Influencers and your business: Getting the most out of their posts

The rise of social media has brought with it an explosion of influencer marketing. Whether their reach is global, national or regional, savvy influencers have grown increasingly sophisticated when it comes to monetizing their work. Similarly, influencer marketing is no longer just a tool utilized by international brands and ultra-exclusive service providers. We have recently seen influencer marketing campaigns launched by local manufacturers, performance venues and wedding planners, just to name a few examples.

Partnering with an influencer is not without risk and the best way to manage that risk often starts with a written agreement. Although most companies will be familiar with purchase orders, leases and other common contracts, many may never have seen an influencer agreement before. Whether you have received an agreement directly from an influencer or seek to prepare your own template, here are a few points to be sure the agreement covers.

1.  Deliverables. Carefully spell out the number of posts, the type of content to be posted, and where the content is to be posted throughout your marketing campaign. For example, will the influencer be posting across multiple platforms or limiting efforts to just one or two? Of course, the agreement should all specify how and when the influencer will be compensated for their services.

2. Approval Process. It is often critical to retain approval rights over influencer postings that reference your brand or products. Approval procedures should be spelled out in your agreement to be sure that you are satisfied with the content and brand usage, as well as to ensure that the campaign runs smoothly without unnecessary delays.

3. Exclusivity. Depending on the nature of the influencer’s content, it may be important to secure product or service exclusivity—at least for the duration of the campaign. In other words, you might not want the influencer promoting your direct competitor’s products side-by-side with your own.

4. Compliance with Applicable Law. Sponsored content must comply with all applicable laws and disclosure requirements including, in the United States, Federal Trade Commission regulations. Best practice is to contractually require the influencer to comply with all such laws and regulations.

5. Morals Clause. By partnering with an influencer, you are purposefully associating your brand with the reputation, opinions and voice of that influencer. Needless to say, it is critical to vet any potential influencer to be sure that the influencer’s personal brand is consistent with your own. However, public perception of an influencer can change quickly and unexpectedly. A morals clause preserves your ability to terminate the relationship should an influencer’s behavior negatively affect the reputation of your brand.

6. Post-Campaign Right to Content. Upon completion of the campaign, consider what happens to the influencer posts and content and who should have the right to use or access it.

These are just a few high-level concepts to keep in mind when you consider working with an influencer. Influencer marketing can be a highly personal and informal way to deliver your product message to customers, but you should negotiate and paper your agreement with any influencer as carefully as you would document any other important business relationship.    

Paul Durham is a business and intellectual property attorney in Sheehan’s Portsmouth office.  He assists companies, entrepreneurs, and creative professionals with varied corporate matters including business formations, complex domestic and international contracts, and intellectual property licensing.