Top 10 Questions Brands Have About Working with Influencers

Photo by Ikon Images

Whether you’re a brand that has just begun thinking about utilizing the power of influencers or one that has dipped a toe into doing a few campaigns, there are many legal ins and outs that must be addressed to avoid disappointments and generate optimal results for all those involved.

It’s best to go over campaign concerns in advance, before any misunderstandings arise, or you might find your brand doing damage control. We asked BabbleBoxx’s General Counsel Ken Schoen to expound on some of the important legal issues to consider when launching an influencer marketing campaign.

 

 

What should go into a contract with influencers?

When not retaining an agency to manage individual or multiple influencers on a campaign, brands or agencies seeking to contract directly with influencers need to be mindful of important parameters to ensure their objectives are met.  I would consider including provisions that address:  deliverables (including timing, type of post, length, choice of platform), disclosures (ensuring FTC and WOMMA compliance), conduct (even listing topics to avoid e.g. politics, race relations), termination, exclusivity, pre-approvals, control and re-use of content.

 

What are the FTC disclosure requirements for an influencer marketing campaign?  

The FTC requires any influencer with a material connection to the brand being mentioned, to clearly and obviously disclose that connection every time they promote the product.  There are three key rules to avoiding issues with the FTC.  Influencers should say who they represent, say only what they believe and must not misrepresent who they are.  If an influencer is being paid to promote a product, the reader or follower should be able to discern easily that there is a relationship between the influencer and the brand or agency. Typically the use of the hashtags #ad or #sponsored will suffice, but the disclosure should be prominently featured at the beginning of a post, neither requiring a click-through to the end or going to another page, or that the entire post needs be read before the relationship is made apparent.

 

Do brands have ownership rights to paid content generated by influencers?

It depends (yes, a lawyer response!). This is an item that should be addressed clearly in the contract.  Influencers, as independent contractors, own their content.  Any content generated for a particular campaign, should be accompanied by a royalty free, fully paid, sublicensable worldwide license under any and all intellectual property rights for use, at least on the campaign and any related promotional or marketing initiatives, and on the brand’s social channels.   Whether the brand or agency can use the content for reasons beyond that, may need to be contracted separately with the influencer or their representative, or otherwise defined when the underlying contract addresses content ownership and use.

 

What are the universal sharing rights for influencer content?

Again looking to the contract for guidance, universal sharing rights generally mean a brand can use the content of that campaign for related promotion purposes and on the brand’s social media channels. If, for example, a brand wants to use the influencer’s content on an entirely different campaign, they need to address that beforehand with the influencer.

 

What does a brand need to do in order to re-share content created by an influencer?

Attribution is the initial requirement.  Once it gets past the campaign, if items related to the campaign are to be used, then the contract would dictate what the brand needs do next. So if a brand wanted to use an influencer’s photo created for a campaign on the brand’s twitter account, or in the brand’s year-end report, or in a company newsletter or manual, simply attributing the content to the influencer should suffice.  If it seeks to use it elsewhere, it’s recommended they communicate with the influencer. (BabbleBoxx has been asked to facilitate that communication in the past, and we are happy to do so.) Influencers typically welcome the additional exposure, and if they charge for the usage, it is generally a nominal or reasonable additional charge.

Photo courtesy of Shutterstock

What are the legal considerations when working with influencers under 18?

In Hollywood, the California Child Actor’s Bill or Coogan’s Act (named after child actor Jackie Coogan) requires 15% of contracted monies be placed in a blocked trust account to protect the child from exploitation.  But Coogan’s Act does not apply to social media – and a legislative attempt to correct this in California was significantly watered down to the point it was unenforceable.  Nonetheless, if a brand is working with a minor, they would do well to ensure parental consent is obtained and to be cognizant of exploitation issues on both the campaign and the management of that campaign.

 

Is there any legal recourse if an influencer goes MIA or posts something unfavorable?

Most influencers want to work with, rather than against brands if not for their own pecuniary interests.  But the issues are real, though infrequent.  This is why a vetting process is important, and the use of an agency that does that vetting for the brands is advisable.  Influencer conduct can be contracted as a proactive measure, but that doesn’t guarantee compliant conduct by each and every influencer.  Pursuit of an influencer can come at a higher cost (in dollars and controversy) than the initial spend.  Influencer contracts, performance guidelines and proper planning appear to be the best approach.

 

Can I obtain a non-compete prior to engaging an influencer?

Influencers generally are amenable to non-competes during the course of a campaign, and are willing to negotiate bumper periods before and after the campaign runs.  Spelling this out in a contract avoids any disputes as to interpretation should a conflict be identified in the midst of a campaign.

 

When it comes to highly regulated industries what are some of the safety measures brands can put in place?  (Examples: no children in photographs, blur any branded items, age considerations, no politics, no alcohol, no unsubstantiated claims.) 

The above examples hit on the types of safety measures a brand can implement.  And the place to implement them is in the contract, or a specific rider to that contract, so you have a signed document to enforce compliance.

 

Can/should legal departments review content prior to publishing?

The nature and appeal of influencer content is its authenticity and originality.  Most brands give influencers the liberty and flexibility to create their own content, and it’s recommended to work closely with the agency in developing guidelines to assist influencers with brand messaging.  But if it is both merited and feasible within the format, and it goes beyond the basic phraseology of delivering brand messaging, brands should build in at least one review for accuracy and legal compliance.

 

We hope that was helpful and that it helps avoid any potential conflicts in working with influencers. If you have any questions for Ken Schoen on these or general legal issues regarding influencer marketing campaigns, Ken can be reached via email, Ken@babbleboxx.com.