Australian model and influencer Nadia Bartel lost two major brand partnerships after a video was shared online of her breaching lockdown restrictions and allegedly snorting white powder in a bathroom. The video even sparked a trend on TikTok #PutyourkmartplatesoutforNadia.
One of those brand partnerships was a multi-million dollar ecommerce supplement brand JSHealth Vitamins. They ended their contract with her following the public scandal.
Nadia Bartel allegedly walked away with a $50,000 severance in exchange for dropping any affiliation with the JSHealth Vitamins brand. This was a huge cut from her original contract total of $250,000 for a long-term social media campaign.
The lesson here: An influencer contract acted as a source of protection for the JSHealth Vitamins brand. While Bartel was left to rebuild her reputation, the brand was able to quickly cut ties with her before it became damaging to their brand.
Want to know if your influencer contract is fit for purpose? Are you looking to build your own? You’re in the right place.
We’ll discuss the most important legal aspects of an influencer contract, touch on the Federal Trade Commision’s (FTC) rules about influencer marketing, and what you need to include when you review or draft your own influencer agreements.
It‘s important to mention: While we’ve spoken with our advertising attorney Robert to put together this legal information about the influencer marketing landscape, he’s not your attorney — so we’re not giving any specific legal advice. If you have legal questions about your situation, you should consult with your own attorney.
Let’s get started.
What Is An Influencer Contract?
An influencer contract is a written legal document that covers important conditions, obligations, and details of the partnership between the influencer and the brand.
The purpose of an influencer contract is two-fold:
- To ensure both parties (the brand and the independent contractor) will follow the terms and scope of work set out in the agreement
- Protects you from potential lawsuits that could arise if things go south
An influencer contract might also be referred to as an influencer marketing agreement, social media influencer agreement, or influencer service agreement.
How Do I Know if I Have a Good Influencer Contract?
A successful partnership between a social media influencer and a brand relies on clearly defined roles and expectations. It’s also important to ensure you are outlining what your expectations are from the influencer in meeting the requirements of the Federal Trade Commission (FTC) — the governing body to protect consumers from deceptive advertising.
When partnering with a social media influencer or brand ambassadors, the team at Kynship use two documents to solidify the influencer relationship, manage expectations, and ensure they are getting the best influencer content:
- The Influencer Brief — which outlines the creative scope of the project such as the type of content, pricing, deliverables or number of posts required, and the key messages that need to be considered
- The Influencer Contract Template — which focuses more on the duties of the content creator, payment terms, approval processes, confidential information, exclusivity rights, governing law, applicable laws such as FTC guidelines, payment details, expected time periods, and non-disclosure agreement terms (NDA)
Download Our Influencer Contract Template
Use our agreement template to level up your social media influencer contracts.
The Most Important Legal Aspects of An Influencer Agreement
... according to our advertising attorney.
Usage & Exclusivity Rights
When it comes to content creation, the default rule you must always remember: Whoever created the content, owns the rights to that content.
With one exception: That default can be changed through something like an influencer agreement.
Want to own all the content outright? You might find influencers push back on that and prefer to keep content rights, but grant some kind of license to your brand. You want to be careful and think about what this license grants you.
- What goal are these influencer posts helping me achieve?
- What social media platforms can I share the content on?
- Can I combine the instagram posts with other content on a different platform?
- How long can I run the content for?
- Is this a one-off or do I need the content to repurpose for other campaigns?
This is what you want to think about when drafting the usage rights part of the agreement. You can avoid some kind of dispute over copyrights or other intellectual property.
Rights of Publicity Clause
An issue that’s related to usage rights has to do with the right of publicity. You want to make sure there is a publicity rights release in your influencer agreement. The right of publicity protects everyone from having their name or image used for a commercial purpose without their consent.
So if someone takes a picture of me, uses it in an ad and didn’t have my permission, then they have violated my right of publicity. Depending on where you live, those claims can be easy to bring and very difficult to defend against. Not to mention, expensive to defend.
So having a publicity rights release within your influencer agreement is crucial. You don’t want to get into some kind of dispute over “oh you used this picture without my consent.” It’s an easy way to protect yourself against an unnecessary headache.
FTC Disclosure Requirements & Guidelines
Now let’s talk about the Federal Trade Commission (which I‘ll refer to as FTC). FTC’s rules affect the issues you want to think about when you’re putting together an influencer agreement.
There’s two main concepts we’re going to cover in respect to the FTC:
- The rule for all advertising to be truthful
This basic foundational rule is making sure that you‘re not engaging in false advertising. In the influencer context, the FTC wants to make sure that influencers are being honest and truthful about the product.
A simple example of this rule in action: If an influencer is going to review one of your products, the influencer needs to have tried and used it. And, what they are saying is reflecting their truthful beliefs about the product.
