S2, Episode 13: Social Media Influencer Agreements

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

“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

“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

“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

Mentioned in This Episode:

Additional Resources: 

Sponsors: 

 

Disclaimer:

The information contained in the Startup LAWnchpad podcast and any materials associated therewith (the “Podcast”) is for educational, informational, and entertainment purposes only. It does not constitute legal advice or tax advice with respect to any particular circumstance. The Podcast is not a complete overview or analysis of the topics presented, and may contain information that varies in different jurisdictions and is subject to revision, interpretation, or nullification after the date of recording. The transmission of information to you does not create a lawyer-client relationship between you and any host, guest, or their respective employer, including but not limited to Fordham University School of Law and Lincoln Square Legal Services, Inc. None of these parties shall be liable for any loss that may arise from any reliance on the Podcast. You should not rely upon the Podcast or treat it as a substitute for legal advice. You should consult a lawyer familiar with your particular circumstances and licensed in your jurisdiction for legal advice.

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.