How To Negotiate Brand Contracts for Bloggers + Influencers
How to navigate through blogger + influencer contracts can be a bit overwhelming at first.
Even though it may seem like a lot, please don’t just skim and sign any brand contracts – you could be signing your life away or even missing out on thousands of dollars. It’s so important to know exactly what the agreement states. I understand negotiating your photography and likeness rights as a blogger/influencer is a bit tricky these days. There is no real guidance out there for bloggers nor are there many social media influencer contracts on the internet to help you draft the right agreement. I’m going to break down influencer contracts for you the best I can to help you get what you deserve and not get taken advantage of in the legal world of blogging.
Companies and brands these days will try to take you to the cleaners if you don’t read your influencer contracts and negotiate your terms. Trust me, the first time you see yourself in an ad campaign, on a billboard, or plastered all over a website without being compensated you’ll start reading your influencer contracts. The more you know, the better you are and the better our industry is as a whole. Most of the time I’ve been successful in negotiating my terms. If the brand is unwilling to negotiate terms, you can negotiate deliverables or compensation.
I don’t have a manager…yet…so I’m doing all of this myself. I have over 15 years of business experience with a focus on marketing, sales, and advertising, so I’m familiar with brand contracts and big brands quarterly budgets – they would shock you! I also have a legal team I run things by for advice if need, but most of this you can do yourself. I’ll be sharing their information and that arrangement in another post coming soon!
So let’s dig in! I’ll be reviewing the following:
(click on the below headings to skip ahead)
- Terms to know
- Examples from Influencer Contracts
- Content Usage Rights
- Hashtag Content Usage Rights
- Approval, Drafts, and Revisions on Influencer Contracts
DISCLAIMER: I am not a lawyer, and this guide to influencer contracts should not be interpreted as legal advice.
If you want to skip the do it yourself approach grab a contract template from the lawfirm I recommend here!
Blogger + Influencer Contracts 101
Terms to Know before reading any blogger + influencer contracts
- Perpetuity – eternity, everlasting, foreverness, infinity
- Likeness / Right of Publicity – an individual’s right to control and profit from the commercial use of his/her name, likeness, and persona, referred to as the “individual’s identity”
- Influencer Content – means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content created or provided by Influencer
- IPR – means all intellectual property and proprietary rights throughout the world, including, without limitation, all copyrights, trademarks, trade secrets, patents, moral rights, and other rights protecting data, information or intangible property throughout the world.
- Scope(s) of Work / SOW – the statement of work you’ll be required to complete. project-specific activities, deliverables, and timelines for an influencer providing services to the client
- Work for hire – all deliverables shall constitute a “work made for hire” made solely for the benefit of the Advertiser. Meaning, the employer is considered the author/owner of the copyright even if an influencer actually created the work. The employer can be a firm, an organization, or an individual. In my opinion, I would run from this.
- Copyright – a law that gives the owner of a work (like a book, movie, picture, song or website) the right to say how other people can use it. If you create your own content then you hold the copyright. If you hire a photographer or videographer for your campaign, they are the copyright owner (absent work for hire agreement or copyright assignment).
- Exclusivity – influencer works exclusively with the brand and cannot work with any competitors of the brand for a set period of time.
- License – a contract in which the photographer/influencer grants specific rights to the client who wants to use the image for a specific amount of time, also known as usage rights. The original owner retains the copyright of the image. The contract stipulates the terms on how, when, and where the licensee can use that photograph.
- Commercial Rights – enable the buyer to use your images for commercial purposes in communications designed to sell their own products or services such as a catalog, brochure or on some other form of advertisement.
- Non-Commercial Rights – things like personal websites, blogs, school newsletters and other media where your image will not be used specifically as a part of a for-profit/money-making activity.
- Exclusive Rights / Serial Rights – when you grant exclusive permission to use a specific image to a client. You may or may not want to do this since “exclusive” means you will not be able to resell that image at a later time.
- First Rights – permission to use the image first off and then you are free to resell your image at a later time. This typically applies to publications, newspapers, and magazines.
- Non-Exclusive Rights – mean that you can sell your images to more than one person or entity. Make sure that you include a clause wherein your client cannot further resell your images.
- One Time Use – the right to use your image one time only, for one specific purpose to a client.
- Unlimited Use – exactly what it sounds like. It’s a very broad grant of rights that permits the client to use the photo(s) across all media types and parameters (e.g., territory, duration, etc.).
- Ownership – the brand wants to be able to use and own your content in future marketing efforts. That may include everything from a banner ad on the web to a billboard in Times Square. And yes, the brand can even resell or license your content for money to another party, and keep the proceeds.
- Usage – where the brand can use influencer content and the length of that use.
