Influencer Marketing Agreement

Overview

An influencer marketing agreement sets out the terms under which a brand engages a social media influencer or content creator to promote its products or services to the influencer's audience, in exchange for payment, free products, or another form of compensation. FTC disclosure requirements — the core compliance issue: the Federal Trade Commission's Endorsement Guides (16 C.F.R. Part 255, updated in 2023) require that any material connection between an influencer and a brand — payment, free products, discounts, affiliate commissions, or any other benefit — be clearly and conspicuously disclosed to the audience whenever the influencer promotes that brand. This isn't optional or a matter of platform etiquette; the FTC treats non-disclosure as a deceptive practice and has brought enforcement actions against both brands and individual influencers. Key FTC requirements this agreement should reflect: disclosures must be clear and conspicuous — not buried in a long list of hashtags, not requiring the viewer to click "more," and not contradicted by other imagery or claims in the post; a disclosure like "#ad" or "#sponsored" placed prominently at the start of a caption is generally treated as adequate, while vague terms like "#sp," "#collab," or "thanks [Brand]" alone are not; disclosures are required in video and live content too — not just static images or captions — and must be presented in a way viewers actually notice, including on platforms with disappearing content (stories) and in the video itself for video content, not solely in the description; the disclosure obligation applies to the influencer, but the FTC has also held brands responsible for ensuring their influencer partners disclose properly, including through monitoring and having a written policy — which is precisely why this agreement should require compliance as a contractual obligation, not just a hope. Other key terms: description of the campaign and specific deliverables (number of posts, platforms, formats, posting windows); compensation (flat fee, free product, commission, or a combination) and payment schedule; content approval rights (whether the brand may review and request changes before posting); usage rights — whether and how the brand may repost, boost, or otherwise reuse the influencer's content, and for how long; exclusivity (whether the influencer is restricted from promoting competing brands during or after the campaign); FTC disclosure compliance as a binding obligation, with a clause addressing what happens (right to require correction, withhold payment) if the influencer fails to disclose properly; intellectual property ownership of the content created; and termination rights. When to use it: any time a brand compensates a social media creator — in money, product, or other value — for promotional content, regardless of platform (Instagram, TikTok, YouTube, X, blogs, etc.) or the size of the influencer's following. The FTC's disclosure rules apply equally to nano-influencers and to celebrities. Common pitfalls: relying on vague disclosure language that doesn't meet the FTC's "clear and conspicuous" standard; failing to specify usage rights, leading to disputes when a brand reuses influencer content in paid ads without permission; and treating disclosure compliance as the influencer's problem alone rather than a joint contractual obligation the brand actively monitors.