Last Updated: March 15, 2023
Influencer Advertising Growth
Social media influencer marketing is a fast-growing advertising medium. In recent years, influencer marketing has become an increasingly popular way for brands to reach and engage with their target audiences on social media platforms. The global influencer marketing industry is actually expected to reach $23.5 billion in value by 2023, according to a report by Business Insider Intelligence.
What is an Influencer Agreement
A social media influencer agreement is a contract between a brand and an influencer outlining the terms of their collaboration. The Influencer agreement typically includes details such as the scope of work, compensation, deliverables, timelines, exclusivity, and legal responsibilities.
The agreement will typically outline the influencer's obligations to create content that promotes the brand or product, the payment amount and method, and the timeline for when the content will be published. Additionally, the agreement may include clauses relating to confidentiality, intellectual property rights, and disclosure requirements.
In general, a social media influencer agreement is a legally binding contract that outlines the expectations and responsibilities of both the brand and the influencer in their partnership. The goal is to ensure that both parties are clear about their roles and responsibilities and that they have a mutually beneficial relationship that aligns with their respective goals and values.
FTC Concerns and Challenges for Brands with Influencer Law
The FTC has issued specific guidelines for influencer marketing, including the "Endorsement Guides" and the "Dot Com Disclosures" guidelines. These guidelines provide detailed information on the requirements for brands engaged in influencer advertising.
The primary Federal Trade Commission (FTC) legal concerns and challenges for brands with influencer marketing are related to disclosure and transparency.
The FTC requires that influencers and brands disclose any material connection or financial relationship between them when endorsing a product or service. This includes sponsored posts, affiliate marketing, and other types of influencer marketing. The FTC has issued guidelines that require disclosure to be "clear and conspicuous" and easy for consumers to understand.
FTC legal concerns and challenges that brands face with influencer marketing include:
1. Disclosure: Brands need to ensure that their influencers are disclosing any material connection they have to the brand. This includes any compensation or free products they received in exchange for promoting the brand or product.
2. Transparency: Brands need to ensure that their influencers are creating authentic content that accurately reflects their opinions and experiences. This means that brands need to provide clear guidelines to their influencers and allow them creative freedom within those guidelines.
3. Monitoring: Brands need to actively monitor their influencer campaigns to ensure that the content complies with FTC guidelines and that all required disclosures are being made.
4. Liability: The single most significant legal concern and challenge for brands is legal liability. Brands may be held liable for any false or misleading claims made by their influencers, even if they did not have knowledge of those claims. It's also possible that Brand management may be held personally liable as well as the brand's business operation. Brands need to take steps to ensure that their influencers are not making false or misleading claims and that their disclosures are accurate and complete.
More Information: Endorsements
Typical Social Media Influencer Agreement Clauses
1. Content Scope. This clause outlines the specific content the influencer will create for digital distribution on the influencer's specified social media channels as well as the brand's social media channels. Content media is also specified regarding written content, images, and video.
2. Specified Social Media Channels. Channels may include any channels, including, for example, Facebook, Instagram, Snapchat, TikTok, Tumblr, Twitter, LinkedIn, or YouTube.
3. Campaign Description Specification. Campaign description and specification can vary depending on the nature of the collaboration and the preferences of the parties involved. Typical categories are listed below.
3.1 Campaign goals and objectives. This section will outline the overall goals and objectives of the campaign, such as increasing brand awareness, promoting a new product, or driving website traffic.
3.2 Campaign timeline. This section will specify the timeline for the campaign, including key milestones and deadlines for content delivery and publishing.
3.3 Campaign theme and messaging. This section will provide guidance to the influencer on the desired theme, tone, and messaging of the campaign, including any key messages or hashtags that the brand wants the influencer to incorporate into their content.
3.4 Campaign timeline. This section will specify the timeline for the campaign, including key milestones and deadlines for content delivery and publishing.
4. Exclusivity. This section may stipulate that the influencer cannot promote competing brands during the campaign or for a certain period afterward.
5. FTC Compliance. This section would outline the specific requirements for FTC compliance, such as the need for clear and conspicuous disclosures of any material connections between the influencer and the brand and how the Brand may conduct its legal responsibilities for monitoring the campaign.
6. Content Intellectual Property. Does the Influencer grant a license to the Brand for the content produced by the Influencer, or does the Influencer transfer and assign ownership rights to the Brand?
7. Name, Image, and Likeness. The Influencer may grant a non-exclusive license for the Brand's use for use of the Influencer's social profile links and/or handles in campaign-related correspondence and post-campaign case studies.
8. Influencer's Indemnities. The Influencer will typically agree to defend, indemnify, and hold the Brand harmless from and against claims related to violations of the Influencer's reps and warranties.
9. Compensation. This section would specify the compensation terms for the influencer, such as a flat fee, commission-based payment, or other arrangements.
We help brands demonstrate influencer compliance with influencer agreements and influencer compliance accountability programs.
How I Can Help You
I help brands limit their liability and protect their intellectual property rights with Social Medial Influencer Agreements.
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- Juris Doctor Degree, Wake Forest University School of Law
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