Help! My Social Media Influencer Caused a Riot

The statistics speak for themselves:

• Influencer marketing in the US is valued at over $16 billion.
• 72% of Gen Z and Millennials follow influencers on social media.
• 89% of marketers intend to increase influencer marketing.

And of course,

• 1 influencer with 3.6 million followers has giveaway in Union Square resulting in 65 arrests.

What’s a company to do?

While Mr. Phineas T. Barnum may have believed that “There’s no such thing as bad publicity,” your company may not want to rely solely upon this adage when engaging social media influencers. The days of handshakes and one-page letter agreements may be over. Since your social media influencer may be good at attracting both followers and trouble, you need to have a contract with your influencer and that contract should include some specific helpful provisions.

• Outline of scope of work to be performed.

Provide an easy-to-understand outline of what products and services an influencer will publish. Confirm that all content must be original, factual, compliant with terms and conditions of social media platforms and all applicable laws and regulations and that posts must contain certain hashtags and/or links required by company.

• Specs on aesthetic and branding.

Consider providing influencer with non-exclusive, non-transferrable rights to your IP and specific approved uses of your IP. Provide influencer with any other applicable branding guidelines. Confirm who owns content published by influencer.

• Where and how often content to be published.

Specify all social media platforms where any content can be published and any required frequency of publishing, including any milestones and deadlines.

• Compensation.

Amount, form (commission, flat fee, product-based) and frequency. Any other perks provided to influencer.

• Content to avoid.

Profanity, sexual content, etc., as well as perhaps competitors, competitors’ products and “claims” concerning your products.

• Pre-approval of content.

Consider pre-approval rights depending on the influencer and your company’s market/customers.

• Access to influencer data.

Require influencer to provide influencer’s social media login credentials, screenshots, Google Analytics and other metrics.

• FTC Endorsement Guidelines.

Expressly inform influencer that he/she/they will be subject to the FTC Endorsement Guidelines and provide specific requirements and examples for content postings.

• Exclusivity.

Consider prohibiting influencer from working with competitors during term and for a period after term and/or on certain media/localities.

• Confidentiality.

Payment terms, trade secrets, business information.

• Insurance.

Require influencer to carry general liability insurance and personal and advertising injury coverage, naming company as additional insured.

• Term and termination.

Either at-will, specific advertising program, or specific time period. Either party can terminate without cause with notice. Either party can terminate for cause (without possible cure period) in the event of breach or untoward conduct.

• Other standard provisions:

1. Independent contractor
2. Indemnification
3. Limitation of liability of company
4. Non-disparagement
5. No assignment
6. Choice of law/venue
7. Severability
8. Force Majeure

Obviously, any influencer contract must be fit to the specifics of the influencer and the company, but the above provisions should provide a good start when trying to prevent social media publicity turning into societal riots.