How to Draft an Influencer Contract, Advice from a Social Media Lawyer
This blog is written in partnership between MODERNSPEAK, a collaborative influencer marketing agency, and DOBRMAN Law, a social media law firm.
As influencers or content creators build their following, they start to attract brand deals, which become an important source of revenue. But depending on the size of the influencer, the brand deals and the influencer contracts that come with them can be complex and impose strict obligations.
The smaller the audience, the less negotiating power the influencer has. This can make for deals that are not reflective of the time and effort an influencer puts into a campaign. As the influencer gains a substantial following, they gain negotiating power against the brand and can demand better terms.
It's important to work with a lawyer who understands the social media legal landscape. They may call themselves an entertainment lawyer, an intellectual property lawyer, or, specifically, a social media lawyer.
Working with the right lawyer can help the influencer get better terms such as a higher fee, intellectual property ownership, a shorter exclusivity period, and a less intrusive license.
In the sections ahead, I’ll highlight what to include in an influencer contract, how to navigate confusing legal terms, common issues we often encounter, redlines we request, and answer a few FAQs to help you put together a comprehensive draft.
What to Include in an Influencer Contract
An influencer contract is an important tool for ensuring a fair and beneficial relationship between the influencer and the brand. This document should be comprehensive and tailored to address the specific nuances of each partnership.
Here are the key components that should be included:
- Parties Involved: Clearly outline the entities entering into the contract. This includes full legal names of the influencer and the brand, relevant contact information, and details about any representatives or agencies acting on their behalf. This ensures clarity on who is accountable under the terms of the agreement.
- Scope of Work: Define the precise responsibilities and expectations of the influencer. This section should detail the nature of the content to be created, the number of posts, types of media (blogs, videos, social media posts), platforms involved, and any specific messaging or themes that must be adhered to.
- Deliverables and Deadlines: List all the deliverables along with their respective deadlines. It’s crucial to be specific—include the frequency of posts, ideal timing for posting (considering product launches or special events), and the format of the content.
- Compensation: Describe the payment terms clearly, including the total amount to be paid, the schedule of payments, and the method of payment (cash, product, services). Conditions that could affect compensation, such as achieving certain performance metrics, should also be stipulated.
- Rights and Usage: Clarify the ownership and usage rights of the content produced. Detail the duration for which the brand can utilize the material and the specific ways it can be used. This should also address any rights the influencer retains and any restrictions on the content’s future use by either party.
- Exclusivity: This clause should prevent the influencer from engaging with competing brands for a specified duration. Define what constitutes a competitor and set the length of the exclusivity period, ensuring it is reasonable and mutually beneficial.
- Disclosure and Compliance: Guarantee adherence to legal standards, such as the FTC guidelines in the U.S., which mandate transparent disclosure of sponsored content. This section should prescribe the method and frequency of such disclosures.
- Termination Conditions: Outline specific conditions under which the contract may be terminated by either party. Include scenarios like breach of contract, required notice periods, and the implications of premature termination.
- Confidentiality: Protect any sensitive information or trade secrets shared during the partnership from disclosure to third parties. This clause is vital for maintaining trust and integrity between the involved parties.
- Liability and Indemnification: Specify the obligations related to legal issues that may arise from the influencer’s content or actions. Include indemnity clauses to cover potential legal actions connected to the content or the influencer’s conduct.
- Dispute Resolution: Detail the agreed-upon method for resolving disputes related to the contract, including the governing law and the venue for addressing such disputes.
- Amendments: Emphasize that any modifications to the contract need to be documented in writing and consented to by both parties.
Influencer Contract Checklist
Download our free influencer contract checklist to streamline your next campaign.
Legal Terms Used in Influencer Contracts
The intellectual property and license clauses are something that most people, other than IP lawyers, find very confusing. There are dozens, or even hundreds, of different toggles to these clauses that could either make them say what you want or say what you definitely don’t want.
For example, you’ll see language like: “Creator gives Brand an exclusive, fully paid up, worldwide, transferrable, royalty-free, commercial license for paid and commercial use, reproduction, distribution, transmission....” What do all those words mean?
They’re all different toggles to a license that should be negotiated between the parties. They all have legal consequences and shouldn’t be accepted unless you know what they mean.
Most of the toggles should have a price tag attached and the brand should be paying for them.
For example, an exclusive license should be more valuable than a non-exclusive license; and a commercial license should be more valuable than an organic license.
Common Issues We Encounter in Influencer Contracts
The most common issue I see is that the contracts are stacked heavily in favour of the brand. Oftentimes the contract is there to protect the brand and give the brand advantages while only imposing obligations and penalties on the influencer.
This is more often the case when the influencer has a smaller audience, and as such, less negotiating power. As the influencer gets a larger audience, and more negotiating power, the deals get better.
But regardless of the size of the influencer, the first contract the brand sends is rarely one I recommend signing. It’s possible to receive a balanced deal the first time, but unlikely in my experience.
It takes redlining and negotiations to bring the contract to one that I would recommend signing. It’s very important to work with an experienced lawyer who understands the social media sector to get a good deal otherwise you could lose control of the situation.
Common Requested Redlines or Amendments
Typically, the brand is the one sending the contract so it’s already in a form that they want. When I redline, it’s usually for the influencer.
