Influencer marketing has become one of the most popular ways
for marketers and their PR agencies to engage consumers—and also
one of the most cost-effective.
As marketers continue to invest more in influencers, they expect
more in return. This dynamic is changing the process of contracting
with influencer talent.
It’s easier than ever for marketers and their agencies to get
caught up in the social media whirlwind. However, it is critical
for all involved parties to take a step back and understand the
regulatory framework at play, as well as the importance of having
robust contracting processes in place.
In light of recent Federal Trade Commission (“FTC”)
developments, all involved parties should keep the following 9 best
practices in mind:
1. Define the influencer content.
According to the most recent batch of FTC warning letters and
updated FAQs to its Endorsement Guides, certain hashtags,
such as #partner, #ambassador, and #thanks [brand] without further
context are not sufficient. Hashtags such as #paid, #ad, and
#sponsored are likely to be sufficient, as well as organic
disclosures that clearly describe the nature of the material
2. Keep disclosures “above the fold.”
Make sure disclosures are not buried at the bottom of a text box
or in hyperlinks. In particular, disclosures on Instagram must be
included in the first three lines of the post, above the “more”
button. Disclosures on Instagram or
Snapchat Stories may be clearly superimposed on the post.
Further, don’t allow influencers to rely on built-in platform
disclosure tools. The FTC has advised that it does not believe the
Instagram, Facebook, or YouTube built-in disclosures to be
3. Consult with legal counsel to create a written policy for
endorsers to disclose their relationship with you.
Work with experienced legal counsel to develop a written policy
that clearly instructs endorsers to disclose their relationship
when speaking about a marketer’s products. The policy should also
require the influencer to provide their honest opinion of the
products and the marketers, only make factual statements that can
be substantiated and respect third-party intellectual property
In addition, influencer agreements must now address unique
issues—from regulatory compliance to a wide range of content and
associated production and ownership rights.
4. Understand who is signing the agreement.
Increasingly, agreements are not negotiated with individual
influencers, but rather with influencer networks on behalf of many
influencers. Be aware that networks frequently try to avoid direct
responsibility for influencer content. Influencers are the new
celebrities (and often act as their own production houses), and
negotiating these deals may require as much detail as a traditional
celebrity talent or production agreement, including SAG-AFTRA
issues and other considerations.
5. Create and implement a social media policy.
Provide as much detail as possible on the content the influencer
is going to create, including format and length, and how the
influencer is expected to promote it. PR agencies entering into
these agreements on a marketer’s behalf should be sure to provide
influencers with detailed brand guidelines or a program brief
establishing key messaging requirements for the content.
6. Establish specific guidelines regarding exclusivity.
When content is being produced solely for one marketer, be sure
to create specific guidelines about exclusivity. For example, is
the influencer allowed to provide his or her services for other
brands, including related or competing ones, or to include or
mention multiple brands in one video? If not, be clear about the
nature and time limitation of the restrictions.
7. Ensure that the marketer has the ability to review and approve
influencer content (and request revisions).
Further, consider whether the marketer wishes to own the
content. For one-off social posts, a broad usage license may be
acceptable (and is increasingly industry standard). However, for a
broader production campaign, ownership of the assets may be more
critical. Don’t assume that the influencers of today will agree
8. Contracts should require influencers to represent and warrant
that they will comply with all applicable laws.
Your contract should specify that influencers must comply with
applicable laws, including the FTC guides, and further that the
content they provide will not infringe upon any third party rights,
including copyright and rights of publicity.
Well-drafted agreements should include terms that impose
consequences for breach of these obligations that incentivize the
influencer’s compliance (without prompting them to walk away from
9. Make sure to build in legal/regulatory compliance.
Morals clauses and related provisions in influencer agreements
are mission critical. Celebrity influencers with strong bargaining
power often resist agreeing to robust morals clauses. However, it
is more important than ever to push back.
While the previous industry standard was that a marketer could
terminate a relationship only if the influencer’s offensive
activity occurred during the term of the engagement, marketers and
their agencies should consider negotiating for the right to
terminate an influencer agreement if revelations emerge about
violations the influencer committed even prior into entering this
At the end of the day, marketers and agencies must
develop a detailed plan for monitoring influencers, along with an
action plan if they go rogue so that marketers and agencies can
Regulators are watching the entire influencer ecosystem—from
marketers to publishers, PR agencies, and the influencers
themselves. PR agencies are on-notice and must act accordingly.
Preparation is key.
Michael Lasky is a senior partner at the law firm of Davis &
Gilbert, where he leads the PR practice group and co-chairs the
litigation department. He can be reached at firstname.lastname@example.org.
Paavana Kumar, a Davis & Gilbert associate specializing in
social media and marketing law, assisted with this article. She can
be reached at email@example.com.