As a lawyer specializing in influencer marketing and social media, and an influencer myself, I have definitely come across red flags in influencer marketing contracts. Here are 5 red flags you should look out for when reading your influencer marketing contracts!
1. “Non-negotiable contracts” 🚩
Contracts are supposed to be a mutual agreement. Generally, a mutual agreement is when both parties to the contract receive benefits and obligations that they both feel comfortable in accepting. Thus, if the terms are non-negotiable, then getting to a mutual agreement is impossible. Remember, you will always have your best interest in mind. You are your best advocate when it comes to negotiating contracts. Plus, at the end of the day, you are signing a legally binding document and you want to make sure that you have the ability to add any protections you need into that document.
2. “Don’t worry about that term in the contract, it’s just our standard contract” 🚩
So, you don’t want me to worry about a legally binding document that I don’t understand and probably has me sign over all rights to my content.?! Every time a brand says this to a creator, or even to me as a creator, I cringe! If you ask a brand for help on a contract and they say this, please reach out to a lawyer or contract consultant for help. Please don’t just skip over terms you don’t understand because unfortunately, that 1 confusing term may be the 1 that has the most weight within the contract. Speaking of terms…
3. “Perpetuity” 🚩
Perpetuity means forever. This term is usually found under the licensing and usage rights clause within influencer marketing contracts. Essentially, brands are requesting to have the right to use your content, likeness, copyright, etc. forever. I’m sure you can see how this is extremely hard to price. The reason brands want your content forever is so that if they decide to use it years down the line for additional advertising and marketing, they don’t have to come back to you and ask for your rate and permission to use. But if you don’t agree then they do have to ask for your rate and permission to use after the contract is over. Thus, not agreeing to perpetual use will allow you to potentially make more money and keep your rights reserved to you. I’ll add, there are some circumstances that may require agreeing to perpetual use. However, for many influencer marketing contracts, specifically brand partnership agreements with deliverables to post on the creator’s platform, perpetuity is not needed.
4. “Inconsistent terms and obligations throughout the contract” 🚩
Make sure the terms and obligations of your contract are consistent throughout the entire contract! For example, if page 2 says that the deliverables are due within 14 days of receiving the product then every other page, including exhibits, need to reflect the same information. Another example would be if page 4 says payment will be provided 30 days after receiving the invoice, but page 7 says their standard payment timeline is 60 days after receiving the invoice, you need to get clarity on the actual payment timeline. Reels Contracts are put in place to help bring clarity, guidance, and protection, not confusion. Therefore, it’s important to thoroughly read and understand your contracts so that if needed, you can accurately revise the contract.
5. “Vague and ambiguous exclusivity clauses that include ‘but not limited to’” 🚩
Exclusivity is another way of saying non-compete. Often brands have competitor companies and products that they don’t want creators to promote during the timeline for the campaign they are partnering on. This makes sense and isn’t a bad thing so long as the brand understands exclusivity is an additional fee, but I digress. This issue is when the contract isn’t clear as to who are those competitor companies and which specific products. The catch all phrase of “but not limited to” is a danger zone for many creators because later a brand could say well this new company is now a competitor so you must remain exclusive. This is a no for me. I suggest requesting the contract to list the competitors and products by name, so it is clear as to who and what you need to be exclusive from.
Disclaimer: This is for informative and educational purposes only, thus, this is not legal advice. Although I’m an attorney, I’m not your attorney.