December 4, 2019 Tami Nealy

Influencer Marketing: Is Your Legal Team Ready?

This story about influencer marketing originally appeared on Medium.

Advertisers are seeing greater and greater returns when they leverage social media influencers in their marketing campaigns. According to ResearchAndMarkets.com, the Global Influencer Marketing Platform Market size is expected to reach $26.4 billion by 2025, rising at a market growth of 30.6% CAGR during the forecast period. However, this growth could be stifled if campaign management does not include legal review in content review processes.

Danica Mathes, head of the intellectual property, entertainment, advertising and new media practice areas at Bell Nunnally, shared best legal practices for brands using influencer marketing in the Dallas Business Journal in 2018. Ironically, her story about the important legal practices for brands engaging social media influencers was also sponsored content. Mathes explains that “Influencer marketing or sponsored content is probably not illegal unless it’s not clearly labeled as advertising.” She continues to share insight into disclosures, contests and giveaways, guidelines and more.

Unfortunately, not all internal legal teams are as savvy as Mathes. A September 2019 story in Vox explains the most common thing brands don’t understand about working with YouTube stars. Whether it’s a YouTube star or a food blogger, when working with influencers, brands have to let go and allow influencers control of the narrative to preserve the authenticity of what is being communicated.

So much of what makes an influencer campaign so successful is the initial campaign brief. This is used to outline exactly what you are asking of the influencer. For example, do you want your product photographed indoors or outdoors? Is the content they are creating including video or digital images?

Bringing the legal team into the conversation early with the campaign brief development can help prevent reshoots, which influencers will charge for. If you’re requesting minors be featured in the content, there are likely release forms the legal team will need signed by parents/guardians. Will influencers be incorporating music into a video? What music copyrights need to be considered?

The campaign brief/contract is legally binding, so it’s important to make sure all brand guidelines, keywords, creative expectations, outlines of campaign/content are included. Anything added after the contract has been signed that was not in the original campaign brief can not be guaranteed. Changes can result in increased influencer fees.

Defining a content review process that works for everyone (influencers included) is imperative. Many marketers may point the finger on the legal team delaying the process, however, if the legal team was included in defining the review process, it’s likely to be expedited. When legal isn’t included in the development of the process, serious delays have occurred with some companies, ultimately making the content no longer effective. If a series of posts from an influencer are “stuck” in legal awaiting approval for three-four weeks, the influencer may have colored or cut their hair, making the images being reviewed out of date. Or, if children are included in images, long delays will definitely impact the timeliness of the content as babies and children grow quickly.

When establishing a content review process, best practice is to review all content BEFORE the campaign dates, allowing blogs/videos/images/content to remain relevant within the campaign window.

When considering the content review process, define the amount of content the legal team will be reviewing to approve. If you have contracted five influencers to each post one Instagram story, one Instagram post and one Facebook post, there will be 15 different pieces of content to approve. Establishing how and when content is coming in for review can set realistic expectations up front.

In May 2019, Find Your Influence shared 3 rules for reviewing influencer content as a guide for advertisers to better understand that no one knows an influencer’s followers better than the influencer. The rules are just as effective for legal teams to review to gain a broader understanding of influencers and how they create content.

Every advertiser is different. Every legal team is different. With the marked growth of influencer marketing on the horizon, creating strong relationships and efficient processes, it’s never too early to engage the legal team in your influencer strategy.

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