Over the past year or so, I’ve had the joy of watching the evolution of influencer contracts. In my experience, most non-celebrity influencers have chosen to represent themselves while the hiring company certainly has a lawyer drafting and negotiating on its behalf. The compensation and deliverables are beginning to allow for a somewhat methodic approach. However, the rest of the contractual provisions are inconsistent across the marketplace, tending to disfavor the influencer.
Compensation is typically based on the number of followers an influencer has and the deliverables. Most contracts I’ve seen involve influencers with at least 100,000 followers (generally measured from Instagram), though “micro-influencers” (i.e., those with 10,000-100,000 followers) are certainly out there and getting a bit of pay for their social media reach. Compensation on a single post ranges from $250 for an influencer with 5,000 followers to more than $100,000 for one with $1MM+ followers. The standard contract involves more than a single post, though: anywhere from 3-5 posts per day to six posts a year. While these might seem like broad ranges, once we know the number of followers and have a list of deliverables, the compensation can be calculated within the ranges already determined fair by the market.
The remaining provisions are surprisingly variable. Ideally, every influencer contract would contain provisions for the company’s usage after termination, a spectrum of requirements from company approvals and FTC guidelines to a “morals clause,” metrics/analytics reports to the company, termination, confidentiality, and more. I’ve seen some contracts lacking a provision for approvals, others silent as to use of the postings after expiration of the contract; use-of-likeness clauses absent in many contracts, boilerplate (i.e., choice of venue, severability, limitations of liability) missing from many others.
This hodge-podge of deficient contracts likely reflects the sundry level of legal knowledge among micro-influencers who have chosen to represent themselves. After all, legal fees might easily consume 10%-20% of a micro-influencer’s compensation on a project. This would also explain why most abridged contracts tend to disfavor the influencer.
Once, an influencer told me she never reads or signs a contract over five pages. Understandable from a lay perspective: much of the time, barebones, written understanding is enough, and everybody is happy. Yet thorough contracts are necessary precisely for those times when problems arise, foreseeable, and unforeseeable alike. Ultimately, influencers should consider hiring an attorney, if only to develop an in-house template, rather than relying on whatever contract is handed to them.
Please contact me at davefaux@dhf-law.net with any questions.
