Increasingly, we’re asked to advise clients in respect of marketing partnerships with online personalities and social media influencers. The business case for partnering with an influencer with a staggering number of followers within a brand’s target market can be compelling. Often though, businesses can risk doing significant damage to their brand by rushing to enter into such partnerships, particularly if they fail to ensure their brand aligns with the values of the influencer and neglect to properly record the parties’ respective obligations in a formal agreement.
Whilst not an exhaustive list, below are some important matters which should be carefully considered and dealt with in an Influencer Agreement.
What will they do?
Record precisely what the influencer’s role is and what they are expected to do. Merely inserting generic statements like ‘brand ambassador’ or ‘promoting the company’s products’ will not do.
Be as specific as possible. For example:
- How many posts per week?
- On which platform are they posting?
- Are they obliged to tag the company or others?
- Are they required to provide a product description or mention product benefits?
- Are they obliged to link the website?
- How will the content be made up (photos, videos, shorts etc)?
- Will the post/photo locations be restricted?
- Do they need to increase activity during a particular campaign or at certain times of the day?
What will you get?
As distinct from what the influencer does, what you will get from the arrangement is also important to understand and properly document.
Obtaining data and metrics from the influencer to ensure you get the desired promotional benefit and reach can be important. Thus incorporating an obligation to provide statistics that the influencer can access on posts can be vital to furthering a brand’s marketing strategy and also getting access to important data about your target audience.
It may also be wise to incorporate provisions in the agreement that allow for an early termination of the arrangement where such metrics don’t meet minimum baseline reach (or where the influencer doesn’t provide that info).
Form of Payment
What will you be giving in exchange for the influencer’s services? It is integral to precisely record this in a formal agreement. Where you are giving product or services in exchange for the influencer’s services (rather than a cash payment) you may want to incorporate some restrictions on what they can do with those items – for example, a restriction on gifting, disposing or selling those items.
Further, where you are paying the influencer by giving them access or use to a valuable product or asset (which they must return at the end of the arrangement), then some robust restrictions on the use, care and maintenance of that asset are important to include in your agreement.
Use of your brand
If you’ve worked hard to create a brand or trade mark and to align that brand with your target market, the last thing you want is the influencer portraying the brand in a way which does not fit with your strategy or sends confusing messages to their audience as to what your brand stands for.
Restrictions on use of your logo, locations at which photos can be used, co-appearance of other products in posts and the avoidance of promoting competing products can be vital inclusions in an Influencer Agreement.
In some circumstances, a regime for content approval (before it is posited) might be appropriate -particularly at the outset of the relationship when the parties are still formulating the best mode of creating effective campaigns.
If you have concerns about how the campaign will go, perhaps opting for a shorter term agreement or having a probationary period can mean that potential damage to your brand can be more easily contained if things go pear shaped.
Compliance with the law and the user terms of social media platforms
It is important to ensure that your influencer complies with the law as well as any terms set by the particular social media platform – particularly where such platforms have strict rules about paid content. Further, having appropriate prohibitions on vulgar, defamatory or discriminatory content in posts is essential. From a commercial perspective, it’s also important to do your research early on to ensure the influencer you are dealing with is likely to post quality content, conduct themselves in a professional manner and that they have a record of respecting past such agreements they have entered into.
Good advice is of course integral in navigating the influencer minefield. The involvement of a sharp legal eye is helpful – but guidance from legal professionals who have a commercial mindset and understand your business objectives is even better.
If you require assistance with formally documenting an arrangement with an influencer, contact Rankin Business Lawyers for practical, on-point commercial legal guidance.