Social media is becoming more and more entrenched in our daily lives. Recent studies show that well over 70% of Americans have an account on at least one social media platform. While the use of social media continues to grow, the application of these platforms goes beyond communication uses. It delves into areas such as shopping or providing health, fitness, or wellness advice. As a result, the value of social media as a business marketing tool has never been higher. Businesses have been pouring marketing dollars into social media over the past decade, and, in 2021, experts estimate that U.S. social media ad spending will approach $49 billion.
One of the most common ways businesses have attempted to cash-in on the popularity of social media networks is by utilizing social media “influencers” to endorse their products and spread brand awareness. A social media “influencer” is effectively an individual: (i) whose social media account(s) has a strong “following,” either in terms of raw numbers of “followers” or in terms of the ability to reach consumers in a certain target demographic; and (ii) who gets paid to “post” image(s), video(s) or other content on their social media account endorsing, or otherwise marketing, the products, and services of businesses. An influencer could be anything from a traditional celebrity (think a “Kardashian”); to professional athletes (both in terms of the “major” sports leagues [NFL, NBA, MLB, etc.], as well as triathletes, runners, bikers, swimmers and other high-level “Olympic” or “endurance” sports athletes); to personal trainers, wellness experts, chefs, parenting bloggers, online “gamers,” travel bloggers and any other individuals with strong followings within their respective niche. In fact, over the last few years, the types of influencers have proliferated greatly, with influencers now filling every conceivable niche and sub-niche.
Social media influencers can provide a great marketing value for businesses, as their endorsement activities provide companies with a way to directly reach, engage and interact with whatever sub-segment of consumers they deem to be their desired target market. In addition, influencer content always has the ability to go “viral” (meaning that the post is “liked” and “re-shared” by numerous followers), which obviously can provide, at no additional cost, enhanced PR and marketing benefits.
Therefore, there are many great reasons why a business may elect to utilize social media influencers to market its products or services. However, when doing so, it is extremely important to have a written endorsement agreement with each influencer that clearly outlines each party’s rights, responsibilities, and compliance obligations. Here is a brief summary of certain key topics that should be addressed in any good influencer endorsement agreement.
CONTENT PRODUCTION / CONTENT OWNERSHIP
The heart of any social media influencer endorsement is to clearly define what “content” the influencer will produce and post for your company. Specificity is absolutely crucial to avoid future issues down the road. A few common issues to consider:
- What is the required format (blog or other written post, image, video, etc.) and the length of the post?
- What is the desired content of the posts?
- At what intervals will the posts be made and on what platform?
- How long must each post remain visible on the applicable platform?
- How will the influencer be expected to promote their posts?
Perhaps most importantly, the agreement should require that the company have the right to approve all influencer “content” before it is posted on any social media platform.
The agreement should also clearly address the often ambiguous topic of content “ownership.” Does the company or the influencer own any content created as a result of the agreement? Alternatively, the parties may adopt a “hybrid” model as a compromise, for example, where the influencer maintains ownership of their content, but the brand can use it however they wish for a specified period of time.
The attorneys at Fitzpatrick Lentz and Bubba, have extensive experience advising businesses on influencer and similar advertising agreements. For more information, please contact Ken Charette or any other attorney in our Corporate Business & Banking Group.
Reprinted with permission from the Spring 2021 Edition of Network Magazine. © 2021 All rights reserved. Further duplication without permission is prohibited.