Because influencer marketing is such a new medium, many of us aren’t quite sure how to go about it. While I and many other marketers have spilled a lot of ink on the more creative how-tos of influencer marketing, legalities aren’t talked about nearly as much. However, legal issues are just as important with influencer marketing as they are with everything else. The difference is that there’s less standardization, both in terms of what is produced, how much is paid for it, and many other details.
In this article, I hope to help shed light on one of the more important legal aspects of influencer marketing: an influencer contract. We’ll talk about what it is, why it’s important, and how to put one together. As always, this guide is not a substitute for legal advice.
What is an influencer contract or social media influencer agreement?
An influencer contract is the agreement between an influencer and the brand who wants to collaborate with this content creator. The agreement governs the terms of the collaboration, including the content or product to be created, compensation received, and legal protection for all parties. As an adjunct to influencer marketing, the influencer contract typically revolves around social media activity.
Furthermore, the contract should indicate where and how any disputes should be resolved, to avoid unnecessary litigation. It is critical to have an influencer contract with all the content creators involved with your influencer marketing program. Finally, it needs to be something that’s legally enforceable as necessary.
Why do you need an influencer contract?
With influencer marketing being such a personal, informal approach to customer outreach, isn’t it just easier to do everything informally? Actually, no. Working without an influencer contract is asking for trouble. While some influencer marketplaces handle a significant amount of the issues for you, anything done directly needs a custom contract. There are several reasons for this.
Any time there’s money involved, there needs to be a legally binding agreement. After all, both parties need to ensure that the other one upholds their end of the bargain. Nothing is worse than someone getting scammed. Not only that, but most corporate entities require a contract any time money changes hands. Finally, you need to protect yourself from lawsuits to the greatest extent possible.
Because people are people, a contract is useful on several practical levels. For one, people like to know what the deadlines are for both content and post-production payment. For another, there are a lot of places where miscommunication and misunderstandings can really mess up collaborations. While there’s no way to avoid every possible mix up, you can reduce the chances of these being a major problem through an influencer contract. Done right, they’ll also tell your influencer where to reach out if he or she needs help.
What Sections Should You Include in Your Influencer Contract?
While most of us would love for an influencer contract to be a one page agreement, this is typically not appropriate. After all, the contract needs to cover every aspect of your business relationship, from the type of content produced and your rights to it, all the way to what happens if something goes wrong. In addition, you’ll need to ensure that the influencer complies with all legal requirements that surround influencer marketing and advertising in general. Otherwise, there could be consequences for everyone involved. Therefore, an influencer contract should include the following:
A detailed scope of work.
Your first priority should be to outline the scope of work to be performed, and what its purpose should be. This means specifying that this contract is entered into for the purpose of content creation or some other form of collaboration. Discuss if you’re going to use this as advertising on your own platforms/websites in addition to the influencer’s pages.
Aesthetic and branding guidelines
Depending on your purposes, there might be some branding required. For instance, most of us have colors that are used consistently throughout our advertising efforts. Depending on the use of the influencer’s content, you might specify that these branding elements be used. Alternatively, you might specify the inclusion of your company logo somewhere. These specs should be discussed at length and outlined carefully. However, it’s usually advisable to give influencers as much creative freedom as possible while protecting your brand.
What content will the influencer be publishing and where? How many times?
In this section, you will specify the kind of content to be produced, along with any agreed-on features. That means the section should be specific: saying you’re paying for a YouTube video isn’t always enough. Instead, specify if you want him or her to do a giveaway, a tutorial, or something else you’ve decided on. The same should hold for any other content format.
Next, mention where the content should be posted, and how many times it needs to be posted. For our YouTube video example, this is probably going to be a one-time addition to their YouTube channel. However, you might also reserve the right to republish it on your website or some other approved location. Instagram posts might be done more than once over a period of time. More frequent posting can also involve more than one content piece; if so, specify.
When will all of this need to be done by? Any other timeline and milestone details?
Like all projects, your collaboration should have a deadline. Depending on the type of collaboration, this can be one deadline or a series of several milestones. With Instagram posts, you might request a new photo each week for a month. A YouTube tutorial might need to go into production by a certain time, and any follow-up a couple weeks later. Whatever those parameters are, you need to specify them in the influencer contract.
Any other specifics relevant to the influencer campaign that the influencer needs to know?
One of the best ways to make sure nothing gets left to chance is by including it in the influencer contract. For instance, you might need certain hashtags used in the caption or text. Specifying certain @user mentions is also common; this is often the social media account for your brand, or maybe a member of your leadership team. Whatever it is, be sure to include specific provisions to ensure compliance.
List of things you don’t want the influencer to talk about or include in content
As with positive requirements, your influencer contract should specify anything that you want them to avoid. For instance, depending on the campaign and its goals, you might want the influencer to avoid mentioning a competing brand or product. On the other hand, this might be different if you want a product review to compare your product with the competition.
