Use Clear Language to Mitigate Disputes in Influencer Marketing

A company’s brand faces risks from its influencer marketing through legal and regulatory issues with enforcers and third parties, but also based on direct disputes between the brand and influencer.

A well-drafted agreement can mitigate much of the potential for conflict. Attorneys should work closely with the brand’s marketing team to understand the goals and logistics of the campaign, then draft an agreement written in plain English that accurately reflects the parties’ understanding. Companies should address several key issues.

Brand Approval, Removal Rights

All posts must be provided to the brand for approval prior to posting, and the brand should have the ability to request the removal or correction of any posts for any reason within a very quick timeframe—usually 24 to 48 hours.

The brand must have internal processes for continued monitoring of influencer content in a similar manner as you would any other advertisements to ensure legal compliance.

Exclusivity

The contract should clearly outline the period that the influencer can’t work with competitors, as well as the scope of that exclusivity. This may include whether they are just restricted from posting content related to competitors or whether they can’t attend certain events or comment on social posts. If feasible, the contract should say whether the influencer can specifically name competitors.

Normally, lawyers like to make contract language about competitors intentionally broad and vague. But in the case of working with influencers, it is often more beneficial to specifically name the restricted competitors to avoid confusion and disputes. It is better to make it easy for the influencer to comply with the exclusivity terms—especially because this is rarely something you would actually litigate.

Confidentiality

Because an influencer may be exposed to information about the brand, confidentiality must clearly be laid out in the agreement. The scope should include information that may not have been disclosed to the public, including information about the influencer engagement, such as the fees and contract terms.

Additionally, clearly state that the confidentiality obligations survive termination or expiration of the agreement indefinitely or for a set period.

Non-Disparagement and Morals

Ensure that the agreement addresses not making statements that negatively portray the brand. The agreement also should restrict the influencer from engaging in any conduct that would shock, insult, or offend the general public, or harm the reputation of either the influencer or the brand.

Influencers may push back on the language in these clauses, which brands can often handle by making them mutual. Another thing to consider is that depending on the contract value, sometimes it’s easier to agree to narrow the morals clause.

If the influencer did something that could cause reputational harm to the brand, it would likely be easier to have them take down existing posts and not post any new sponsored content, even if the brand wasn’t going to get any money back. In most cases, the cost of litigation would be greater than the amount you’re paying the influencer.

IP Ownership, Licenses

Many brands’ position is that the company must own all copyrights in creative works by independent contractors, including influencer content, and any requested deviation from this norm is a non-starter. But we’re more frequently seeing influencers (or their agents—yes, many are represented now) pushing back and insisting on the influencer owning the copyrights in the content.

While the kneejerk reaction for many lawyers may be to insist on the brand owning the rights, it might be valuable to reconsider this position. If it makes sense in the context of the deal, allowing the influencer to own the content can be an easy “give” during negotiations, enabling the brand to push for lower rates or focus on remaining firm on other issues that are often more valuable.

For much branded content, there is almost no conceivable use outside of the deal with the brand, so the risk of an influencer repurposing or otherwise monetizing it is often not a realistic concern. Regardless of whether the brand or influencer is going to own the copyrights, the contract should clearly state what each party can do with the content, such as whether it can be reposted by the brand, whitelisted, or promoted via paid media.

The agreement should also provide a license to the influencer for use of the brand’s trademarks as they appear in the posts, and a license of the influencer’s name, image, and likeness as it appears in the posts (if the brand will be reposting on the company’s social accounts).

Finally, even though there will be a limited timeframe for posting the content, the agreement should ensure that the licenses above should be in perpetuity regarding content that was properly posted during the term, which removes an obligation on the brand to go in and proactively remove old posts.

Payment

Although many influencer deals are for small amounts, it is still best practice to avoid paying it as a lump sum. If an influencer breaches the agreement, particularly in the case of things such as inadequate disclosures, it is easier to course-correct and force them to correct or take down a post if the brand still holds the purse strings.

Additionally, in negotiations with influencers, it’s not uncommon to see comments about “pay or play” in response to language such as, “the brand may, but has no obligation to post the content.”

Generally, this is an easy give. If the brand doesn’t want to use the influencer, even caused the influencer’s breach (such as the morals clause), it’s often easier to withhold payment or cheaper to just pay them than it would be to fight the battle in a courtroom.

A thoughtfully drafted influencer agreement is one of the most effective tools for reducing legal risk and preventing disputes. By collaborating closely with the brand’s marketing team, attorneys can ensure that the contract aligns with the campaign’s objectives while clearly setting expectations. Addressing key terms provides a solid legal foundation and fosters a smoother, more productive relationship between brands and influencers.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Cassidy Merriam is senior corporate counsel for Dish Network.

Write for Us: Author Guidelines