You can think of the brand’s desired redlines as the mirror of everything I list below. Every influencer contract is different and unexpected things pop up all the time, but I’m typically reviewing the contracts with the following lens:
Limited Exclusivity
I try to limit the length and the scope of a brand’s exclusivity. If they are not willing to limit these things, I negotiate heavily so that the influencer is being compensated accordingly as exclusivity is a valuable bargaining chip for the influencer and they should be paid for it.
Limited Termination
Typically, the brand wants a wide discretion to terminate the contract. The problem is, the influencer has already committed to planning, revising, and producing the content.
I try to limit the termination powers of the brand so that they can only get out of the deal in a very specific set of circumstances.
Creator Owns the IP
There’s often a bit of tug-of-war between the influencer and the brand as to who owns the IP. Sometimes the brand knows they’re only paying for a license, other times they think they’re outright buying the content from the influencer.
If the brand wants to own the IP, they should be paying a higher price than if they were just getting a license.
License Terms are Limited
Usually the brand wants a much more expansive license than what they’re paying for. They want exclusivity, they want the license to go on indefinitely, they want commercial usage, they want image rights included.
When I’m redlining, I’m slicing and dicing the license clause to be pro-influencer because at the end of the day, the content, and their license, are the products, and they shouldn’t be given away freely.
Creator Retains Their Moral Rights
Moral rights, or “author’s rights” are an often forgotten but important intellectual property right. The influencer typically wants them for two purposes.
First, the influencer should receive an author’s credit anywhere the brand posts the content.
If the brand posts it on their website, for example, the brand should not be able to say they are the author of the content; they should credit the influencer and provide a link to the influencer’s channel.
Second, influencers want to retain their moral rights because otherwise, the brand may be able to defile their content in a way the influencer didn’t want.
For example, a progressive content creator may find that their content was used to elect a conservative politician, or vice versa.
Reasonable Approval Process
Oftentimes the brand deal includes language that requires the influencer to keep revising the content until the brand is happy. This can be an exhausting experience for creators with no additional compensation for their work.
When I’m redlining, I try to limit the number of revisions the brand is entitled to, and only allow revisions when the creator deviates from the creative brief.
Exclusivity in Influencer Contracts
Exclusivity clauses are strategic tools that can significantly impact the professional dynamics and financial outcomes of all parties.
Determining Exclusivity Terms in Influencer Contracts
Exclusivity is usually based on how big the deal is. It’s something that the brand should be paying for if they want it.
With a smaller fee, the brand’s exclusivity should be limited to only their immediate competitors and only during the term of the license.
With a larger fee, the brand may rightfully expect that they should have exclusivity for a longer period, perhaps even perpetually, and as against any similar product category.
Implications of Exclusivity for the Influencer & the Brand
For the influencer, it’s a list of competitors of the brand that the influencer is not allowed to work with. If the main portion of your revenue is in brand deals, you should see exclusivity as blocking off potential revenue streams; opportunities you lose by working with a specific brand.
If you give exclusivity to Coca-Cola, for example, you cannot work with Pepsi. This is something that Coke should be paying for. It’s typically not to be given up by the influencer without negotiating a high fee.
For the brand, they typically want a very broad exclusivity against every competitor in their category and similar categories. They may also want no brands featured in the influencer’s content for a period of time, regardless of if they’re competitors.
They do this because they want to be the only product in the audience’s mind. If the audience sees too many trademarks then the brand’s trademark could get lost in the mix.
The brand is also very worried about PR. They don’t want to be associated with other brands, topics, or people that could reflect poorly on themselves via association. The more the influencer can showcase other brands, the more likely a negative association could happen.
The Importance of Adapting the Contract to Your Specific Needs
Every influencer-brand partnership has unique aspects that must be considered when drafting a contract.
Tailoring the agreement to fit the specific needs of both parties can prevent misunderstandings and ensure a smooth collaboration. By paying close attention to the details and adapting the contract accordingly, both influencers and brands can safeguard their interests and foster a successful professional relationship.
Find Influencer Contract Clarity with MODERNSPEAK
Creating influencer contracts can be confusing. Having a knowledgeable and proactive partner can make a world of difference. MODERNSPEAK represents talented content creators, ensuring every contract that crosses our desk is assessed by the social media lawyers at DOBRMAN Law.
Looking to elevate your brand or ensure your influencer marketing campaign goes off without a hitch? The team at MODERNSPEAK is dedicated to crafting partnerships that truly resonate and deliver results. Reach out to us by calling 403-605-7846 and let’s create something remarkable.
FAQ
What is the role of an influencer management agency?
An influencer management agency connects influencers and brands, ensuring both parties achieve their marketing and business goals effectively. From talent scouting and management to contract negoatiation and campaign analytics, influencer management agencies allow influencers to focus more on content creation.
Does an influencer need a manager?
While not every influencer may require a manager, having one can provide significant benefits—including professional advocacy, providing access to opportunities, and negotiation leverage—especially as an influencer’s career starts to flourish.
Ultimately, whether an influencer decides to engage a manager depends on their personal career goals, the scale of their operations, and their comfort with handling business matters.
This blog is for general information and entertainment purposes. It is not intended to be legal, business, or other professional advice to be relied on. Do not make or refrain from any decisions on the basis of this blog. Please contact DOBRMAN Law to receive advice from a social media lawyer.
