Influencer Law Firm, a division of Heitner Legal, is your one-stop shop for all legal services related to social media influencers, including but not limited to trademarking, copyrighting, contract drafting and negotiation, and compliance with advertising laws. Contact us with any questions.
Social media influencers have a sincere need for top-of-the-line legal services. They are part of an industry that has grown alongside the proliferation of social media networks such as Twitter, Facebook, Instagram, YouTube, Snapchat and TikTok.
Today, many people call themselves Instagram influencers, YouTube influencers or the like, but the true social media influencers are those who have been able to build successful brands, have business plans in place and understand the capacity of commercializing their influence. Those social media influencers are the ones who are always best served by having a law firm assist them to reduce legal exposure and protect their interests.
There are more than 1.1 million licensed lawyers in the United States alone. Thus, social media influencers have their pick of lawyers should they be interested in having someone by their sides protecting and promoting them as they grow their brands. But not all lawyers and law firms are alike. Social media influencers would be wise to carefully select a law firm like ours and a lawyer like Darren Heitner with experience working alongside some of the most prominent athletes, celebrities, entertainers and social media influencers.
What Types of Legal Services Should a Social Media Influencer be Looking for?
There is no one-size-fits-all set of legal services that are most appropriate for social media influencers; however, there are areas of the law that tend to be much more relevant for social media influencers than others. As such, I will focus on those areas of the law that may resonate most with social media influencers here, even though we can provide other legal services for social media influencers depending on their specific needs.
Contracts to Perform Services.
Social media influencers are typically providing a service for third parties by way of promoting their goods and/or services. While sometimes these services may be delivered by social media influencers as a gift, without any consideration being part of the equation, more often than not a social media influencer expects to receive something in return for the value that he or she is adding to a third party.
A contract has three key elements: (1) offer; (2) acceptance; and (3) consideration. A social media influencer may receive an offer from a third party or proactively present an offer to a third party. Depending on the outreach, either the social media influencer or the third party will be in a position to accept the offer as presented or counter the offer, which effectively serves as a rejection of the prior offer. The element of consideration is present as long as either side of the bargain receives a benefit. In almost all circumstances, the social media influencer will be the recipient of the consideration. Ultimately, if there is a meeting of the minds, then a contractual relationship is created.
While certain oral contracts are deemed valid, they can often be extremely difficult to enforce. There tends to be a lack of evidence to support the positions of both sides, and important clauses that would otherwise be contained in a written document are absent in a situation where no written, signed contract exists. Additionally, because many of the deals between social media influencers and third parties may be one-off styled arrangements with what could be construed as a nominal fee attached, it may not be worthwhile entering into a formal dispute without the presence of a strongly written contract.
Thus, it is recommended that social media influencers retain legal counsel to draft, review, revise and negotiate contracts with third parties. This can be accomplished on a case-by-case flat fee basis or by having a lawyer on retainer who will bill against the retainer based on the amount of time spent on each contract, whether it be drafting or negotiating same.
When a lawyer is involved, he or she should be focused on a variety of specific clauses in these types of social media influencer contracts. The following are some important sections to be aware of, even if you are hiring a lawyer to handle the process. You always want to play an active role in these negotiations and understand what you are getting yourself into from a legal standpoint.
- The Parties. The beginning of any social media influencer collaboration contract should include a clear designation as to the parties that are entering into the contract. It is important to make sure that you are entering into a contract with the proper corporate entity and that the corporate entity has the assets to pay you. If not, then you will want to negotiate for some guaranty that another company or individual will make payment if the company that you are contracting with ultimately defaults on its obligations. Also, you should consider whether you, as a social media influencer, wish to contract in your own name or set up your own corporate entity to enter these types of contracts. We have assisted many people with incorporating these types of companies (often referred to as loan out companies) that then furnish your services, shielding you from legal exposure and potentially providing you with significant tax benefits.
