Influencers

I'm an Influencer, Can I Negotiate My Contract With the Brand I am Working With?

When you are an influencer working with larger brands with huge legal departments and teams behind them can be intimidating, and often that just means we sign whatever contract is presented to us. This however, should not always be the case.

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Let me start by saying this….contracts are intended to be negotiated! Never once in my legal career have I seen a contract presented that wasn’t negotiated, redlined and changed in one form or another. This is because the party presenting the contract, and the other party have different ideas of what they each want as a result of the partnership. The contract is just the agreement of both the parties in written form of what they each agree on.

I hear so often that influencers don’t want to negotiate contracts because they are scared the brand will find them difficult or won’t want to work with them after they negotiate. This is completely false. The attorneys working with these brands actually expect you to negotiate the contract! Also, having your contract reviewed, redlined and negotiated by your attorney helps to make sure you are protected and your requirements as a party to the contract are clearly stated and agreed upon by the brand.

I realize this can seem intimidating and somewhat overwhleming but honestly it shouldn’t be. If this is something you need help with feel free to reach out, this is something I do all the time for clients and would love to help you as well!

How Influencers Can Easily Comply with FTC Requirements

The FTC is the Federal Trade Commission and are tasked with the duty of protecting consumers. This is great for us as consumers, but with the rise of influencer marketing, there are definitely blind spots and areas of the law that can be confusing. Read on to learn how you as an influencer and/or a brand can easily comply with FTC requirements.

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The FTC requires that if there is a material relationship between a business and an influencer that needs to be disclosed clearly and obviously. Yes, this includes gifted and free items as well. The idea is that we as consumers trust influencers and give more weight to what they are recommending. However, the FTC wants it to be clear to us as cpnsumers that the influencer may be biased in some way toward the product/service they are recommending because they were gifted or paid to promote the product or service. This is a good thing for us as consumers, but as influencers and brands it might be a bit confusing. So here are some simple ways you can protect yourself and your brand and easily follow FTC requirements:

  1. On every post you make that you have a material relationship with a brand state such relationship. You must clearly do this by saying so if you are on video or writing it clearly in a blog post or social media post.

  2. You can use hashtags to show that this is promoted material. Some common hashtags are #sponsored #ad #advertisement.

  3. If you are posting on stories you must include a hashtag or some sort of disclosure on every individual story. This is a requirement because stories expire and people may miss the initial story or disclosure.

  4. Just using the built in disclosure tools (like instagram and facebook’s branded content tool, or YouTube’s paid promotion notification) was said to not be enough by the FTC. You must clearly disclose your relationship as stated in 1 and 2 above.

  5. Affiliate disclosures are treated as a material relationship. This means you must disclose that it is not only an affiliate link, but you must tell the consumer that if they click the link and make a purchase you will get some portion of the sale.

  6. If you are a partner or ambassador, the FTC has said that merely using #Xpartner is not enough. You need to disclose and make it clear that you were paid or giving something for free in exchange for the post.

  7. Video posts must include a verbal disclosure and one in text as well.

  8. Use must disclose freebies!

Although that seems like a lot of rules, the answer is easy. Always be transparent and disclose your relationship with the brand. If you want a more in depth explaination, head here for some tips and FAQ’s from the FTC.

If you are an influencer or brand and want some legal advice and help on the topic, feel free to schedule a free 15 minute call with me to see how I can help you!

9 Must Have Terms in Your Influencer Contract

In the influencer space, since it is realtively new and sometimes casual, I think we forget that when services are being provided (you posting on your instagram about a brand, etc.) and in return for that work you are getting free goods or even money, there should be a contract in place. Gone are the days where an instagram DM is the way we negotiate and execute deals. Having a contract in place not only protects the brand but protects you as an influencer as well. Remember, being an influencer in a business and to protect yourself you should have not only a contract, but these important terms/sections in every one.

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  1. Use Your Legal Business Name. This is one of the biggest mistakes I see influencers make when it comes to contracts. The name on the contract should be your legal business name (hopefully an LLC), not your personal name. If you sign the contract as yourself, and not your business, and you inadvertently breach said contract, the company can come after your personal assets.

  2. What Services are Being Provided. You want to make sure that what you are expected to provide as an influencer to the brand is clearly and accurately described and laid out in your contract.

  3. Approval Rights. This clause will layout the terms of what editorial rights you as the influencer will retain. Can you post anything you want without approval from the brand? Does the brand have to approve or will they tell you want to say? Will they tell you what hashtags to use? There is no right or wrong here but you want to make sure this is clearly stated in the contract.

  4. Payment Amount and Terms. This might seem obvious but you want to make sure the contract included how much you will be paid, and when. Also, do you need to invoice the company? Many large companies won’t pay influencers until sometimes 30, 60 or even 90 days after they receive an invoice from you. Make sure this is clearly stated in your contract.

  5. Copyright and Usage. As an influencer and the creator of content for brands, you legally hold the copyrights to the work. However, make sure you state this is in the contract if you want to retain these rights. Also, you need to determine how the content is allowed to be used after the term of work between the brand and influencer is over. Can the brand repurpose the content and use it on other platforms? Can the brand use it in print? Make sure you clearly define this so there are no discrepencies after the fact.

  6. FTC Disclosures. You want to include this clause to make sure the brand knows you are going to follow all FTC rules when it comes to their requirements for transparent disclosures.

  7. Termination. The time at which the contract is over between the two parties should be clearly defined so there is no confusion.

  8. Exclusivity. This is one of the biggest mistakes I see influencers make. They either do not read, or do not realize what their contract says when it comes to exclusivity. For example, say you are working with a beauty brand, the contract might state that for a year you can’t work with another beauty brand. Now if you are a beauty blogger this would be crippling for your business.

  9. Confidentiality. This clause is important as you don’t want brands disclosing the deal they made with you. Note this clause will work both ways, that means you cannot share the terms of your contract (for example asking a question about it in a facebook group) with anyone other than an attorney.

While the legal side of being an influencer may seem overwhelming, keep in mind the law is there to protect you. If you are confused and want to know how I can help, check out my services or feel free to schedule a free 15 minute legal insight call.