- Dates – The influencer is assigned to make certain posts on certain days. Once the work is done and the influencer has been paid, the brand revokes any right to use their trademarks. Seems pretty simple, except an influencer may want a portfolio or sell sheet of examples to show new and prospective clients. Any additional or ongoing uses of the brand trademark should be included in your contract.
Examples from Influencer Contracts
Brands have exclusive rights to use your work as they see fit – if you sign a contract saying they do! As a brand, the goal will always be to get full rights over any content that is produced under any influencer-brand contracts. But you don’t have to give everything away. Specify where and when your content may be used, and for how long. If the brand wants more, they have to pay for it.
It’s best to have your own contract ready to go, but if they send you a contract with terms you don’t like, simply edit it. Strikethrough what you don’t agree with and send it back. They’ll have to make the revisions and send you an edited contract to sign or negotiate. Don’t sign anything until (1) you read it and (2) you agree to all terms and conditions.
I strike through usage rights I don’t agree with as well as client approval on content that gives them revisions, reshoots, and creative control without additional compensation. I will literally add in or amend compensation details like late payment fees, 50% payment upfront terms, termination fees, turnaround times, etc. For things listed in the contract that I consider extra services aka time-consuming annoyances, I will strike through or ask for additional compensation (like analytic wrap-up reports, link in bio, screenshots, access to my FB business dashboard for them to boost posts, etc.). Just make sure to set expectations and don’t be afraid to ask for what you want.
The below examples are the terms and conditions that I’ve noticed in a lot of my brand contracts regarding content rights and likeness as well as termination and creative control. These T&C are what’s most important to me but it could be different for everyone.
Let’s review some examples of common influencer contracts:
Example 1: Content Usage Rights
The terms you see in example 1 and 2 give the brand (including all subsidiaries – basically anyone they want) permission to use your content (including your likeness) how they see fit, with no further compensation…FOREVER! Technically they would own your photo, meaning you could no longer sell it or use it without their permission. Not only would they own it, but they could edit it however they see fit.
No one should own the rights to your content/photos in perpetuity (forever), except you. According to my photography friends and my research, a normal license agreement is 6 months. The most being 3-5 years max!
Remember, if a photographer has taken your content photos for you, you do not own them so you’re unable to grant the brand any rights. That would have to be negotiated between you and the photographer first before you can even discuss it with the brand or sign a contract. That’s what the brand means in their contracts when they say “third-party licenses”. Keep in mind, most photographers do not give up the copyrights to their photos.
- Influencer hereby grants to Client a perpetual, non-exclusive, sub-licensable, irrevocable, worldwide, royalty-free, fully-paid right and license (the “License”) to use, exhibit, display, reproduce, publish, amplify through paid-media and distribute any and all content created by Influencer (“Influencer Content”) further to the program. Influencer shall obtain any and all required third-party licenses, releases, waivers and permissions necessary for Influencer to provide the Influencer Content and the License to Client. Agency and Client shall have the right to use Influencer’s name, likeness, photograph and biography in connection with its use of the Influencer Content. Influencer agrees to provide a testimonial affidavit and other such documentation as reasonably requested by Company in connection with its use of Influencer Content.
How to Respond:
When a brand sends over contract terms like in example #1, let them know you’re going to review it and will get back to them shortly. I always confirm receipt and say I’ll look it over for review and come back if I have any revisions.
Once you review the contract, email your contact and say the ownership/rights section needed to be amended, please see your revisions (attached) but that you are happy to negotiate the terms, deliverables, or compensation.
Make sure to attach your revised contract. To do that, open the contract up and use the strikethrough button to redline anything in the influencer contracts that you do not agree with. Example 1 was the actual language in a contract I received and I literally stuck through that entire paragraph. I added a comment and replaced it with my terms so they could update on their end.
It will look like this:
The client actually came back and asked how much it would be to keep the terms in so I sent a rate of $50,000 because forever is a long time, homie. I also sent back a 3-year usage rights price for two different uses, (more on pricing coming soon)! They ended up not wanting to increase the compensation and settled with my terms.
Responding With Revised Terms:
option a.) The images that are being provided to you are licensed to you for any reasonable personal purposes, including but not limited to: printing, copying, emailing, and web publishing with credit for a period of 1 year. Your license does not include use that results in financial gain, including but not limited to: advertising, stock photography, print sale profits, or resale of any nature. The client has permission to use images for any non-commercial purposes with credit to influencer free of charge for a period of 1 year. Your purchase of the original files releases VGB from any liability due to loss or damage of the images and also releases VGB from any obligation to maintain copies of any digital file, image, or photograph. Verbal Gold may revoke this license at any time and for any reason. VGB retains all copyrights to the images and derivative works thereof.
