An influencer contract is a newer type of agreement that companies can use to promote their products through social media. Although new, it does share many of the core characteristics of a business contract. Make sure these 20 terms are included before inking the deal with the latest social media sensation.
- It should be a written contract, not oral nor verbal.
- Term: A start and an end date.
- Scope of Work specific platforms, frequency, music, message, visual effects, hashtag/tags, etc.
- Compensation, including payment amount and process of payment, and also what is not compensated, like the use of name, image, or likeness (NIL).
- Indemnification (or moral clause): Influencer’s work is truthful, non-fraudulent, and can be documented. Ensure that the influencer will reimburse the agency or brand from wrongful conduct if the agency or brand gets sued because of the influencer’s actions.
- IP ownership rights: Influencer’s NIL shall focus on (i) influencer’s full name or any abbreviation or derivative thereof, whether trademarked or not (ii) an image, photograph, or drawing and/or a sequence of images or video of influencer, and/or (iii) a recording of influencer’s voice. Influencer understands that NIL may be edited, copied, exhibited, published, or distributed at the discretion of company.
- Approval: final authority to approve before distribution waiver of any right to inspect or approve the finished product wherein NIL appears publicly.
- Content Retentions Rights: Who owns what?
- Applicable state, federal, global laws and regulations, such as the FTC’s “clear and conspicuous” disclosure.
- Exclusivity: define category/competitors.
- Confidentiality Clause: protect terms and conditions.
- Delivery Format: means of delivering final product.
- Derivative Content Rights: final rights to the final product or new asset that comes from original campaign.
- Metrics: keep track of them to measure ROI.
- Liability insurance: require the influencer purchase and maintain liability insurance.
- Venue Law: disputes will be resolved in a specific location.
- Governing Law Clause: disputes will be resolved by applying specific laws (national and global).
- Mediation/Arbitration: establish dispute resolution process.
- Attorney Fees Clause: prevailing party reimbursed.
- Signature: Physical signature on the agreement (original, copy, or digital version of the conclusion are all valid).
This article is part of a larger series on how influencers and in-house counsel can work together. Read "Under the Influence" for unique risks facing the company's reputation and brand and read an interview with Brad Shear, an in-house lawyer with over a million followers on TikTok.
