Influencer Agreement Checklist For US Small Businesses

Influencer marketing can be a cost-effective way for US startups and small businesses to reach new customers. However, working with influencers is not as simple as sending free products or agreeing to a few social media posts. Without a clear and legally sound influencer agreement, your business could face regulatory penalties, intellectual property disputes, or payment issues. This checklist will help you understand what to include in your influencer contracts, how to comply with federal and state rules, and avoid common mistakes.

What Is An Influencer Agreement?

An influencer agreement is a written contract between your business and an influencer who promotes your products or services. The agreement sets out the expectations, deliverables, payment terms, and legal obligations for both parties. Even if you are working with a micro-influencer or a local creator, a written agreement is essential to protect your business and ensure everyone is on the same page.

Influencer agreements typically cover:

• The type and number of posts or content pieces
• Platforms where content will be shared (Instagram, TikTok, YouTube, etc.)
• Payment or compensation details
• Disclosure and compliance requirements
• Intellectual property ownership
• Exclusivity and non-compete terms
• Termination and dispute resolution

For more information on how these contracts work, see our Influencer Agreement service.

Why Do US Businesses Need An Influencer Agreement?

Influencer marketing is regulated by both federal and state laws. The Federal Trade Commission (FTC) requires that all sponsored content and endorsements be clearly disclosed to consumers. If your influencer fails to disclose a paid relationship, your business could be held responsible for deceptive advertising, even if you did not intend to break the rules.

Common risks of not having an influencer agreement include:

• FTC Enforcement: The FTC can fine both brands and influencers for failing to disclose sponsored content. See the FTC's Disclosures 101 for Social Media Influencers.
• State Law Violations: States like California and New York have additional advertising and consumer protection laws. For example, California's Unfair Competition Law and New York's General Business Law both prohibit misleading advertising, which can include undisclosed influencer relationships.
• Intellectual Property Disputes: Without a clear agreement, you may not own or have the right to use the influencer's content in your own marketing.
• Payment Disputes: If payment terms are not clearly set out, misunderstandings can lead to non-payment or overpayment claims.
• Reputational Harm: Poorly managed influencer relationships can damage your brand's reputation if the influencer posts inappropriate content or fails to meet expectations.

For more on digital marketing compliance, see our Digital Marketing & Advertising page.

Influencer Agreement Checklist: Essential Clauses And Practical Examples

Here is a detailed influencer agreement checklist for US small businesses, with practical examples and common mistakes to avoid:

1. Parties: Clearly identify your business and the influencer by legal names, addresses, and contact information.
   Example: If you are contracting with an influencer's LLC, make sure the agreement is with the LLC, not just the individual.
2. Scope of Work: Describe exactly what the influencer will do. Specify the number of posts, stories, videos, or other deliverables, and the platforms they will use.
   Example: "The influencer will create 3 Instagram posts and 2 TikTok videos featuring [Product] between July 1 and July 31, 2024."
3. Content Guidelines: Provide clear brand guidelines, messaging requirements, and any restrictions (such as no profanity, no competitor mentions, or required hashtags).
   Common mistake: Not specifying content requirements, leading to off-brand or non-compliant posts.
4. Disclosure Requirements: Require compliance with FTC rules. The agreement should state that the influencer must use clear disclosures like #ad or #sponsored at the beginning of posts.
   Example: "Influencer will include #ad at the start of each sponsored post, in accordance with FTC guidelines."
5. Approval Process: Decide if your business must approve content before it goes live. Set timeframes for review to avoid delays.
   Example: "Client will review and approve all content within 48 hours of submission."
6. Payment Terms: Outline payment structure (flat fee, per post, commission, or free products), payment schedule, and any expense reimbursements.
   Example: "Influencer will receive $500 per post, payable within 14 days of publication."
7. Intellectual Property: Clarify who owns the content. State whether your business has a license to use the influencer's content in ads, on your website, or in other marketing.
   Common mistake: Assuming you own the content without a written assignment or license.
8. Exclusivity: State whether the influencer can work with your competitors during or after the campaign.
   Example: "Influencer will not promote competing skincare brands for 60 days after the campaign ends."
9. Term and Termination: Specify the length of the agreement and how either party can terminate it. Include what happens to scheduled or in-progress content if the agreement ends early.
   Example: "Either party may terminate this agreement with 14 days' written notice."
10. Confidentiality: Protect sensitive business information, such as upcoming product launches or marketing strategies, shared with the influencer.
11. Compliance with Laws: Require the influencer to comply with all applicable federal, state, and local laws, including FTC and state advertising rules.
12. Indemnification: Set out who is responsible if there is a legal claim related to the influencer's content or actions.
    Example: "Influencer agrees to indemnify the business for any claims arising from their breach of FTC disclosure requirements."
13. Dispute Resolution: Include how disputes will be handled (mediation, arbitration, or litigation) and which state's law will apply.
    Tip: If your business is based in Texas but the influencer is in California, specify which state's law governs the contract.

For a custom contract tailored to your needs, see our Influencer Agreement service.

FTC Disclosure Rules For Influencer Marketing

The FTC's endorsement guidelines apply to all US businesses and influencers, regardless of size. If you provide payment, free products, discounts, or any other value in exchange for promotion, this is considered a "material connection" and must be disclosed to consumers.

• Clear and Conspicuous: Disclosures must be easy to see and understand. For example, #ad or #sponsored should appear at the start of a post, not hidden in a long list of hashtags or at the bottom of a caption.
• Platform-Specific: For video content (YouTube, TikTok), disclosures should be spoken and appear on screen. For Instagram Stories, use text overlays that are visible for enough time to be read.
• No Ambiguous Language: Phrases like "Partner" or "Thanks to [Brand]" are not enough. The relationship must be obvious.
• Applies To All Forms of Compensation: Even if the influencer only receives free products, they must disclose the relationship.
• Both Parties Are Responsible: The FTC can pursue enforcement against both the business and the influencer for non-compliance.

