The Legal Side of Influencer Marketing And Mistakes To Avoid


Table Of Contents


The Price of Influence

There's a lot more involved than just choosing that perfect influencer and figuring out what they're going to do for you. In fact, not just consumers- but even brands and influencers would be surprised to learn about the ways and methods that your brand can be legally protected when working with a social influencer.

Recently our CEO, Stacy Jones sat down with Sharon Tourek of Tourek Law to discuss this topic for our Marketing Mistakes podcast. In this blog post, Hollywood Branded examines the legal side of influencer marketing and the mistakes Sharon Tourek's legal advice can protect your brand from accidentally making.

101_ Podcast Thumbnails

A Little Background On Sharon Tourek

Sharon is an intellectual property and marketing law attorney based in Cleveland, Ohio, and her specialty is helping creative professionals protect, enforce, and monetize their creative assets. She has particular concentrations of clients in advertising, marketing, and creative service industries, and counsels them on legal issues including copyright and content protection, licensing of creative content, trademark and brand protection matters, marketing agency service contract issues, freelance for contract issues, social media issues, advertising compliance, and direct marketing regulations.

You can learn more about Sharon and gain access to legal tools and advice at her blog Legal + Creative. 

New call-to-action

Highlight Q&As From Marketing Mistakes Podcast

Podcast transcript from Stacy’s interview with Sharon:

Stacy: Can you discuss why it's important for a brand or an agency to have a contract with an influencer?

Sharon: There are campaigns of different types and sizes, right. In some cases, I'm sure your clients are pairing up with celebrity influencers, and a much riskier area in terms of compliance and cost, down to working with really micro-influencers… Agencies should understand that you need to take a step back and look at what is the goal we're trying to accomplish and what is the risk we're actually assuming based on the way we're planning to set the campaign up?

Stacy: Do you think there is a dollar range that you need to start thinking more seriously about having a locked in contract?

Sharon: It depends upon how you're planning to compensate the influencer. My rule of thumb rather than looking at an amount specifically is if you're exchanging cash with an influencer, even if it's a non-celebrity influencer, it's very important that you reduce those relationships into contractual agreements. If you are working with an influencer who maybe has a smaller following, and your relationship consists more of brand ambassadorship, where you're sending them products to review or sample, or you're inviting them to special events, or maybe you're sending them an unboxing opportunity, things like that, it's practical to document those relationships…


Stacy: When we talk about contracts, who's contract should actually be used? Should it be the brand's or agency's, or should it be the influencer's, if they even have one?

Sharon: I am a fierce advocate for agencies because that's who I tend to, that's where I spend my time representing clients. But I would say that this is an area where really the brand and the agency are typically, their interests are completely aligned because a mistake made by an influencer is going to hurt the brand and it's going to hurt the agency in a couple of ways as far as the agency is concerned. It's going to potentially damage the business relationship between the agency and the brand, because if it's an error the agency's made in a lack of compliance or training or whatever are selecting the influencer, the brand's going to be looking at them as responsible for that.

But ultimately, if an influencer makes a mistake, it's going to reflect on the brand as well. In a typical contract situation between an agency and their brand client, you've got people on both sides of the table, and their interests may not be completely aligned until the contract's signed…

Stacy: So if the influencer has their own contract, I would say that we have a contract that we refer to that we use as a best guidelines so that we can go back and forth and check to make sure that the things that we know are important to our client are actually in the influencer's contract too.

Sharon: Absolutely. That's absolutely best practice. I tell every agency that doesn't have its own set of legal tools for these types of relationships that even if you are ultimately going to sign the influencer's version of an agreement, you need a benchmark as you just pointed out. You need something that's going to serve as your own checklist or punch list of deal points. And the best resource for that is having your own standard agreement…

A lot of times these influencers just don't know they're doing something that they shouldn't be doing or that they're forgetting to do something that they need to be doing… You might have a travel blogger that gets free accommodations and doesn't even think to disclose that they were there at the invitation of a resort brand. And I've even seen celebrities do it. For some reason, there's something about travel tourism, I guess maybe everybody's brains check out because they're on vacation.


Stacy: And then any other takeaways that you can tell our listeners today about what they need to keep in mind for influencer marketing in general?

Sharon: Ultimately I would just leave them with the reminder that influencer marketing ultimately is treated by regulators and the law just like plain old false advertising is. The basics, the same principles that apply to an ad that we would have seen 15 years ago in a magazine or in a banner on a website apply to influencer marketing. It's just that there are all these additional opportunities out there to create impressions that can be confusing to consumers. So if you keep that in mind and you look at everything you're doing and putting out there through that lens, then I think the rest of these requirements and compliance issues that you need to deal with become easier to understand. So I think I would just leave it on that note, that it's ultimately about making sure you're putting content out there that consumers are not going to be confused by and that helps your brands get good business results in the process.

To learn more about the legal side of influencer marketing, you can listen to the full interview in our podcast.

The Next Step In Your Influencer Learning

Want to learn more about how to work with influencers to promote your brand? Check out some other blog posts we've written on influencer marketing...

Want access to even more insights from industry pros and their experience in brand marketing? Subscribe to our Marketing Mistakes podcast and listen to every episode!

New Call-to-action