracts have got longer and more complex, especially in light of the Advertising Standards Authority increasing interest and its recent review of advertising rules in the area. There are a number of key points to think about for both brand owners and influencers.

Intellectual Property (IP)

It is the influencer’s account that the material will be often posted to, making it common for the influencer to own the material they create and license its use to the brand owner. If a media agency is acting as a middle man, the licence may need to cover both the media agency and the brand owner.

If the brand owner’s IP is to be used in the influencer’s work, a licence should be given from the brand owner.

Advertising rules

A brand owner may want the influencer to warrant that they will not breach advertising rules and set down requirements, such as the use of hashtags including #ad or #spon. The key point is that an advert must be obviously identifiable as such.

Deliverables

Set out clearly what is to be done by the influencer: how many posts are they to produce? What is the video length to be? What platforms are to be used – YouTube, Instagram, Twitch, Twitter, Facebook? What time are posts to be made? Is there a time when you would like posts to be made to match up with a campaign or take advantage of periods when followers are known to check social media?

Setting a promotion schedule and using agreed hashtags can help a brand owner maximise exposure, especially when combined with an effective marketing campaign.

Standards

Set out what should and shouldn’t be said by the influencer. It is common to prevent the influencer from posting about competing brands, products and services for a period of time. However note that restraint of trade clauses are unenforceable unless certain criteria are fulfilled.

Brand owner approval

Where possible, the brand owner may want to pre-approve material created or to be used by the influencer. Where an influencer is creating live material, more thought should be given to the standards put in place.

Right to take down

The brand owner may want the option to force the influencer to take down material they have posted in the event that negative publicity arises. An influencer may not want to take material down, as bad publicity for the brand owner may increase their views and followers.

Fitting the contract to the influencer

Influencers are getting used to having more detailed agreements, as brand owners seek to benefit from the large markets that can be accessed. However, a complicated agreement written in legalese may put off the influencer, who is more likely to be comfortable with the key terms being clearly set out up front.

Confidentiality

It is often a good idea to ensure that both confidential information received from the brand owner, and the agreement itself are kept private.

For more information on social media influencer contracts, please contact Andrew Jerrard within the Commercial & Intellectual Property team.