Season Two: Episode Thirteen — An overview of the legal obligations surrounding social media influencer agreements, the role of the FTC, and some of the most common legal issues surrounding this relatively new form of branding and marketing.

Episode Description: Tommine McCarthy (Fordham Law ‘20) and Shirley Ureña (Fordham Law ‘20) interview Hannah Taylor, Partner at Frankfurt Kurnit Klein & Selz, about social media influencer agreements in which a brand enters into a contract with an influencer to create content that promotes a brand on social media. The discussion includes details about exclusivity, termination, specificity, and ownership of influencer content.

Episode Roadmap:

[:30] Tommine McCarthy (Fordham Law ‘20) and Shirley Ureña (Fordham Law ‘20) define social media influencer agreements and welcome Hannah Taylor.
[2:52] Understanding the advantages and disadvantages of utilizing social media influencers.
[6:55] Does the liability for non-compliance lie with the brand owner or the influencer?
[8:53] Understanding the level of influence and substantiation the brand is allowed to have on the influencer’s opinion of a product or experience.
[12:13] An overview of the scope of work and content provided by the influencer, including approval rights, visibility, and ownership.
[17:25] Is it typical for a brand to ask for influencer exclusivity, and how does non-compete law factor into this?
[19:15] Contests, sweepstakes and promotion law factors for influencers.
[23:18] Common compensation structures for paid posts and the benefits of being a micro-influencer.
[26:02] Highly negotiated terms in an influencer contract include exclusivity, termination, morals, and money.
[29:20] Common mistakes brands make when entering into influencer agreements such as not including specific content and monitoring policy requirements.
[32:15] Recommendations for new entrepreneurs’ monitoring programs and why specificity always wins.

Tweetables:

“The FTC can go after whomever they want to go after. It’s the FTC’s job to make sure that consumers are not deceived.” — Hannah Taylor

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“Some guidance from a brand about what a product does and appropriate ways to speak about the product is always a good idea.” — Hannah Taylor

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“The main advertising rules from the FTC are don’t lie and don’t be unfair. Pretty simple, but the ways in which they think things are deceptive, lying, or unfair are pretty nuanced.” — Hannah Taylor

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“It’s not only money that can constitute a material connection between a company and an influencer. It’s anything of value or anything that could bias somebody….including free products.” — Hannah Taylor

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Mentioned in This Episode:

Hannah Taylor

Additional Resources:

Fordham’s Entrepreneurial Law Clinic
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Startup LAWnchpad is the podcast that educates entrepreneurs about forming, growing and protecting a startup. Startup LAWnchpad is produced by the Entrepreneurial Law Clinic at Fordham University School of Law in New York City.