Example: A small business sends a free skincare product to an influencer who posts about it without using #ad or disclosing the gift. Both the business and the influencer could face FTC action for deceptive advertising.

For more, see the FTC's Disclosures 101 and Endorsement Guides.

State Laws, Sweepstakes, And Industry Rules

While the FTC sets the federal baseline, many states have their own advertising and consumer protection laws that can affect influencer campaigns. Some states also have specific rules for sweepstakes, contests, and industry-specific promotions.

• State Advertising Laws: States like California (Unfair Competition Law) and New York (General Business Law) have additional requirements for truthful advertising and disclosures. Penalties for violations can include fines and injunctions.
• Sweepstakes and Contests: If your influencer campaign includes a giveaway, you may need to comply with state sweepstakes laws. For example, New York and Florida require registration and bonding for certain prize promotions. Always include official rules and clear disclosures in your agreement and campaign materials.
• Industry Codes: Some industries have extra advertising rules. For example, alcohol brands must comply with federal and state alcohol advertising laws, and health-related products may be subject to FDA or state health regulations. Your influencer agreement should require compliance with any relevant industry codes.

Example: A California business runs a sweepstakes with an influencer. California law requires clear official rules and prohibits certain types of entry methods. Failing to comply could lead to state enforcement or consumer lawsuits.

Always check if your campaign triggers additional state or industry rules. For complex promotions or multi-state campaigns, consult a qualified attorney.

Common Mistakes In Influencer Agreements

Even well-intentioned businesses can make mistakes when working with influencers. Here are some of the most common errors and how to avoid them:

• No Written Agreement: Relying on emails or verbal agreements can lead to misunderstandings and legal disputes. Always use a written contract.
• Unclear Deliverables: Not specifying the type, number, or timing of posts can result in missed deadlines or incomplete campaigns.
• Ignoring State Laws: Assuming that FTC compliance is enough can be risky. State laws may add extra requirements, especially for sweepstakes or industry-specific promotions.
• Weak Disclosure Language: Not requiring clear FTC disclosures puts your business at risk. Spell out exactly what disclosures are needed.
• Assuming Content Ownership: Unless your agreement includes an assignment or license, you may not have the right to use influencer content in your own marketing.
• Forgetting Termination Terms: Not including clear termination rights can make it difficult to end a partnership if things go wrong.

Review your influencer agreement carefully and update it for each campaign or new legal development.

Best Practices For Working With Influencers

Successful influencer partnerships are built on clear communication, mutual respect, and legal compliance. Here are some best practices for US small businesses:

• Vet Influencers Thoroughly: Check the influencer's audience demographics, engagement rates, and past brand partnerships. Look for alignment with your brand values and target market.
• Set Clear Expectations: Provide a detailed brief, discuss campaign goals, and agree on deliverables and timelines before signing the contract.
• Monitor Content: Regularly review influencer posts for compliance with your agreement and FTC rules. Address any issues quickly and document your oversight efforts.
• Maintain Good Relationships: Treat influencers as partners. Timely payment and open communication help build long-term trust and positive brand associations.
• Document Everything: Keep written records of agreements, approvals, payments, and communications. This helps resolve disputes and demonstrates compliance if issues arise.
• Update Agreements As Needed: Laws and platform rules change frequently. Review and update your influencer agreements regularly to reflect new requirements.

For more on contract essentials, see our Contracts page.

FAQs

Do I need an influencer agreement for every campaign?

Yes. It is best practice to have a written influencer agreement for each campaign or partnership, even if you have worked with the influencer before. Each campaign may have different deliverables, payment terms, or legal requirements. A new agreement helps avoid misunderstandings and ensures both parties are clear on their obligations.

What happens if an influencer does not disclose a paid partnership?

If an influencer fails to disclose a material connection, both the influencer and your business could face FTC enforcement or state penalties. Your agreement should require compliance with FTC guidelines and allow you to take action if disclosures are not made properly. Monitoring influencer content and providing clear instructions can help reduce this risk.

Can I use influencer content in my own marketing?

You can only use influencer content in your marketing materials if your agreement gives you the right to do so. This is usually done through an intellectual property or license clause. Without this, you may not have the legal right to repost or use the content beyond the original campaign.

Are there special rules for giveaways or sweepstakes with influencers?

Yes. Giveaways and sweepstakes are subject to both federal and state laws. Some states require registration, official rules, and specific disclosures. Your agreement should address compliance with all applicable laws and clarify the influencer's role in promoting the giveaway. For complex promotions, consult a qualified attorney.

What if my influencer is located in a different state?

When working with influencers in different states, you should specify which state's law will govern the contract and where disputes will be resolved. Be aware that the influencer may be subject to their own state's advertising laws, which could affect your campaign. Consider consulting a qualified attorney for multi-state partnerships.

Key Takeaways

• Influencer agreements are essential for managing legal risks and setting clear expectations in influencer partnerships.
• US businesses must comply with FTC endorsement guidelines and may face additional state or industry rules.
• Key clauses include scope of work, disclosure requirements, payment terms, intellectual property, and termination rights.
• Written agreements and good communication help prevent disputes and regulatory issues.
• Regularly review and update your agreements to reflect changes in laws and platform policies.

If you need help drafting or reviewing an influencer agreement, contact our team at (888) 449-8437 or team@sprintlaw.com. Where legal services are required, they are delivered by licensed lawyers at trusted law firm partners through the Sprintlaw platform.