Spring 2023 - 72

LEGAL CORNER
BEING INFLUENCED
Tips to protect yourself when collaborating
with influencers on social media
BY ANGIE AVARD TURNER, J.D., LL.M.
Contributing Writer
I
t is not uncommon when scrolling on social
media to run across dozens of influencers and
their posts regarding products and services that
we all need or want. So, what exactly is an influencer
and how long have they been around? An influencer
is one who can persuade their audience to purchase a
product or service by conveying their opinions of said
products on social media. This type of marketing began
in the 2010s, and it has risen steadily as people across
the globe have continued to rely on their smart devices
for consuming information quickly.
As businesses have begun seeing the rise in revenues
from a well-executed influencer campaign, the demand
for influencers' services is increasing. Retailers and
wholesale brands alike are using influencers to share
their businesses and gain new customers. Here are some
things to know to guide your influencer collaboration.
1. PROTECT YOUR INITIAL CONVERSATIONS
When a business owner agrees to have a conversation
with an influencer, the first thing that each party should
want and agree to is a Non-Disclosure Agreement. The
NDA, as they are called, protects the conversation
before the actual terms are solidified. This agreement
allows both parties to talk freely about confidential
information that they would not want the general public
or customers to know. Furthermore, it protects each
party from the other party taking that conversation
and exploiting it to the exclusion of the other party.
In short, it sets the parameters for communication,
protects ideas discussed and defines the developing
business relationship.
2. UNDERSTAND HOW MONEY IS MADE
There are a few different ways that influencers may
make money. First, an influencer may ask for in-kind
services. The company gives them the product or the
service for free; in return, the influencer will promote
the product or service. Second, the influencer may
charge a set fee in exchange for a specific number
of post/stories/reels/videos. These fees may range a
72 SPRING 2023 GIFT SHOP® PLUS
4. COLLABORATION AGREEMENT
All of the above mentioned items are typically covered
in a collaboration agreement of some sort. Not operating
with a collaboration agreement is simply asking for
trouble! The collaboration agreement is separate and
different from a Non-Disclosure Agreement. The NDA
protects the conversation leading up to the decision to
couple hundred dollars to five figures. This completely
depends on what the influencer is agreeing to do, how
well known the influencer is, meaning how large is
their following, and how well known the company is.
Third, an influencer could have an affiliate code that
links directly to the product or service; each time a
customer purchases using that code, the influencer
makes a percentage of the price the customer paid.
3. INTELLECTUAL PROPERTY
This is an area that each party should have a
working knowledge of. Intellectual property is the
broad category that covers created content, products,
services, brands, logos, slogans and inventions. Under
this large creative umbrella are issues of copyright,
trademark, patent and trade secrets. Both sides should
have a clear understanding of who owns what before,
during and after the collaboration. Furthermore, each
party should make sure that they are using images that
belong to one another. Using images of a third party
without
that party's permission could result
in an
infringement claim. Likewise, each party should make
sure that they are using the appropriate branding with
regard to logos, taglines and slogans, or the name of
the company. Using wording that does not belong to
either party but is protected by trademark by a third
party may also result in an infringement claim. It is
also important to ensure that each party protects its
respective created content. If the influencer retains
the rights to the content they create, that needs to
be spelled out. If the company owns the rights to the
products or services created, then that, too, needs to
be detailed.
Spring 2023

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