Except with regard to any Advertiser Works incorporated therein, Influencer shall own, exclusively and in perpetuity, any and all intellectual property rights, including trademarks, trade secrets, design, work, copyrights, and other rights of whatever kind and character, throughout the universe and in any and all languages, in and to the Content.
By using any of these images, you are agreeing to the above terms.
Here are other options with different terms and conditions that give the brand the right to use your content:
option b.) Influencer hereby grants to the Advertiser a worldwide, non-exclusive, royalty-free right and license, during the applicable posting periods and subject to any other limitations set forth in the applicable SOW, to (A) feature any and all Content generated by Influencer (including Influencer’s name and likeness) on all Social Media Channel accounts and websites owned, controlled or licensed by the Advertiser, with credit to influencer and (B) repost any and all Content generated by Influencer (including Influencer’s name and likeness) in one or more sponsored posts distributed through Social Media Channels or other media channels mutually agreed to by the parties and set forth in the applicable SOW. Advertiser agrees to use Influencer social media handles specified in the applicable SOW (e.g. @[Influencer] or #[Influencer] in connection with the use of applicable Content, or otherwise credit Influencer in the event Advertiser re-posts any Content.
One thing I would make sure to add in the above statements are a set time frame.
option c.) Company has the right to use the Work on Company’s owned social channels during the Usage Term provided Company tags and gives credit to Talent in each instance in the applicable social channel and such usage is in a non-paid capacity only (i.e., solely promotional and no boosting, whitelisting, etc.), unless otherwise specified.
Example 2: Hashtag Usage Rights
2. You hereby grant “Company” and their related companies (including all subsidiaries, affiliates and parents), and all of their respective agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, and their respective retail partners and any other third parties engaged by any of the foregoing, including but not limited to marketing or public relations agencies, and the employees, officers and directors of all of the foregoing (hereinafter collectively, the “Licensed Parties”) the worldwide, perpetual, irrevocable, royalty-free, fully-paid, non-exclusive, transferable, sublicensable right to use your User Content in any manner to be determined in the Licensed Parties’ sole discretion, including but not limited to on webpages and social media pages operated by the Licensed Parties, in promotional e-mails and advertisements, and in any and all other marketing, promotional and advertising initiatives, and in any media now or hereafter known. The Licensed Parties may use, display, reproduce, distribute, transmit, create derivative works from, combine with other materials, alter and/or edit your User Content in any manner in their sole discretion, with no obligation to you whatsoever. You grant the Licensed Parties the right to use your username, real name, image, likeness, descriptions of you, location or other identifying information, including but not limited to your voice, in connection with any use of your User Content.
How to Respond:
I know it’s cool to have your photos and your work shared, but at what cost? Especially if they’re being used without any credit given or compensation. If a brand comments on a photo on your Instagram, I would respond with, “Thanks so much for the kind words! Glad you love my photo! Please feel free to share on social with tag and credit. If you’d like to share in further communications please email (email address) to discuss.”
Responding With Revised Terms:
Except for references to the Talent’s name as expressly authorized herein, Company agrees not to use or refer to Talent’s name, voice, likeness, biographical data, trademarks, logos and/or business names (collectively, the “Talent IP”) without Talent’s prior written approval on a case-by-case basis. Any approval given hereunder shall apply only to the particular Talent IP, and for the specific purpose, for which the approval was expressly given. Company agrees not to use the Talent IP to imply or attribute, directly or indirectly, any endorsement or testimonial to Talent. Company’s use of the Talent IP shall inure exclusively to the benefit of Talent, and Company shall not acquire any rights therein.
Each party shall retain all right, title and interest to its own intellectual property, including, without limitation, trademark, copyright, and any and all renewals, extensions, revivals, and resuscitations thereof, throughout the universe in perpetuity in all media now known or hereafter devised.
Company hereby agrees that Talent Social Media Content and Talent IP (collectively, the “Work”) shall be owned by Talent. Talent hereby agrees to license to Company, pursuant to the terms of this Agreement, the right to display such Work during the Usage Term.
Example 3: Approval, Drafts, and Revisions on Influencer Contracts
If you’re not careful here, you could end up in a round of revisions that seem to be never-ending. In my opinion, if a brand hires you, they’ve obviously vetted you, your brand, your work, and your entire vibe already so they need to trust that you’re capable of doing the job. Sending emails back and forth with revisions is time-consuming, irritating, and a waste of time, energy, and money. If a brand is adamant on having revisions or creative control, I ask that they send over a brief for review and then take away the preapproval – as seen below.
The only time the revision nightmare happened to me is when my contact left mid-campaign and her replacement wanted a total reshoot. After one revision, they came back asking for more, so I declined and stated there was no creative control in the contract or creative brief provided. Reviewing these terms and conditions are equally important. Plus, the longer your content goes unapproved, the longer it takes you to get paid and the longer you have to wait to work with any competitors in the same category.
