When you Google “influencer contracts”, the results are largely articles sharing how marketers should be writing their agreements, but there aren’t a whole lot of resources for the creators who these contracts are intended for. Honestly, this isn’t a surprise to me. Many influencer agreements are intentionally filled with confusing legal jargon, terms and conditions that were never discussed during initial negotiations, and are often sent by brands last minute to put influencers under the gun to get the agreement signed. Do not let to these pushy deadlines keep you from understanding what you’re actually signing!! If a brand really wants to work with you, they’ll go through the red-lining process and make sure you feel comfortable with the arrangement. Period.
Full disclosure, I’m not a lawyer. This post should not be interpreted as legal advice. But, as someone who has written contracts on behalf of brands in collaboration with a legal team, signed agreements as an influencer myself, and red-lined and executed hundreds of contracts for the influencers that Coastline Creatives manages, I know that what I’m about to share with you is information that you should carefully consider when reading, negotiating, and executing an influencer agreement. So, let’s get to it.
My Top 3 Sections That I Look For First
It’s all about the money, honey! My first look is always checking to make sure the dollar value we agreed on is the one reflected in the contract. Sometimes brands and agencies are churning out contracts to 10, 20, or more influencers for the same campaign, and they may have forgotten to change the amount to reflect your rate.
Another thing to look for are the payment terms. NET30 is industry standard, however, some agencies have a hard stop at NET60, and I’ve seen some with random terms like NET53. I always try to negotiate to be met at the industry standard. For longer term contracts, I try to break out scheduled payments. Asking for 50% up front is not entirely unprecedented for a contract that is longer than three months. If you’re looking at even longer terms, consider requesting monthly payments instead.
Lastly, if you can manage it, I would try negotiating terms for late payments. Looking at the last year of payments due for influencer collaborations that I’ve managed, more of them were paid late than on-time. To be fair, most are only a week or two late, however, requesting the addition of late fees for payments that are beyond 30 days past due is a reasonable ask, and something that I would always shoot for.
This is something that may or may not have been included in prior conversations before getting to the contract phase, but either way, this clause, if included, needs to be reviewed closely. If a brand does require exclusivity in the category, it is important to ask them to explicitly state which brands you are not allowed to work with, or publish, and for how long. Not only is this beneficial to see the scope of the businesses that are perceived as competitors, but it also eliminates any confusion or uncertainty when it comes to any other brand partnerships you might be taking on.
If a brand does require exclusivity in the category, it is important to ask them to explicitly state which brands you are not allowed to work with, or publish, and for how long.
Exclusivity should have a fee associated as well. A general rule of thumb is for each month of exclusivity, you charge the cost of the scope. So, let’s say you are working with a beverage brand, and they would like to engage you for one month at a rate of $1000, but the exclusivity in the beverage category spans for three months following the term. You would then bill a total rate of $4000 ($1000 for every month of exclusivity + the initial rate). The logic behind this is: for every month that you are required to uphold an exclusivity clause, you are excluding yourself from potential paid work for the agreed upon rate in that category, and you should be compensated accordingly.
Not every brand is going to go for this, and it’s likely the large majority of them won’t. A few options you have are: 1) Ask for exclusivity to be removed all together, 2) Compromise on a rate for exclusivity, or 3) Narrow the scope of brands under the exclusivity term until you feel comfortable.
Description of Service.
This section should include the mutually agreed upon scope of work; including deliverables, timelines, approvals processes, and any creative guidelines. These details are often included in an “Exhibit” or “Schedule”, so if you don’t see it in the initial part of the contract, know that it will likely be included toward the end. Make sure this section reflects the scope that was mutually agreed upon.
Sometimes the creative guidelines will be an entirely separate document all together. If the contract requires you to adhere to all creative guidelines, make sure you have them prior to signing the agreement. These seems like a no-brainer when you read about it here, but it is a detail that is often overlooked. Sometimes contracts will say that the guidelines will be provided by a certain date within the term, but there’s nothing worse than agreeing to a collaboration, and then receiving creative guidelines down the road that aren’t on brand. Having the final guidelines in hand to review before signing is imperative.
If there is a clause that is often the biggest hang-up on contracts that I negotiate, it will probably be indemnification. If the brand or agency is an “indemnified party”, a clause of this type is a promise by the other party (you) to cover their losses if you do something that causes them harm or causes a third party to sue them.
If the brand or agency is an “indemnified party”, a clause of this type is a promise by the other party (you) to cover their losses if you do something that causes them harm or causes a third party to sue them.
Example: If you, the influencer, post about a beauty product that has an adverse side effect that you didn’t disclose, and then someone is sick or injured and decides to sue the beauty brand because of the social media post they saw you publish, you would be held liable for all costs incurred to the brand or agency. This could be tens of thousands of dollars.
For this reason, I will not sign an agreement unless there is mutual indemnification; basically each party agreeing to hold each other harmless. Seems fair right? I will say it again for good measure because this may be one of the most important clauses in your contract, MUTUAL INDEMNIFICATION people! In most contracts that I read, mutual indemnification is not the default. I recommend searching for, or working with a legal team to craft language that articulates mutual indemnification, and having it on hand to share with the brand. Oftentimes, brands will drag their feet on including this in their agreements, so being able to do the legwork and provide the language that you would like them to react to helps move the process along.
The use of someone’s likeness comes in many different forms. In the case of a social media collaboration, this usually includes their name, image, social media handles, “biographical information” aka details about your life, and potentially more. When this type of clause is included, it is usually to cover the use of your likeness within the context that the brand or affiliates have approved usage for. However, I have seen in a significant portion of the contracts the right to use an influencer’s likeness in perpetuity. That is a hard no from me, girl!
