8 Major Deal Points in an Influencer Marketing Agreement

Welcome to another episode of Launched & Legal with Dayna Thomas, Esq., entrepreneurship attorney and law firm coach. Launched & Legal is an Atlanta Small Business Network original series dedicated to bringing entrepreneurs and business owners the best practices and tips for strategizing, legalizing, and monetizing their ventures. Today, Dayna discusses influencer marketing: what it is, how to know which influencer is right for you, and what should be included in an influencer marketing agreement.

Transcription: 

Dayna Thomas, Esq.:
Hi everyone, I’m Dayna Thomas, Esquire and welcome to Launched & Legal, where it’s my mission to help you strategize, legalize and monetize your business. I’m so excited that you’re watching, because today and in every show, I’ll be sharing the best practices and tips to take your business and brand to the next level. Okay. So today we’re going to be talking about marketing, but not any type of marketing, we’re going to talk about influencer marketing that’s right. Influencer marketing is when you are hiring an influencer, a social media influencer to be exact, to promote or market your product or service.

Dayna Thomas, Esq.:
Now, I don’t know if you’ve tried it before, if you have, or haven’t, maybe you like it, you don’t like it. Whatever the case is, I’m here today to educate you about influencer agreements. I think hiring influencers to promote your product or service is a fantastic idea, as long as it’s within your budget, and of course, it’s the right audience. Now, a big mistake that you can make using influencer marketing is hiring the wrong influencer, just because that person has a lot of followers doesn’t mean that it’s a good fit for your business. You want to make sure that those followers that they have are the audience that you need.

Dayna Thomas, Esq.:
So, if you are selling candies and chocolates and sweets, it probably wouldn’t be a good idea to hire a fitness influence for that. That would not be the right audience as likely that audience wants to work out, get fit, and stay away from sweets. So be sure that you know and understand the audience before you offer an influencer marketing arrangement. So today I’m going to help you out with what needs to be in that type of arrangement or agreement. So we are going to talk about eight major deal points in an influencer marketing agreement.

Dayna Thomas, Esq.:
Number one, the content. What does that influencer have to do or create to promote your brand? Are they creating one Instagram post? Are they creating Instagram post and a different Facebook post? Are they creating one post that they’re going to post on Instagram, Facebook and Twitter? Is it a video? Is it a 30 second video, a five second video, a two minute video? Is it five videos and two posts? What exactly do you want them to create? Keep in mind that the more content, the bigger budget you probably need to have, but you have to be clear on exactly what you need.

Dayna Thomas, Esq.:
Not only that, but what’s the best way to promote your product or service? Is it hard to explain your product or service by just a photo? Is a video something that would be a better fit in order to promote your product or service, or is your product or service better suited with a photo or maybe a few photos for a campaign? Be clear on what the content is that will be created, because that is huge for hiring influencers. They’re going to be creating some type of content in order to promote your brand. So be clear on what type of content you want created, what the terms of that content is, where you want your product placed. What type of content is being created and be specific with the influencer.

Dayna Thomas, Esq.:
Along with that, with the content, you want to make sure your influencer is clear on how many revisions you can request. So, is it just whatever they create, that’s what you’ll use or do you get to have one round of revisions? Do you get to have five rounds of revisions? Do you get to have unlimited revisions until it’s something that you accept or approve? Along with determining what content is being created, be sure to include how many revisions you can request as well.

Dayna Thomas, Esq.:
Number two, ownership of that content. Now, if you’ve watched the show before, you’ve heard me say that as it relates to intellectual property, specifically for this copyrighted property or copyrighted content, then the default law is whoever creates it, owns it, unless there is a contract that says otherwise. So, your influencer will own whatever content they create, and that might be fine for this arrangement that you have. I’ve had agreements that go both ways that the influencer will own the content that’s being created or the brand will own the content that’s being created. Either way, just make sure that you are clear on who’s going to own this content.

