Influencer Contracts 101 - An Overview
A multi-part series on common legal terms, concepts, and ideas in partnership contracts between influencers and brands.
In this multi-part series, we are going to dive into some common terms, concepts, and issues in contracts between influencers and brands. We hope that these posts will give you better leverage in your next negotiation, and lead to better business decisions!
Ever notice how random words are Capitalized in Contracts (in addition to proper nouns and the start of sentences)? Well those words aren’t random. If a word is capitalized in a contract, it has a customized definition, as defined by that particular contract. Technically, the “Brand” could actually be a candy bar, and the “Influencer” could be a Christmas tree, so make sure you read the fine print!
We could go on about copyright forever, but for the sake of this post, we’re going to keep it short. Basically, copyright exists “to promote the progress of science and useful arts by giving creators exclusive rights to their works for a while”1. As a social media entrepreneur, everything you post is protected under copyright, and cannot be reproduced, distributed, or displayed without your consent (read: compensation). Copyright law is extremely important for influencers, and we always recommend consulting with an intellectual property attorney.
Before you storm your attorney’s office, it’s worth noting a few fair use exceptions to copyright (attorneys aren’t exactly known for their bargain price points). A copyright infringement battle will examine the purpose, nature, length, and market value impact from the reposted work. A few examples of perfectly legal re-posting:
- A local blog can review your brand by reposting a picture or sentence from your bio
- A school could include one of your posts in an educational social media marketing lecture (for internal, educational purposes)
Of course, there are instances where sharing your work infringes on copyright. For example:
- Another influencer can’t copy/paste one of your posts without crediting you because doing so would devalue the market value of your own original idea/brand
- If a brand wants to use one of your images to drive their own commercial sales, they must receive your consent to do so, and properly credit you for the image (ie: draw up a contract!). This can be a grey area, because User Generated Content is popular on both the brand and consumer side of marketing, but it’s important to stick up for your business. If a brand wants to use your content, make sure you’re business benefits from the transaction!
If a brand is requiring you to exclusively promote their product, you should be compensated accordingly. When saying yes to one brand means saying no to 5 other partnerships, your fee should be increased to reflect that lost revenue. Make sure you completely understand the non-compete clause, as this restriction will affect your immediate revenue stream, and could limit future partnerships with other brands.
If a brand is going to pay for your advertising space, they naturally want to be guaranteed a certain coverage. For this reason, they may spell out a post-duration for your partnership. So if a brand requires a post stay live for six months, make sure it’s on your feed for the full six months!
In addition to posting to your own Instagram profile/story, a brand may request the rights to use your image(s) in their own advertising. Anything agreed on in the contract is fair game - such as social media accounts, marketing newsletters, or even the brand’s website. Make sure you are being compensated fairly for image use, and be sure there is an end date included in the usage clause (ie: don’t accept a small fee for lifelong advertising on a big brand’s website).
1 Passman, Donald S. All You Need to Know about the Music Business. New York: Simon & Schuster, 2013.