In Part 1, we discussed how companies rely on social media influencers to promote their products and services online, and certain items to consider when drafting an influencer agreement. In this Part 2 blog post, we’ll focus on drafting from the influencer’s side of the table.
Key Considerations
As noted in Part 1, social media influencer agreements function like standard professional services agreements, but below are some key items a contract drafter may consider when drafting a social media influencer agreement on behalf of the influencer:
- The scope of the influencer’s service obligations should be spelled out in detail, including the number, content, and timing of the social posts to be made by the influencer.
- Additionally, the actual social media platforms and the accounts to be used by the influencer should be identified.
- Intellectual property rights should be well thought out, including
- identifying ownership rights of any social media posts and other deliverables created by the influencer during the service term;
- license rights for the influencer to use the company’s names, marks, and logos in connection with any social media posts made by the influencer promoting the company’s products or services; and
- license rights for the company to use the influencer’s name, image, and likeness in connection with any social media posts made by the company highlighting the influencer’s promotion of the company’s products or services.
- Representations and warranties from the company that the products or services the influencer is promoting will be manufactured and distributed in accordance with all applicable laws and regulations.
- Indemnification protection from the company for any liability claims arising from the products or services the influencer is promoting. It should be noted that the company would expect a counter indemnity from the influencer for any claims for compliance with advertising, contest and lotteries regulations.
Project-Specific Issues
In addition to the key considerations above, a contract drafter may need to consider the following project-specific questions on a case-by-case basis in its social media influencer agreements:
- Will payment be in cash or will there be an equity component or other form of compensation?
- Does the company expect the influencer to follow any guidelines when responding to user comments and how negative comments will be treated?
- After the expiration of the agreement, will the influencer be obligated to delete any previously made social media posts concerning the company’s product or services from the influencer’s social media accounts?
- Does the influencer have the right to approve any use of the influencer’s name, image and likeness in any social media posts or other advertising made by the company prior to posting?
- If there is an exclusivity component, will the scope of the exclusivity cause the influencer to be in breach of a different agreement or otherwise limit the influencer from future opportunities?
- If the influencer is required to attend promotional events organized by the company, are there limitations on consecutive hours the influencer must be present, and is the date, location, and time of the event to be mutually agreed upon? If travel is required, it may make sense to agree to any refundable travel costs and expenses upfront.
The above are only a handful of items to consider when drafting an influencer agreement, as each is project-specific and requires the contract drafter to do its research ahead of time to ensure that all necessary details are captured within the four corners of the agreement.