Dayna Thomas, Esq.:
Number three, dedicated or non dedicated content. Now, what does that mean? Now, I know we’ve seen influencer marketing posts before where the influencer is promoting a product or a service, sometimes we see that is just one product that’s in that post, and sometimes we see that it’s many products that’s in that post and many brands. So you need to be clear in your contract, whether the post or the content needs to be dedicated, meaning just your brand is featured, no other featured brands, or if it’s non-dedicated, which means that your brand will be featured and one or more other brands can be featured.

Dayna Thomas, Esq.:
Typically, non-dedicated costs less because there’s other brands that’s being promoted so that influencer can have income or revenue from many different brands for a single post. But if it’s dedicated, then they’re focusing specifically on your brand, and it does bring more attention to your brand as well. So be sure to determine and negotiate whether that post and that content is going to be dedicated, meaning your brand alone, only your brand is featured or non-dedicated, which means that your brand will be featured with other brands as well.

Dayna Thomas, Esq.:
Number four, the term. How long can you as a brand use this influencer’s name likeness, the post in order to promote your brand? It likely won’t be forever. There’s going to be a term, a period of time that you can promote your product or your service using that post or using that content. Right? So how long will that be? Again, typically, the longer that term is, the more it costs, the shorter, it’s probably a smaller budget, but you want to be clear on exactly how long can you use this post or exactly how long does this influencer need to keep the post up.

Dayna Thomas, Esq.:
Because remember this, even though they post it, you have to be clear that they need to keep it up on their page for a certain period of time. So don’t let that loophole slip by you, be sure to determine what the term is for this influencer marketing agreement. Okay. Number five, you want to make sure to include usage. Right? How can you as the brand use the content that’s being created by the influencer? For one, can you use it at all. Right? Is it just that the influencer posted on their Instagram, Facebook, Twitter page, and that’s it, and you try to drive traffic to that page? Can you repost it?

Dayna Thomas, Esq.:
Can you create new content from that content that’s already been created by the influencer? Can you create new posts? Can you boost it or can you use it as an ad? Right? Can you create a Facebook or an Instagram ad or even a Google ad out of the social media post that influencer has created? Are you allowed to use that outside of social media? Can you put it on your website as well? Can include it in emails and in an email marketing campaign?

Dayna Thomas, Esq.:
These are all things that need to be spelled out in your contract with your influencer. How can you use the content that’s being created? We know that the influencer is going to post it on their page, right, but can you post it on yours? And to what extent and what can you do with that piece of content or multiple pieces of content outside just posting it on social media? Be clear on that, because those are your usage terms and it’s key in an influencer marketing agreement.

Dayna Thomas, Esq.:
Number six. We’re going to talk about exclusivity. That’s right. So can the influencer post for other brands around the same time that they’re posting for your brand? What period of time does that influencer need to be exclusive to you? Now, every agreement doesn’t have to have exclusivity. Honestly, it really depends on how much leverage you have. I’ve seen major brands with influencers and they have a long period of exclusivity. I’ve seen smaller brands that want to use influencers and they have no exclusivity at all because it’s just a great opportunity for them to post.

Dayna Thomas, Esq.:
I think exclusivity is pretty important because if they’re posting about your, I will use the same example, your candy brand, I don’t think the influencer should be able to post about a different candy brand tomorrow. Right? It’s not going to seem authentic in that they really have a great collaboration or they even like your brand. So, I’m not saying the exclusivity has to be long, it can be exclusive the day before or the day after, two days before, and two days after, a week before and a week after your post to make sure there’s enough time for that audience to really soak that in and not be distracted from competitive brands.

Dayna Thomas, Esq.:
However, be sure that you and the influencer are on the same page as it relates to exclusivity. Taking that a step further, you want to be clear on who is the competition. Right? I typically don’t like to see in agreements just in industry. So if it’s candy for the same candy example, I wouldn’t say the food industry. To me, as the brand, yes. That sounds great to you, but as the influencer, that is a huge no, no. So, be clear on what brands are actually competitive brands. Try not to be super broad about it, but you also don’t need to be super specific. Find the happy medium that makes both you and the influencer comfortable with that exclusivity clause.