If a brand has a right to your likeness in perpetuity, it means they could use your image and social media handle(s) in future advertising campaigns down the road, and you wouldn’t be obligated to any compensation.
If you see this in your contract, make sure the likeness is restricted only to the content created for the campaign, and only for the mutually agreed upon term of the agreement, and no longer. If a brand has a right to your likeness in perpetuity, it means they could use your image and social media handle(s) in future advertising campaigns down the road, and you wouldn’t be obligated to any compensation. No go!
This is where we start to dig into copyright law. A phrase to look out for in this clause is “work made for hire”. If this is included, it generally assigns the initial owner of the copyright of any content created to the brand or agency. I don’t advise on these terms, under one exception: the brand has previously stated and negotiated payment for full rights to the content. I myself have sold full rights to images for anywhere between $1000 and $5000 depending on the category, initial content creation costs, and possible use (it’s always good to start by assuming this image could end up on a billboard).
The best case scenario is to retain ownership over all content created, and 99% of the time, I won’t sign a contract without those terms.
Other Points to Consider
One of the biggest money-makers as an influencer, is offering brands license to use your work. It goes back to my previous point, that retaining rights over your content is critical. In doing so, you can be more specific about what you would like to compensated for specific use of your content. If a brand wants to use an image for a social media advertising campaign, you can ask what the anticipated spend of the campaign is, how long it will last, and if they will have rights to alter your work. All of these things play a role in how you price.
One of the biggest money-makers as an influencer, is offering brands license to use your work.
I could, and will, write an entire blog post on licensing formulas for your content. But, for now, I will say, it is important to do your research on how much you should charge to license your content. This article from FStoppers is a good jumping off point, and where I started when I was learning about the cost structure of these types of fees for photography. I highly recommend giving it a read!
This section predominantly dictates when and where a brand is able to use the content an influencer creates. Sometimes these sections are as simple as the brand claiming they are able to repost your content on their channels with credit – pretty standard. Other agreements claim that the brand and its affiliates are able to use your content in perpetuity (forever and ever) in all sorts of ways, e.g. digital ads, website, banner ads, print assets… the list goes on. This additional usage should be assigned a separate fee, especially if they are using your content in ads.
Additionally, there is typically a term associated with usage that may be different than the contract term. Be sure to review this closely. If the term of the usage rights go beyond the term of the general agreement, this is something you can charge a fee for, or negotiate to be reduced to the term of the general agreement.
Some contracts have language that puts the burden of drafting and procuring signed releases of anyone else who might be featured in your content. While I think having the task of getting the releases signed in the influencer’s court is reasonable, it should be the brand or agency’s responsibility to draft the release to ensure alignment from their legal team.
In a smaller percentage of contracts I review, there is a requirement for some form of liability insurance. As long as you aren’t hosting an event on brand or agency property, this is usually a clause you can easily have removed. Sometimes the brand or agency will still want verbiage included that acknowledges the lack of insurance. This is usually labeled as a “No Insurance” clause and protects both parties.
If you are required to have liability insurance, this is a cost that you should bake into your final fee.
If you are required to have liability insurance, this is a cost that you should bake into your final fee. The median annual cost of liability insurance is around $500. So, if the term of your agreement is for six months, you should be charging around $250 to cover your cost of insurance. Note: this is an approximation, and may not be reflective of your actual costs. Additionally, some brands or agencies may require you to provide proof of coverage and monthly payments to justify this line item in your final agreement.
A clause that I push for brands to include in their contracts when I’m helping them build influencer marketing campaigns is an authenticity clause. This isn’t something that you will see in many other business contracts. Why? Because it directly pertains to influencers. This clause will require that the influencer guarantee their following is authentic, and that all engagement on content created for the campaign also be authentic. This gives the brand a right to audit the performance of the content and their following. If they have a reasonable suspicion that either have been purchased or are “bots”, they are able to terminate the agreement, and recoup any losses from the project.
Why do I mention this clause? Because I think it is important for brands to include. It puts influencers on notice that brands and agencies are keeping an eye on them, and take fraud seriously.
Why do I mention this clause? Because I think it is important for brands to include. It puts influencers on notice that brands and agencies are keeping an eye on them, and take fraud seriously. As an influencer, if you see this clause, accept it. Pushing back on it would be a huge red flag to a brand, and likely lead to the termination of the agreement before it even started.
As I’m sure a lot of you know, the Federal Trade Commission (FTC) has released guidelines for social media influencers, thanks to mega-influencers like Kim K hawking get-skinny gummies and the proliferation of the Fyre Festival debacle. These guidelines are quite vague, and legal teams have interpreted the minimum standard in a variety of ways; including everything from “implied endorsement” (meaning an influencer has a significant public presence and if they talk about a brand publicly, it is assumed it is an endorsement), to using #ad or the Paid Partnership tool in Instagram. The FTC Compliance section of the influencer contract is designed to protect the brand or agency by proving they warned all influencers to follow the letter of the law. If you’re curious, you can see the guidelines here.
The reason I mention this clause is because, like an authenticity clause, I think this is imperative for brands to include. I’ll take it one step further… if it isn’t included, it should be a red flag as an influencer. This should prompt you to ask how they intend on you disclosing for the campaign. Like everything else I mentioned, ask them to put the specifics in writing.
Whew! That’s the end of the road fam. If you made it this far, I am proud. of. you. This information is a little mind-numbing, but it is important for you to understand. As always, my proverbial office door is open. Please leave any questions you have in the comments, or slide into my DMs on Instagram. I’m here for you!