One layer of protection you can build into your influencer agreement is making sure what the influencer is saying is truthful. Have the influencer agree that the statements are going to be truthful and reflect their honest beliefs. If they don’t follow your guidelines, this will give you some coverage and avoid exposing your liability.
Some guidelines you can work with:
- The influencer can’t say something is amazing, if you thought it wasn’t good. Even if you were paid.
- The influencer can‘t talk about an experience with a product they haven’t tried.
- The influencer can’t come up with claims that the brand can’t even back up (i.e this is scientifically proven to do x y z).
2. FTC’s disclosure requirements
Anytime there is a relationship between a brand and someone endorsing that brand (which the FTC calls a ‘material connection’) that material connection needs to be disclosed in any advertising. It doesn’t necessarily have to be cash payments. It can be anything that will affect the credibility that a consumer places on the endorsement they are viewing.
- If you pay someone to post — that financial relationship is a material connection that needs to be disclosed
- Giving someone free product
- When an influencer is endorsing a promotion or sweepstake situation
- It doesn’t even have to be financially related at all. If you have a family relationship with the brand, employer/employee, all of those connections the FTC requires them to be disclosed.
How do influencers need to disclose influencer posts to keep the FTC happy?
The most commonly used way to do this is use #ad or #sponsored to satisfy the FTC’s requirement. The more specific and clear you make it, the more compliant.
The FTC.gov guidelines recommend the following ways to disclose:
- Place it somewhere where the disclosure can’t be missed and is visible
- Don’t mix it into a group of hashtags or links
- If in a video, the disclosure needs to be in the video, not just in the description
- If in a live stream, the disclosure needs to be repeated periodically
At the end of the day, FTC is concerned with making sure people understand when they are being advertised to. In your influencer agreement, make sure you have something where the influencer agrees at a minimum to follow FTC’s rules about this.
It’s probably a better idea to not just have: I agree to FTC rules
Instead: Provide a link to the FTC’s guides and be more specific. Define what you want a disclosure to look like. The reason why this is important, it’s not just the influencer who is liable if they screw up.
The FTC says everyone involved at every step of the ad, no matter how remote it may seem to you, you (the brand) will potentially be liable.
Compliance is everyone’s responsibility according to the FTC. The brand, the influencer, any agency, even a web designer if they build a webpage is potentially on the hook.
Another important element to think about is whether you require approval rights with respect to the branded content you’re receiving from the influencer.
From a legal standpoint, the safest way is to approve every content piece before it goes live. Yet, this isn‘t necessarily practical. You can’t sit there and pre-approve every single post that goes up.
At a minimum, you should have some kind of spot-checking to show you are actively taking a role in ensuring you comply.
When the FTC investigates brands and see there is some kind of monitoring or compliance protocols in place, they are less likely to turn that initial investigation into a full blown lawsuit. Of course, there’s no guarantees and it’s hard to predict what the FTC actually does. But they have said they want to see some kind of monitoring in place. If it looks like the brand hasn‘t even thought about monitoring the influencer marketing campaigns, it will be a different story.
So, consider whether you want that pre-approval. At a minimum, have some kind of monitoring practices in place to make sure the posts are making the disclosures they need to make.
The morals clause helps you think about the worst case scenario or exit plan. Remember Nadia Bartel’s story I mentioned at the start? The morals clause allows you to end/cancel the relationship with the influencer if they do something illegal, gets into some kind of public scandal, or is engaged in some behavior that could reflect badly on the brand. You’re able to terminate the relationship and avoid that spinning off its own litigation.
When considering your morals clause, think about how broad you want it to be. You might want to have it cover acts/behavior the influencer did in the past, but get discovered later. Or have it broad enough to include conduct by the influencer’s immediate family. For example, if their spouse does something terrible, maybe you want to cut ties with the influencer in that situation.
A morals clause can protect you in that unexpected worse case. It’s definitely worth considering putting into your agreements and thinking about how broad you want it to be.
An influencer contract is an essential legal document that protects your brand and the influencer. We’ve provided an expansive influencer contract template you can download to help you customize to your own situation. Just remember to get specialist advice from your own attorney.
Use the template to ensure you are both on the same page when it comes to expectations and how the relationship works.
Think about what usage rights you need to promote the influencer content, where you want to post it, and how long you need the rights to it.
Give the influencer very clear, specific advice on what they need to do in terms of following FTC guidelines for advertising disclosure.
Decide what type of approval process you are comfortable with, to keep yourself out of trouble if the FTC wants to see evidence of you approving posts for advertising purposes.
Also, how broad do you want your morals clause to be in terms of how the influencer conducts themselves and their relationships? Make sure you are covering yourself if things don’t go to plan and you need to end the relationship swiftly without facing litigation.