Another thing to mention is if there is a potential for off-brand imagery. One way there can be off-brand imagery is in fashion: depending on the brand/product, there can be fashion shots that come across as trashy. Product type and your brand image can help determine what’s appropriate.
Will content require pre-approval by brand before publishing?
In some circumstances, you might want to approve the content before it’s published. This might be due to a number of factors, such as sensitive branding concerns or a recent history of your customers reacting badly to influencer content. If you go this route, be sure to specify this as part of the influencer contract. You’ll also want to make the approval process as clear as possible to avoid any confusion.
Access to influencer data
If you will require access to influencer data other than the content piece, this also needs to be mentioned. For instance, some brands want social media login information so that they can see what notifications are being generated by the content. Other access requirements include Google Analytics, social media analytics, screenshots, and anything else that can help measure campaign success. Of course, printouts and emails with the same information may also be sufficient.
Mention Compensation details
Central to any influencer contract is the compensation details. Be sure to specify how much an influencer will be paid, and in what form (commission, flat fee, product, etc). Then, say how it will be paid out and when they should expect to get it. This way, everyone knows what’s expected and when.
Other Key Terms You Need to Include in Your Influencer Contract.
These can vary based on the type of collaboration, the influencer involved, and other factors. Be sure to include them as part of the influencer contract, or you risk not being able to enforce it. Most of it is boilerplate, in that they will have seen it before. Some are required, while others are discretionary.
Federal Trade Commission (FTC) guidelines compliance
This one is critical: failure to comply with FTC guidelines is a great way to get yourself or the influencer fined. Luckily, the guidelines are relatively easy to follow.
Include cancellation / grounds for termination terms
While cancellation is rare, it’s important to include provisions for it. Especially with larger collaborations, unforeseen circumstances can cause your strategy to change before completion. Likewise, you might need to terminate a contract when the influencer becomes a liability rather than an asset. Finally, the influencer might have something come up which forces him or her to change plans.
Don’t want your influencer working with competing brands? If so, this needs to be specified in the influencer contract.
Copyright / intellectual property content rights
In this section, you need to talk about who owns the content. Is the influencer retaining ownership while granting you exclusive rights to use it? Or do you own it, but allow the influencer to use it? Other options may be possible.
Standard Contract Clauses
Here, include any boilerplate your attorney says needs to be included. It can be as simple as “this is an agreement between X and Y,” or it can be much more complex.
Legal term of contract
How long will parties be bound by these terms? Some clauses will be temporary, while others (like copyright) will have much longer terms. Your state may have limits on certain terms.
Non Disclosure Agreement / Confidentiality
This can be a major sticking point. While you’re obviously making the business relationship public, you may not want certain details publicized. For instance, some companies don’t want people to know how much they pay influencers, and vice versa. Also, you’ll want to ensure they don’t reveal any trade secrets or confidential information they learn. Be sure to include all of this in your influencer contract.
How would you like to get sued by the influencer? Some contract disputes may be unavoidable, but it’s always best to cover your bases as thoroughly as possible.
No assignment allowed
In other words, the influencer can’t assign his or her rights to another party. However, you may need to specify that if the company is acquired then the new company can take the contract over.
Standard Force Majeure clause
Force Majeure is the unforeseen situation that prevents parties from fulfilling the contract. One excellent example is the COVID-19 lockdowns that has kept a lot of social gatherings from taking place. There were also a lot of Force Majeure declarations related to shipping and commodities for the same reason. Other triggers might include a natural disaster or outbreak of war.
Links to Social Media Influencer contract Forms & Templates
For a simple contract that can be filled out online for free, check out this Jotform example. Keep in mind, it only has the most basic provisions included.
Another free option is available as a Word document download from Influencer Marketing Hub. This example is relatively comprehensive.
Want all the typing done for you? Check out this template from Wonder Legal. It is sent to your email after completion.
Lilian Raji Agency, which specializes in marketing, also has this example contract on their website. It’s a free PDF, but doesn’t allow you to fill it in.
Here’s another fillable PDF influencer contract from Hello Bonsai. It’s free to use, and very comprehensive.
Our friends over at Hire Influence have prepared this free PDF contract, as well. It is simple, yet to the point.
Another option comes from Approve Me. This is a paid service that provides legal templates, but you can download your first contract for free.
This simple influencer contract by PR Agency primarily specifies that an influencer must abide by regulatory guidelines, and provides for the agency to back out if they don’t.
Finally, if you have Kindle Unlimited, this sample from my friend NG Gordon is downloadable from Amazon.
Requiring an influencer contract might seem like a bad idea. However, for many practical and legal reasons we always recommend that you use one. Even if it’s just the boilerplate provided by an influencer platform, it helps protect you and the influencer. And as always, when in doubt consult with a lawyer.
Hero photo by Kelly Sikkema on Unsplash