Timothy A. Koonce: STOP: Don’t Use Influencer Marketing Without Reading This Post

By Kerry Gorgone, {grow} Contributing Columnist

Influencer marketing is more popular than ever. Brands like Adobe, Verizon, and many other brands have all tapped influencers to achieve their marketing goals, and it’s working. According to a study from Tomoson, businesses earn $6.50 for every $1.00 spent on influencer marketing.

If you’re not incorporating influencer marketing into your mix, you should at least be thinking about it. But before you take the plunge, lay some groundwork. I’ve covered the legal risks that arise in influencer marketing and blogger outreach here on {grow} and on my blog at KerryGorgone.com, so go check out those posts if you need a refresher in the importance of disclosure in influencer/brand relationships.

It’s been clear for some time that the Federal Trade Commission (“FTC”) was getting progressively more strict in their approach to influencers posting sponsored content without the proper disclosures. First they updated their disclosure guidelines in 2013, then they issued some clarifying questions and answers in 2015.

Then they started issuing warning letters to brands like Cole Haan and Lord & Taylor. In 2017, the FTC issued reminder letters to individual influencers and marketers insisting that they reveal their business relationships when posting sponsored content.

There’s nothing illegal about sponsored content or influencer marketing, unless it’s not clearly labeled as advertising. The goal of consumer protection laws is to ensure that the public knows what endorsements are motivated purely by a love of the product and which are partially motivated by money or swag.

As a brand working with influencers, the onus falls on you to make sure that the bloggers, Instagrammers, YouTubers and other influencers you work with comply with legal disclosure requirements. Think of it this way: it’s easier and more efficient for the FTC to crack down on the brands that pay influencers than it is for them to chase down the millions of individual video bloggers, Twitter celebrities, and other people who’ve managed to monetize their online followings.

If you want to recruit influencers to amplify your brand message, do it, just be smart about it. First, check out my {grow} post: a checklist for safe influence marketing.

Second, work with a practicing attorney who specializes in social media law (like Sara F. Hawkins) to create a contract you can use to govern each of your influencer relationships.

In addition to the practical matters of what influencers will receive from your brand, what kinds of content they’ll be expected to create, how success will be measured, etc. (all of which is covered in this helpful post by Erika Heald), you’ll want to include your expectations about compliance, as well.

When working with influencers, here are some of the legalities you’ll need to cover:

Effectives Dates and Compensation

This is business 101, but make sure that your contract includes a start date, an end date, and specifics on payment. How much will the influencer receive? When will he or she receive it?

What does he or she need to do in order to satisfy their obligations—host a Twitter chat, interview you for a podcast, write three blog posts, etc. Erika’s post above has some excellent suggestions on ways to leverage the influencer relationship.

Do they have to meet certain goals as measured by specific metrics in order to qualify for payment? Lay it all out in writing.

Copyright ownership

Unless the photos, videos, blog posts, and other content you’re asking for are “works for hire,” the individual influencers will retain full copyright ownership. This is likely fine, as your interest isn’t in the work itself so much as the exposure it will bring your brand, but it’s something to consider.

If you intend for the works to be “works for hire” (owned by your brand), you’ll need a written work-for-hire agreement. If, however, you intend for the individual influencers to retain copyright ownership but give you a license to use (or re-use) the content they create for marketing, state that in your contract. (Make sure the license is irrevocable and doesn’t expire).

You’ll also want to get the influencer to promise that the content he or she publishes as part of your campaign is their own original work, and none of those works infringe on someone else’s copyright.

Disclosure

Insist in no uncertain terms that influencers explain that they have been paid by your brand (or received an all-expenses-paid trip or free samples or whatever) every time they post about you. You’re likely going to retain the right to review sponsored posts before they go live, so make sure to include disclosure on the list of things you review and approve prior to publication.

Some things to know: the FTC has indicated that “#sp” or “thanks, [brand]” or #partner aren’t clear enough for the average person to understand that there is some kind of “material connection” (e.g. money or free stuff changing hands) in an influencer relationship. Offer examples of clearer language influencers can use.

For example, on Twitter, suggest terms like “client” or “ad,” and full-sentence disclosures like “Thanks [brand] for the free trip to [Resort Name]!” The more descriptive, the better.

For longer posts hosted on the influencer’s own site, there’s plenty of room for a full explanation. Was he or she paid? What free goods or services did the influencer receive? Do they have an ongoing sponsored relationship with you, the brand?

Many influencers will simply post a general disclosure that says something like “some of the posts on this blog are sponsored” or “some pages include affiliate links.” This disclosure won’t be sufficient, because it’s entirely possible someone coming to an influencer’s site to read one specific post will never click over to that other page.

Require influencers to disclose the sponsored nature of the content on each blog post, in each video, and as part of every social media post about your brand.

Contests and Giveaways

Promotions like contests and giveaways are especially tricky. You can get a good background on the legal aspects of running these from my blog, but if you intend to authorize influencers to run contests or giveaways as part of your campaign, make sure they’re adhering to legal requirements, as well as the policies of whatever social networks they’ll use to run or publicize them.

The vast majority of legal headaches that arise from influencer marketing could be prevented with a little pre-planning. If you’ve already done blogger outreach without these precautions, it’s never too late to start doing things right! I hope this post will serve as a kind of public service announcement for brands: there’s true power in influence marketing, but as a wise man once said, “with great power comes great responsibility.”

Kerry O’Shea Gorgone is a writer, lawyer, speaker and educator. She’s also Director of Product Strategy, Training, at MarketingProfs. Kerry hosts the weekly Marketing Smarts podcast. Find Kerry on Twitter.

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