Best Practices in Dealing with Influencers

March 16, 2018

Robert Driscoll, partner at Davis Wright Tremaine LLP, and Thomas Adams, associate director and associate general counsel at Procter & Gamble, discussed best practices in engaging and managing influencers, approaches to intellectual property, brand reputation, claim substantiation issues, and strategies for addressing disclosure requirements.

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As influencer marketing campaigns become more common, brands are facing challenges in adapting their traditional talent contracting and management structures to more fluid and untraditional influencer agreements while also encountering new legal issues. Robert Driscoll, partner at Davis Wright Tremaine LLP, and Thomas Adams, associate director and associate general counsel at Procter & Gamble, broke down the barriers and growing concerns and how to address them.

Many influencer and talent deals are becoming shorter-term and less expensive, ranging from product placements to entertaining video campaigns. At Procter & Gamble specifically, many of the products are mundane, everyday things, so when it comes to marketing, it’s about giving the consumer the product at exactly the right time.

In the case of Tide PODS, there was a challenge on social media recently where people dared each other to actually eat the pods (which is not safe to do). The company provided safety information to parents, colleges, and consumers. It used an influencer to make a short funny video about not eating Tide PODS. While it seems like common sense, it became a helpful way to educate consumers in a way that caught their attention. In this case, the influencer who performed in the video was featured in the short clip, meaning the contract would have extended only to the one video campaign.

As Driscoll and Adams explained, influencer culture has gone beyond the “Kim Kardashian celebrity model.” Now content creators on social media, entertainers and public figures, thought leaders, and social natives are often picked for marketing campaigns. For a promotion for Old Spice, for instance, Procter & Gamble hired different influencers who weren’t necessarily famous, like a parkour runner, to spotlight the product. The video advertisement explained how any consumer could participate in the Old Spice Dream Runner experience just by running or walking in the shape of the prize they wanted (like a mug) using the app created for the challenge. The video then featured the parkour runner drawing the shape of a shoe. Consumers could become part of the experience while also relating to the person in the video in a more real, authentic way as opposed to seeing a celebrity they couldn’t relate to selling a product.

Here are the key components when putting together influencer deals:

  1. Follow FTC guidelines at a minimum, especially for social media campaigns and social sharing. When it comes to the FTC endorsement guides, it’s important for companies to keep in mind that the FTC has the authority to seek enforcement when they see deceptive marketing practices. Endorsements reflect what people might actually believe and mimic this behavior. While the guides are not law, brands often try to adhere to them, especially as the endorsement must reflect the honest opinion of the endorser. The claims must not be ones the advertiser couldn’t make, and the material connection between the endorser and advertiser must be disclosed for ethical purposes. Since the advertiser and the endorser are liable for false statements, it’s a shared responsibility.

    Disclosing material connections has become murky in the digital age. For example, using the hashtag #sponsoredad would be sufficient for most partnerships, whereas #partner is not on social media. Being upfront and candid with the audience is not only ethical, but allows the consumer to trust the partnership. Influencers with agents tend to already understand how to work with companies and lawyers, understanding shared liability and contractual obligations.

    Companies are moving toward using influencers to engage with trends, as they have already created their networks and niches that could broaden a company’s reach. Understanding how to ethically promote a video or social media campaign is imperative.
  2. Understand who the influencer really is and what s/he stands for to protect the company’s brand before moving forward with a contract. Knowing the influencer’s general aesthetic and online presence is necessary when working closely with a brand’s product and being a representative of the company. Traditional influencers may be professional and have agents negotiate contracts and expectations for them, but many others operate without agents. Contracts have become contextual depending on the person and how the influencer operates: a contract for an Instagram channel will be treated differently than an individual. Adams suggested writing contracts with strict language to avoid any confusion or wiggle room with legality. For individuals, there is typically a short-form contract for clarity.

    Since contracts commonly vary from product placements, social media campaigns, and video campaigns, more of them need to be hybrids to protect creative and sharing rights and set a budget. IP ownership, for example, could be a point of contention in contracts, especially for usage for both parties. If an influencer wants to share a video campaign months after it was aired, it is necessary to have a clause in the contract explaining what is and isn’t possible. Repurposing and sharing content is essential to plan in the contract when getting restrictions to protect companies.

    Doing due diligence and researching the past six months of an influencer’s behavior should be a standard practice as a way to protect the brand and set expectation. Influencers don’t necessarily always want to appear as though they’re plugging a brand, which can complicate FTC guidelines, so researching and choosing an individual whose beliefs align with the company’s mission is a safer way to comply with ethics.

    A Pampers commercial called “The Wet Test” recently featured the YouTube mom duo What’s Up Moms telling a story all moms can relate to while grabbing the consumer’s attention. The commercial was effective as an influencer partnership because the product was endorsed subtly through a narrative while also stating up front that it was a sponsored ad. This allowed the duo to visit different homes across the U.S. where they poured water onto sleeping moms to see if they would wake up, finding nine out of 10 moms did. The video then explained how Pampers diapers hold enough liquid to last the night, meaning that moms can get a full night’s sleep (almost), appealing to new parents who want to get a little shut-eye.
  3. Provide training sessions and written guidelines for both clients and influencers. If all parties understand expectations and have a guideline for how the process should move forward, there is less room for dissatisfaction and possible legal issues. Setting up compensation and a payment schedule helps to incentivize the influencer and clearly reflect expectations and logistics.

CLE Materials

Source

"Best Practices in Dealing with Influencers." Robert Driscoll, Partner at Davis Wright Tremaine LLP; Thomas Adams, Associate Director and Associate General Counsel at Procter & Gamble Co. ANA Advertising Law and Public Policy Conference, 3/16/18.

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