The use of influencer marketing has exploded in the last few years, and along with that, the complexity of the brand-influencer partnership agreement.

As influencer marketing continues to gain in popularity, and influencer profiles continue to grow in reach and fame, influencer contract terms and conditions have likewise expanded beyond simple terms involving social media posts in exchange for sample products, to negotiated agreements covering complex licensing and usage terms, legal compliance requirements, and termination rights and remedies.

Adding to the complexity is the reality that agreement terms and negotiating leverage can vary dramatically from influencer to influencer, depending upon the influencer’s reach and audience.

For marketing agencies tapped with negotiating these types of contracts terms and managing the brand-influencer relationship, it’s important that both the influencer and the brand feel each are adequately protected, and that both parties fully understand their respective rights and obligations under the agreement.

As the agency that puts the deals together and then managing the campaigns, your team has multiple roles to play in keeping everyone happy and out of trouble.

Help is on the way. These are the top 4 contract clauses we see most often negotiated between influencers and brands.

1. Ownership of the Content

Without a written agreement that says otherwise, U.S. copyright law provides that an influencer owns the content they create on behalf of any brand (excluding any intellectual property of the brand that’s included in the content, like a trademark or product package design).  Where there is a written contract – like an Influencer Agreement – specifying that the work is being created for another, the copyright in that work can transfer over to the other party.

The problem, obviously – your clients, the brands, think THEY should own the content. For one thing, they’re paying for it. For another, it’s content that mentions or includes images of the brand or its products or services.

But from the influencer’s point of view, their ownership of their body of content could impact their ability to control and develop their own personal brand and reputation – the stuff that makes them valuable to brands in the first place. This affects their future partnership  opportunities.

Consequently, attempts by brands to include work for hire language in their influencer contracts will often be opposed by the influencer or their agent, or require a hefty price tag.

What should your agency do to resolve the issue?

Ultimately, what often times makes the most economic and practical sense for both the influencer and the brand is a content license arrangement with an appropriately defined scope of usage rights.

2. Content Use Rights

Influencer content usage rights cover the when, the where and the how of a brand’s ability to use the content created by the influencer. This is where the expectations can differ drastically between high-profile influencers or enterprise brands on the one hand, and micro-influencers and smaller local brands with less experience and/or bargaining power, on the other hand.

Regardless of the level of sophistication or budget involved in any given project, brands will generally vie for broad usage rights to use the influencer content exclusively, worldwide, royalty-free, in any media, with no restrictions, in perpetuity and for multiple purposes.  On the other hand, influencers will generally look to narrow and limit the scope of the license, including the length of time, the exclusivity period, and whether the content can be repurposed for other uses.

To strike the right balance between the needs of the brand and the influencer’s interests, agencies will need to consider the following usages:

• Scope of the license: the agreement should specify the scope of how the content can be used by the brand, including any reposting rights on the brand’s own social media properties, in what media (e.g., digital, non-digital), and whether attribution will be required in all instances.

• Right to Use Likeness: Intertwined with the brand’s right to use the content is the right to use influencer’s likeness (i.e., the influencer’s name, images, personality) in connection with the content.  The contract should state whether brand can use the influencer’s likeness beyond the original campaign.

• Term: How long is the campaign?  Will the brand have the ability to use the content for a period of time afterward?   Other timing considerations include whether and for what length of time the influencer is required to keep the posts on the given social media platform prior to archiving them.    Ultimately, long term usage rights will typically require a higher investment than shorter campaigns.

• Ability to Repurpose. To extend the longevity of a campaign or their investment, brands will inevitably want the right to repurpose the influencer content.  Beyond organic digital advertising, the brand may want the ability to use the sponsored content for other purposes such as across all their social media properties, in print and offline billboards, on their website, in email marketing, and/or programmatic and digital banner ads.  Conversely, influencers will want to limit repurposing rights or see more money for extended content usage terms.

Ultimately, when negotiating use rights in any given influencer contract, remember to realistically consider the needs of the brand, and avoid focusing on broad usage rights the brand doesn’t actually need (such as the assets from a seasonal promotion campaign, for example).  Some content simply doesn’t have a long shelf life. And so focusing on broad use might not only overcomplicate the negotiation process but could lead to increased expense that is unnecessary and that could cut into budgets. If the brand really needs or wants extended usage, be prepared to pay more for it.

3. Influencer Exclusivity

An exclusivity term is one that prevents or restricts the influencer from working with or representing other competing or adjacent brands. An exclusivity term that is too long or broad can severely restrict the influencer’s ability to capitalize on other opportunities, while the failure to include an exclusivity term could adversely affect the advertising campaign by diluting its impact or making it seem less organic and making it less effective.

Exclusivity, as with the other clauses mentioned in this article, will ultimately be a balancing act. The influencer will want any exclusivity restrictions to be as narrow as possible, leaving them maximum room to explore other opportunities, and the brand will want the broadest exclusivity rights to the prevent the influencer from promoting its competitors during and after the campaign.

The proper balance will depend on several factors including the scale of the advertising campaign, the investment involved and the competitive environment.  For example, an investment or financial brand would likely want broad and long-term exclusivity, while a cosmetic brand could likely narrow the exclusivity to the one category involved in the campaign (e.g., lipsticks) while allowing the influencer space to promote other non-lipstick cosmetic brands during the exclusivity term.  So, the length of the clause and the scope will need to be clearly defined.

Ultimately, a good exclusivity clause negotiation is one that results in an agreement between the parties that will adequately protect the brand’s investment, but which will not materially interfere with the influencer’s ability to commercialize on other opportunities, or which will otherwise fairly compensate the influencer for doing so.

4. Content Take-down Rights

The purpose of take-down (content removal) clauses are to protect the brand.  There are many reasons by a brand might require a subsequent take down, all of which should be contemplated and addressed in the influencer agreement.

The most obvious is a violation of the influencer agreement’s morals clause.  A morals clause allows the brand to require the influencer to remove any posts or content in the event the influencer commits any act or is involved in a public scandal that can potentially harm the brand’s reputation.  Brands will want to negotiate this right as broadly as possible, allowing them total discretion as to what may be considered harmful to the brand. Often times, influencers will look to narrow the scope of this clause to include a more objective standard.

However, some brands might seek the ability to require content removal for reasons that aren’t a public scandal, such as a major lifestyle change by the influencer that could render their prior content as potentially disingenuous (ex: think a vegan brand hiring a vegan influencer who later adopts new dietary habits, like eating steak).  Another example requiring content removal might occur where a brand is sold and/or the brand changes its name.  Here, the brand would seek the removal of prior content so as to avoid potential conflicts or confusion with the new brand.

Ultimately, there several reasons a brand might want the removal of prior content from public circulation.  On the other hand, an influencer could be negatively or financially impacted if a piece of content, for example, a YouTube video with a large number of views, or content that’s been incorporated into a series, is abruptly taken down.  However, if the take-down rights are adequately spelled out in the influencer agreement, the influencer will have an opportunity to understand and consider the risks associated with their content creation decision making.

There’s a lot to consider when you negotiate the agency’s influencer agreements. We’re here to provide your agency counsel and assistance with drafting or negotiating influencer contracts. Contact us before you make your influencer deal.