Paul Gelb

Businesses that want to feature their products in bricks-and-mortar retailers can negotiate to place their products at the front of the aisle, but online, companies have to find new ways to stand out. These days they sometimes turn to social media influencers who can direct traffic to the company’s products. When working with influencers, remember these five things.

1. Choose the Right Influencer for Your Market

Some influencers have an enormous following. Selena Gomez has 123 million followers, and Kylie Jenner has 96 million. Other influencers have a niche category of followers. For them, the number of followers does not have to be very high because they have a strong impact on their followers. An influencer with 500,000 followers accomplishes two things. First, that individual has a talent for attracting  followers and creating trends, which is the job of the influencer. Second, they can have real impact and can be effective in developing the digital presence of a brand.

2. Specify the Influencer’s Activities

It is important for the influencer agreement to detail the influencer’s activities. For instance, the agreement should specify the frequency of the influencer social media posts and the types and length of posts that are required under the agreement, and should include a provision for the company to be able to re-post social media activity through its own digital media channels. If the agreement obligates the influencer to participate in a photo shoot and the company wants the influencer to post on Instagram from the photo shoot then the agreement should specify that. There might be other norms depending on the company’s market sector. The more of these expectations that are specified in the influencer agreement the better the engagement will be.

3. Remember Exclusivity

During the term, the influencer contract should be exclusive. Competitors within the market segment need to be specifically defined and the influencer should be prohibited from entering into a comparable contract with a competitor until after the influencer agreement has expired. At times, the influencer will have their own brands in the market segment and that can be addressed in the agreement. But they should certify that they have no existing contracts with the listed competitors and that they will not enter into an influencer agreement with a competitor during the contract term.

4. Include a Well-crafted Termination Provision

There are times when the agreement with the influencer will have to be terminated. The best way to allow for this is to provide for termination by the company for convenience at any time. The agreement also might specify in detail what the influencer will have to do under the agreement and to provide for termination in the event of a material breach. The provision can also provide for termination of the contract in the event the influencer is convicted of a felony or crimes of moral turpitude or in the event of personal insolvency or bankruptcy.

5. Comply with the FTC Guidelines

The Federal Trade Commission (FTC) has published guidelines that require influencers to provide disclosures with their posts. On April 19, 2017, the FTC issued a press release stating: “We’ve been spending some time on Instagram lately. Why? Because advertisers, endorsers and consumers are spending time there, too. What we saw raised concerns about whether some influencers are aware of truth-in-advertising standards about endorsements and disclosures. So the FTC staff sent 90+ letters to celebrities, athletes, and other influencers – as well as to the marketers of brands the influencers endorsed. Our goal is to influence influencers to comply with those established principles in their Instagram posts.” Company agreements with influencers should make sure that the influencers comply with the FTC Guidelines.

Putting the right thought into how your company chooses a social media influencer and what provisions it includes in its contract will give the company an edge in its online presence and digital marketing strategy.

Author Bio:

Paul M. Gelb provides legal counsel to mid-market companies in all aspects of their businesses including advertising, marketing and promotions, privacy, technology transactions and e-commerce. Mr. Gelb is Counsel with Drinker Biddle & Reath LLP and can be reached at 310-203-4028 or Paul.Gelb@dbr.com.
Read the original article at AMA.org.

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