- Agreed Services. The more specification in this area, the better, although that is the general rule for any contract. You really want to be careful to avoid ambiguity in this section. Have a full understanding of the services that you are going to provide. For instance, how many social posts will you be delivering? Will it be actual posts, stories or a mix? On which social media platforms are you required to post? Is there a timetable within which you must provide your postings? Will the third party have quality control over the content that you publish (i.e. will the third party have the right to review and/or control the content that you post prior to publishing)? These are a few of the considerations that should be thought about in virtually every social media influencer contract with a third party.
- Post Requirements. Again, the more specificity, the less likely that a dispute will arise and, in the case that there is a dispute, you will be able to easily point to the language in the contract to support your position. In this section you can clarify what exactly satisfies your obligations per post. This is important, because sometimes a third party may have buyer’s remorse after the fact and seek to either claw monies back or not pay you at all. But if you clearly set forth your minimum obligations and document compliance with same, then you should be in the driver’s seat should a dispute erupt. This is the section where you want to specify whether any goods need to be featured in the posts, any requirements regarding descriptions, hashtags to use or accounts to tag and any other styling requirements.
- Compensation. This is often viewed as the most important component of a contract, but it tends to be the simplest part to draft. Here, you not only want to specify the amount of money that you will be due, but also when you will be paid (prior to delivery of services, afterward or some other arrangement), how you will be paid (check, wire, PayPal, Venmo, Zelle, etc.), where you will be paid (personal account or elsewhere), what exactly you are being paid for (is it simply posting the content or something additional).
- Exclusivity. You need to be very careful to understand and appreciate whether the third party expects you to not appear in connection or otherwise work in collaboration with any competitor. Importantly, if exclusivity is required, then a clear and concise definition of what brands are considered competitors is paramount. You do not want to violate an exclusivity provision by associating with a brand that could be deemed to be a competitor. Another vital component in this area is defining how long the exclusivity window will last. It should never be in perpetuity. You want to negotiate it to be as small as a window as possible or, in the alternative, make the third party pay a premium for a longer exclusivity term.
- Morals Clause. Brands may try to breach a contract, with permission, if a social media influencer is found to engage in any sort of activity or behavior that the third parties believe to have a negative effect on their reputations. Careful consideration should be paid to these types of morals clauses to ensure that they are not overbroad or vague. This will limit a third party’s ability to back out of a social media influencer collaboration deal unless a specific set of circumstances are established.
- Breach. What happens if either party does not perform on its obligations pursuant to the terms of a social media influencer collaboration contract? The language of the contract should make that very clear. For instance, if you fail to publish an Instagram story between 6:00pm and 8:00pm on a given day, can you cure your breach upon receipt of notice? If so, how long should you have to cure? What if the third party does not pay you the compensation you are owed under the contract? Should you be entitled to interest? Can you be reimbursed the fees and costs you pay to a lawyer in order to receive the compensation you earned? You need to ensure that this language in included in the contract if it interests you.
- Licenses. The social media influencer is likely the content creator (i.e. he or she is capturing the photography or video that is ultimately uploaded and posted onto a social media network such as Instagram). As such, the copyright to that content is owned by the social media influencer. Should the third party have a right to reproduce, copy and publish that content? It needs to be clearly set forth in the contract. Should the third party be able to use the social media influencer’s name, image and likeness to promote its goods or services? Again, this should be laid out in the contract and the social media influencer should ensure that he or she is being fairly compensated for these additional rights.
- Governing Law and Jurisdiction. No social media influencer enters a contractual arrangement with the goal or belief that the business relationship will be a subject for dispute. However, social media influencers should always be viewing these contracts with an eye for what will happen if the parties do end up in dispute and have the need to adjudicate it. Will it be handled in a court of law or by way of arbitration? In which country, state, county will the dispute play out? Which jurisdiction’s laws will control? These are all important considerations for any contract, including those entered by social media influencers.
