Influencer Contracts: What goes into Agreements between brands and influencers

It’s no secret that influencer marketing is driving billions of dollars of sales each year in the United States alone.

And as this lucrative advertising space grows, both influencers and brands have realized the importance of influencer contracts. Influencer contracts, also called “content creation agreements,” or “affiliate agreements,” detail the relationship between the “sponsoring” brand and the “content creator,” typically an influencer on a particular platform.

We’ve seen both brands and influencers take a hard look at their contracts and move from the former “slide-into-your-dms-handshake-deal” to a full-blown Influencer Contract MSA with schedules, addendums, indemnities, and waivers.

What goes into an Influencer Contract?

But what terms should go into an influencer contract?

1. On what platforms will the content be shared?
2. Is the influencer receiving an free products, services, or travel?
3. What is the “exchange”? Meaning, how is the influencer compensated?
4. Are there any industry-specific regulations that apply (medical regulations, food& drug, alcohol, advertising to children, etc.)?
5. Compliance with disclosure rules and laws – for both the brand and influencer. Be specific on detailing how the disclosure rules will be met. Remember: the FTC is watching!
6. What type of content is being created? Examples include short form video, longer form video, images, blog posts, email blasts, etc.
7. What specific topic, service or product is the focus of the content?
8. Who has final creative decision making authority on the content produced?
9. When is the content released, and how long will it remain online?
10. Who owns the resulting IP in the content created by the influencer? Be very specific on what this means.
11. What existing IP needs to be licensed between the parties? Think brand logos, influencer name/image/likeness, etc. Also consider when this license ends: recently, Bachelor Contestant Hannah Ann sued Proctor & Gamble for this very issue.
12. Is the influencer represented by anyone? Think agents or– more recently– Unions like SAG-AFTRA?
13. Confirm in writing that this is an independent contractor relationship
14. How are data/insights/analytics about the campaign shared?
15. Any schedules, pre-release scheduling, or post-campaign scheduling?
16. Is this an exclusive deal? Is there a blackout period / window during which either party can’t work with someone else?
17. Typically, we’ll want to see a non-disparagement clause and a confidentiality clause.
18.  How is compensation handled? Consider:
    • Who receives the payment
    • How payment is made
    • If this is an affiliate model where payment is based on sales
    • If either party has “audit rights,” and what those rights look like
19.   What is the required insurance? This means for both the influencer and brand
20.   Morality clause and ability to terminate for particular types of behavior by the influencer or statements by the brand
21. Boilerplate– the small text at the end of the agreement is always important.

Are you a brand or influencer with questions about your contract? Contact us now!