Dayna Thomas, Esq.:
Okay. Number seven. Let’s talk about price and payment schedule. Everything we’ve talked about so far relates to the price. The more exclusivity you have, the more it’s going to cost, the more content you want created, the more that’s going to cost. If you want to own the content that’s created, that usually costs more as well. If you want a dedicated post versus non dedicated, that will cost more. So, what is your budget for this? We know that influencer marketing does work, especially if you have good content, and an influencer that has the audience that works best for you. So be clear on what the payment terms are. And along with that, what the payment schedule is.

Dayna Thomas, Esq.:
Very rarely do I see that the influencer gets paid a 100% upfront. I know influencers would love that. As the business owner, I would want to split up that payment. Right? So we want to provide some type of payment up front to get the influencer started. It shows good faith. And then you also want to have some type of milestone as well. Maybe you’re splitting it up into two payments. You have the initial payment when the contract is signed and the final payment once all the work is done, or maybe you have the initial payment once a contract is signed and another payment once a content is approved and another payment once the content is posted.

Dayna Thomas, Esq.:
Or maybe you have five posts in your campaign and you make a payment after each post. Be clear on what the payment terms are and your payment schedule for your influencer market agreement. And something that really keeps your influencer motivated to meet those deadlines and to create excellent content for your brand. Also, it might not even be money that you’re paying to the influencer. Maybe they just want product. I know influencers who are just getting started and they don’t even think that they can get paid, which you can if you’re watching, but sometimes they may just be interested in products.

Dayna Thomas, Esq.:
So, depending on the level of the influencer, what I’ve typically seen as I’ve done many, many, many of these agreements for a variety of industries, typically, if the influencer is more of a high level influencer, they have a lot of followers, they want money, but maybe you have a micro influencer campaign where maybe they have hundreds of followers or a couple of thousand followers, and they’re just starting to get their career as influencer started. They may just want products. So be sure to discuss that with your influencer as well, and see if they want money or if product will work, and that helps to save your budget.

Dayna Thomas, Esq.:
Last but not least. I want to talk about number eight, which is termination. But not just termination in general, something that’s called termination without cause. That means termination for no reason at all, there’s nothing that went wrong, no one breached the contract, but you need to terminate the contract for convenience, which we call it. And as the brand, you want to have as much leverage as you can. So if you just changed your mind or maybe you want to go with a different influencer, it’s called termination without cause.

Dayna Thomas, Esq.:
But what will happen if you decide to terminate without cause? What if the influencer has already posted the content? Are you still responsible for paying? What if the influencer has created the content, but you haven’t approved it yet and it has not been posted, what amount is due at that time? What if the influencer has created the content and you’ve approved it but it has not been posted yet, how much do you owe them based on that? So be sure not only to include general termination provisions, but termination without cause also known as termination for convenience because you as the business owner and as the brand, you do want to have as much control as possible about how you promote your brand.

Dayna Thomas, Esq.:
And if you change your mind for whatever reason, you want to make sure that the payment terms are still fair if the influencer happens to create the content and it’s not posted, or maybe they haven’t posted all of the content yet. Be sure to detail what will happen and make sure you and the influencer are on the same page as it relates to terminating for convenience or terminating without cause.

Dayna Thomas, Esq.:
Well, I hope today’s show help to educate and inspire you. As you pursue your business goals, be sure to share today’s show with someone who can benefit and visit MyASBN.com and subscribe. If you have any questions or comments about today’s show, I certainly would love to hear from you. Just send me a message or comment on Instagram @daynathomaslaw. Remember to tune in next week and every week to make sure your business is launched & legal.

Speaker 1:
Thanks for watching Launch & Legal with Dayna Thomas.


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