Intellectual Property Protection
Social media influencers have a unique opportunity to build a robust intellectual property portfolio. By being thrust into the spotlight personally, and through their content creation, they truly have a need to be proactive with regard to their protection of intellectual property against those who may infringe and/or dilute the social media influencers’ brands and creations. Below, I touch on a few areas of intellectual property that social media influencers should be paying attention to, only broadly covering each topic. I am more than happy to engage in a consultation with any individual concerning the topics that are briefly covered.
- Rights of Publicity. By 2022, influencer marketing spending is projected to reach $15 billion. Surely, there is tremendous value to the content that is created and published by social media influencers. However, the intrinsic value for brands associating with social media influencers is in the actual people who are behind the content. It is the name, the image and the likeness of an individual like Lauren Bullen that makes her a sought after travel influencer. Her name, image and likeness are not something that another person or company can simply use, without her permission, in any sort of commercial activity. Social media influencers need to proactively halt it to the extent that such misappropriation occurs. Understanding the value attached to social media influencers’ rights of publicity and how to attack those who misappropriate same is an important part of the legal services that can and should be provided to social media influencers.
- Trademarks. Social media influencers are often not just able to exploit their names, images and likenesses, but also the valuable brands that they are creating. Take Minimalist Baker as an example. Its 1.8 million followers on Instagram may not know the name of the person behind the account, but they surely know the name of the brand. In this case, the social media influencer has proactively sought to protect the trademark surrounding the brand, with a registration provided by the U.S. Patent and Trademark Office in August 2015. But far too few social media influencers are properly protecting their trademarks and preventing others from infringing or diluting actions. The World Trademark Review pointed this out in March 2019, referencing research that found far too few Instagram influencers have sought trademark protection even though fake sponsorships highlight a risk to their brands.
- Copyrights. This form of intellectual property protects original works of authorship. Social media influencers may not be creating and selling their own products or services, but they are often in the business of curating their own content to help promote third parties’ offerings. As such, social media influencers may be constantly crafting photographs, videos, literature and even music. The rights to that content belongs with the creator, and it may often lie with the social media influencer. There can be massive value attached to that content, and either individual content or collections of content often are best served being registered as copyrights. That content can then either be properly licensed or sold to their parties for their use. Additionally, by having the proper copyright registrations in place, social media influencers can threaten and/or follow through with litigation against anyone who may be improperly infringing on those important rights.
Business Creation and Compliance
It may not hit social media influencers immediately, but after a while they often think about how their brands have become, or have the real ability to be, actual businesses. A social media influencer should arm himself or herself with a lawyer who understands the difference between various corporate entities, the proper ways to format them and develop documentation that support the structures and assist with determining the best jurisdictions for business formation. I have had the opportunity to work with many clients and accountants in setting up the best corporate structures, on a case-by-case basis, for roughly ten years.
Additionally, social media influencers should be cautious in understanding the laws that govern what is technically their profession of posting content for public consumption. The Federal Trade Commission has become very active in enforcing its regulations surrounding required disclosures on various types of postings. This is an area that social media influencers want to be out in front of, assuring that they are acting in compliance with the laws, as opposed to reacting to letters that threaten punitive action in response to violations of the law. Again, this is an area that we are happy to assist with based on our knowledge of and experience in the space.
There are so Many Reasons for a Social Media Influencer to Secure Solid Legal Counsel.
The above only scratches the surface on the types of issues that social media influencers may confront as they build, grow and advance their respective brands, and the demand for their services only seems to be growing with time. It is reported that in 2019, there was a 325% increase in searches for “influencer marketing” on Google alone, and that more than 230 new platforms and influencer marketing focused agencies were created between 2018 and 2019.
With more opportunities oftentimes comes more exposure. It is important to have seasoned legal counsel on your side. It is advised that social media influencers select their legal counsel and do so with care. We are happy to be your advocate and protector if you are interested in hearing more about how we can assist you.