“Aside from trying to ensure an influencer complies with the law, what else should go into a contract?”

Ten top tips for an influencer marketing contract by Tamimi and Co’s Fiona Robertson

T he rise of the influencer as a marketing tool has been much discussed in the Middle East. From Kuwaiti beauty bloggers who attract several million followers to Saudi comedians with strong and loyal fan bases, more and more legitimate brands are using the voices and names of media influencers to assist with the promotion of their brand.

In all of this, as with all activities where third parties are associated with a brand, it is imperative that influencers are closely monitored to ensure that they are complying with the brand guidelines and the law. The most practical way to ensure this level of compliance is to create a contract between the brand and the influencer. But, aside from trying to ensure that they comply with the laws, what else should go into this contract?

1. Proper identification of the influencer

Under UAE law, a business should only be operated by way of a trade licence. An influencer acting in their personal name may not be acting legally. If it is in their personal name, it may be that they have a freelance visa or a licence from the Department of Economic Development. It is also possible that the influencer is operating a side business with consent of their employer and, if this is the case, they should provide a no objection certificate to that effect. Some agencies are now entering into contracts on behalf of influencers.

In all of these cases, it is important to ask for the paperwork that establishes the arrangement, be it a licence or contractual. Then ensure that the full and correct detail of the contracting party must be used in the contract itself and all subsequent paperwork (purchase orders and invoices, for example).

2. Scoping of services

Before the rise of influencer marketing, when brands initiated product placement deals and sponsorship, it was necessary to scope out the type of services and deliverables that would be provided by the brand ambassador. This may include a certain number of attendances at events or perhaps an agreement to meet members of the public. There may be television commercials and public appearances. No matter what was agreed, they were always scoped carefully in order to ensure that the brand received the exposure it anticipated. With social media, it can be much harder to properly define the services that an influencer is expected to provide and, because of this, it is easy to fall into the trap of not scoping them well, or not scoping

“MORE SOPHISTICATED INFLUENCERS HAVE ACCESS TO VOLUMES OF DATA ABOUT THEIR ENGAGEMENT WITH CONSUMERS – MORE DETAILED THAN A SIMPLE LOG OF ‘VIEWS’ AND ‘LIKES’.”

“WITH SOCIAL MEDIA, IT CAN BE MUCH HARDER TO PROPERLY DEFINE THE SERVICES THAT AN INFLUENCER IS EXPECTED TO PROVIDE AND, BECAUSE OF THIS, IT IS EASY TO FALL INTO THE TRAP OF NOT SCOPING THEM WELL, OR NOT SCOPING THEM AT ALL.”

them at all. However, this is vital. We have seen deal memos where the deliverable is “tweets”, without any reference to numbers across the term or to frequency. This becomes extremely difficult to manage, as the expectations of both parties may well be very different. Three a week may be the brand expectations, with the influencer intending to deliver only two a month. One savvy influencer agreed to produce 20 posts, which were delivered as only five individual posts, each one posted identically and simultaneously on four different social media platforms.

Many influencers work across multiple social media platforms and each platform has its own particular style of messaging – thus it is important to ensure that Instagram, for example, is clearly noted with reference to the way in which the brand must be shown on a product in the image (such as a t-shirt or hat) or referenced in the words. Do all Instagram images have to contain the brand logo or can this be limited to, say, one image per week and one further mention per week? The more clarity that is provided within the services, the more readily the influencer can comply with the terms.

For brands, dates are often incredibly important. Product launches or major marketing campaigns will often need that extra push that an influencer can provide. If this is the case, dates needs to be included in the contract with clear deliverables around the relevant activities. If you need the influencer to attend an event or do an interview for a magazine, ensure that it is clear that this will be arranged for them and that they must attend.

3. Ownership of the influencer’s output

It is difficult to analyse a tweet or an Instagram post in the light of the complexities of copyright law. Whilst we can assume such rights do exist, they may not be protectable in all instances.

However, even if that is the case, the usage that can be made by both parties of the content created for your brand should be clear and unambiguous. It is likely that a brand will want to reuse Instagram images in its own Instagram pages or possibly share them via its website or Twitter feeds. This should be clear in the contract. It should also be clear that the influencers themselves cannot use brand-associated images for any other purpose. Using them outside of the campaign would not be acceptable except with the brand’s prior written consent.

But what about timelines? How long do you want the content to be kept up in the social media feed? Does it need to be taken down at any point or can it remain there but with the proviso that it is not to be reposted at any point without permission? Brands tend to target particular messaging within campaigns for a particular period of time. Old campaigns may not be compatible with the new messaging yet may resurface six or 12 months later. If this may be problematic, then ensure the contract includes a takedown date. Either way, the brand should always have the right to request a takedown of any content for any reason. These rights should continue beyond the term of the contract.

4. Approval rights

Influencers are often followed by numerous consumers because of the nature of their “voice”. This may mean they have a particular sense of humour or a unique way of expressing themselves. Because of this, many are very particular about maintaining that voice and tone for their audience, safe in the knowledge that this is the very reason that their followers are with them in the first place. It can therefore be difficult for brands to require approval rights over posts. And, further, it would be unusual for an influencer to agree that a brand could write a post for them or on their behalf. It would also be unusual for them to agree that you can change a post before it is sent.

However, it is not unreasonable to request a review of a post before it is made public, particularly where the marketing message is important to other aspects of the current brand messaging. Compromises can always be reached, so if you cannot agree that approval is appropriate perhaps it can be agreed that the brand has a veto right over content that fails to meet the brand messaging expectation.

In this matter, some compromises may have to be made by both parties. But there can be no doubt that for significant launch campaigns or rebranding campaigns, where a lot of money is at stake, this will not be as flexible from the brand’s perspective as the influencer may usually like. It is important that all parties recognise that both of their interests lie in maintaining an honest voice from the influencer in the public forum. This voice is, after all, what they are being paid for.

5. Data

More sophisticated influencers have access to volumes of data about their engagement with consumers – more detailed than a simple log of ‘views’ and ‘likes’. If this is available, it is in the interest of the brand to seek access to that data by requiring it under the contract.