Influencers have become essential tools for agencies and their clients to reach new audiences, build credibility, and drive sales.

It’s true that  negotiating influencer agreements can be a challenging process, especially when you’re trying to get a campaign launched on a tight deadline, but these key tips will guide your team as it  as you negotiate your next influencer agreements so that the process can be as smooth and profitable as possible.

1. Use a contract, but be prepared to explain

Your influencer agreement should speak to some crucial issues such as ownership of the deliverables and division of liability, and it should clearly communicate your client’s expectations to the influencer. However, one of the biggest struggles you might encounter in negotiations is that talent agents and influencers do not always understand (or read) the legal terms, and they sometimes push back on reasonable requests as a matter of “principle” even when the outcome of that pushback will not be financially profitable for them. This can delay negotiations and make the process complicated.

If you find that you are consistently revisiting a clause during negotiations due to a misunderstanding of terms, it may be time to have legal counsel  re-write the clause in a manner that is more easily understood by talent and agents. Otherwise, be prepared to educate influencers and agents as to the meaning of certain legal clauses. If your team is unfamiliar with your influencer agreement or the meaning of certain clauses, it may be time to invest in some additional training or workshops with your legal advisors.

2. Clarify ownership of deliverables

Ownership is another huge point of contention in influencer negotiations. Agents and creators are highly focused on and conditioned to  “retain ownership of the content you create”, and they will fight tooth and nail to own every single deliverable developed. For some campaigns, this is perfectly acceptable, and a license for the content is all you need.

For other campaigns, a license may not be enough for the brand. Your client may require ownership of the deliverables, or you may need the flexibility of using the content in a variety of different manners over the course of time. In these circumstances, you will need to own the content outright. Outright ownership is often more expensive than a license, so prepare yourself that you either need to include the buyout cost in the initial offer, or you may need to increase the payment amount to accommodate the buyout.

3. Be specific about payment terms

In general, an influencer should only be paid for (1) the work they do and (2) the rights they grant you in the content. Nonetheless, there may be some flexibility in the payment structure, and there are three options we’ve used that have consistent success:

• Each deliverable is paid for separately, and payment is only remitted after a deliverable is completed.
• A partial payment is made up front with the remainder being paid out after all deliverables are completed.
• Payment is made in full after all deliverables are completed.

Each of these options has pros and cons, but they are at your disposal as options during negotiations. Some influencers feel more comfortable with an initial payment up front while others feel more comfortable being paid in small increments as work is completed. The final full-payment option is probably least favored, but many brands prefer it as they do not have to pay until they confirm that good-quality work product has been produced.

When you are negotiating payment, keep the brand’s need to get the campaign launched in the back of your mind, and try to balance it with the influencer’s concerns and motivations surrounding payment. By keeping these two aspects at the forefront of the negotiation, you can more quickly arrive at an equitable option for all parties.

4. Tackle morality and exclusivity issues

Morality and exclusivity are two additional points of contention during negotiations, and they are of substantial value to your clients. Regarding exclusivity, the influencer is being paid to influence. That influence is significantly devalued if they are promoting a competitive brand while promoting your client’s product as this situation reduces any sense of authenticity.

Influencers may try to push back on timeline or require extra fees for their exclusivity, so it is important to understand your client’s campaign goals before the negotiations begin. Are they willing to pay more for exclusivity? Is exclusivity less important to them, meaning you can shorten the timeline? By understanding your client’s goals, you will understand how flexible (or firm) you need to be if your influencer pushes back.

Regarding morality, “cancel culture” has made the morality clause essential. As you have probably seen, any affiliation with a “cancelled” creator can have a detrimental impact on any business. Therefore, if your influencer is caught behaving in a way not in alignment with the brand’s values (or is outright illegal or immoral), you need to be able to pull the plug immediately to preserve the integrity of your client’s brand. You will also need to require the influencer to quickly remove any branded content, and you may even need to require the influencer to return fees in the event you’ve offered them a large pre-payment.

Morality clauses are very inflexible due to the severity of the issue, so prepare to remain firm and during negotiations. If an influencer is particularly concerned they will breach the clause, it may be time to consider another creator.

5. Compliance and FTC Rules

With the new FTC Rules being released in 2023, it is more important now than ever to establish clear guidelines regarding FTC Compliance (and legal compliance in general). Your contract should hold the influencer liable for compliance with these rules because they will be the ones creating and posting the content.

Nonetheless, by law, and likely via the contract you have with your client, the agency still has a responsibility to ensure the content being posted is compliant with law and FTC regulations. This means you can’t just give your influencer a creative brief and wash your hands of it – you should designate one or more team members to consistently review the content being uploaded to ensure it is compliant. You will also need a clear process for making corrections in the event that content is non-compliant, and your influencer needs to be aware of (1) the seriousness of the issue and (2) what the process of correction is.

6. Key takeaways

We have thrown a lot of tips your way in this article, but the biggest tip we can give you is to be creative, even though you aren’t the creator! Negotiations are like a game of tennis. Sometimes you advance, sometimes you retreat, and sometimes you need to put a little spin on the ball to tilt the game in your favor. And unlike tennis, you can also bring in your coach (attorney) any time you need assistance or strategic guidance in an influencer negotiation.

Lastly, keep in mind that, while negotiations can sometimes be adversarial, ultimately the influencer is a part of your “team”, and everyone is working towards the same goal. Know your client, know your talent, and you will get the job done.