Here are some common terms regarding approvals, drafts, and revisions found on influencer contracts:
Talent agrees to provide Company with drafts of Talent Social Media Content content for review and edits in real time at the Event.
Talent may be required to reshoot or edit the content to comply.
All posts shall be approved by Company prior to posting.
Influencer shall share all engagement and number of views for each post and story.
How to Respond:
Simply strike through anything you don’t agree with here. I’d strike through all of it and then when you send your revisions back, negotiate higher compensation to include these agreements. Keep in mind brands don’t have the right to demand access to personal account information and usage statistics after the campaign, so make sure these expectations are set up front and you’ve added in time and compensation for providing them if you choose, especially if you want to work with them again.
Let me tell you, it’s super awkward to tell a brand no or ask for additional compensation after the campaign is over. I had the VP of a big well-known network ask me to provide them as a “favor” and then tried to guilt me into it and then “fear of loss” me saying it’d be hard to work with the brand again if I didn’t provide the stats. It was super uncomfortable.
Ultimately, it wasn’t outlined in the brand contract or discussed ahead of time, so I didn’t have to provide anything, but they started sending so many emails begging me to share. Moral of the story is to make sure this is all done upfront to avoid the awkward back and forth.
Responding With Revised Terms:
Here are some wording options you can include if you choose or if the client is giving push back regarding an approval process. You can include all or none.
Approvals and Approvals Process:
- Company agrees to provide Talent with a brief prior to Talent shoot date.
- Such brief is subject to one (1) round of mutually approved edits; at such time the parties agree on the final brief there shall be no further to changes to the brief
- Talent shall be responsible for complying with the final brief provided it is mutually agreed upon in advance of Talent shooting and/or content creation
- In the event Company fails to provide Talent with a brief, Talent may refrain from reshooting or editing any content
- If Talent follows the guidelines in the final brief, Company may not request any reshoots
- Company is limited to one (1) round of edits to the copy only
- Company shall respond to Talent’s drafted content with approval or feedback for disapproval within 24 hours
- Posts shall be approved by Company prior to posting, however, in the event Company does not respond with approval or feedback for disapproval within 24 hours, Talent shall be paid in full and will post at another time mutually determined by Talent and Company.
Example 4: Termination
4. This Agreement will become effective upon execution and will continue in full force and effect until the satisfactory completion of all services. Company may terminate this Agreement at any time upon written notice to Influencer. In the event of termination for Influencer’s material, uncured breach of its obligations hereunder, Company shall be entitled to a refund of all amounts paid to Influencer.
How to Respond:
I’m not comfortable with the word satisfactory in the above terms because it’s vague and leans in favor of the company. Personally, I would strikethrough that word. I’d also strike through the refund portion and add a payment stipulation for time spent on the project.
Responding With Revised Terms:
Either party may terminate this Agreement upon written notice to the other party solely in the case of any uncured material breach by such other party, including without limitation any failure to make payment when due, that remains uncured ten (10) days after written notice from the other party specifying such breach in reasonable detail. In the event of a termination by Talent for Company’s uncured material breach or by Company for convenience, Company shall immediately remit the Compensation, in whole or the outstanding remainder, and shall immediately cease use of the Work.
Example 5: Compensation
Just make sure you agree with the terms here and pay close attention to the date. For new clients, I add a 50% upfront payment. Although not always accepted, it’s worth a try. These are the compensation terms I’m comfortable with.
Company agrees to pay to Talent $___ USD for all services rendered under this Agreement (“Compensation”) payable within thirty (30) days after receipt of invoice from influencer, but no later than ( ____ date – mm/dd/yy). In the event that any payment remains past due for a period of five (5) days after written notice to Company, (i) interest shall accrue on such past due amount from its due date until payment of such past due amount and all interest thereon is made in full, at an interest rate of 2% per month past due or the maximum interest rate allowable by law and (ii) Talent may, at its option, suspend service, retain all work product until payment has been made, and seek payment of the unpaid payment and any interest and collection costs thereon.
Payment shall be remitted Fifty Percent (50%) upon execution of this Agreement and Fifty Percent (50%) within Seven (7) Days of performance on the final specified date.
This post was a labor of love for the blogging community in hopes to help educate more people on blogger + influencer contracts so we can all get on the same page in regards to working with brands. I’m not a lawyer nor do I have any legal background, no matter how many episodes of Law & Order I watch, so please use a real lawyer to seek legal advice from.
Let me know if you love this post by pinning it! What do you want to see next? I have a lot more posts like this lined up since y’all loved my last blogging/business post What Is A Rec List And Why You Should Have One As A Blogger!
Coming Soon: How To Charge For Rights and Likeness When Negotiating With Brands!
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