What are the risks of influencer whitelisting?

Creators should be aware that there exists a good amount of risk with influencer whitelisting.

The first, and often overlooked, risk a creator faces with respect to whitelisting is a lost opportunity to earn what their services are worth if whitelisting isn’t carved out as an “added” service in the agreement. Often the Odin team has seen Influencer Agreements where whitelisting is just thrown in as a matter of course with no acknowledgment that it is an additional service that deserves additional compensation (or at least a higher overall rate).

Secondly, creators should appreciate that when agreeing to whitelisting, they are handing over the reins of their social media accounts and persona – i.e. their bread and butter – to another person. Creators have to trust that brands won’t use their content or permissions in a way that harms the creator’s brand or alienates their audience (for example, by saturation or editing or repurposing content in an inauthentic way). If the content is used or re-used in a way that reflects poorly on the creator or that exceeds permissions granted, things can go south pretty quickly. 

Best case scenario, there are no problems, and the creator and the brand work together in perfect harmony. Medium case scenario the brand or agency does something that mildly conflicts with the creator’s brand or with the terms of the agreement. Worst case scenario the brand posts something terrible in the influencer’s name, hijacks the account or mishandles it in a way that allows someone else to hijack the account.

This is where having a clearly defined protocol for whitelisting in the influencer agreement, together with consequences for violations, becomes key. Strangely enough, it’s pretty common to see influencer agreements with zero language describing how the whitelisting will actually work in practice or what the specific rights and obligations of the creator and brand are with respect to whitelisting.

For whitelisting to work, both parties need to be on the same page as evidenced by very clear contract terms.

What’s a content creator to do?

We strongly urge both creators and advertisers to have clearly drafted contracts in place in these situations that accurately reflect the parties’ understandings and expectations. Here are some of the questions that these contracts should answer specifically (please note that this is not an exhaustive list): 

  • Termination: Under what circumstances can the parties terminate the deal and what are the repercussions if the relationship is terminated? How are the creator’s pay and the brand’s rights in the content affected by termination?
  • Nature of access: What accounts can be accessed and under what circumstances? Does the creator have the right to revoke access in the event of abuse?
  • Compensation: What additional remuneration will the influencer be given for granting the brand whitelisting rights? Influencer whitelisting is an added service above and beyond content creation and creators need to be fairly compensated for it.
  • Modification rights: Is the brand only allowed to boost the content that the creator makes without changing it or do they have the right to re-cut creator content in order to make new/different ads? If modifications are allowed, what approval rights does the creator have with respect to modifications? 
  • Length of the whitelisting rights: How often and how long can the brand whitelist the content? It may not make sense for the period in which brand can whitelist content to be the same as the term of the campaign or a creator’s other services under an influencer agreement.
  • Comments: How will comments be managed? Can the brand comment on behalf of the creator? If so, what approval rights does the creator have?
  • Exclusivity: What, if any, exclusivity obligations will the influencer have and for how long? Does the fee adequately compensate the creator for these obligations? Exclusivity should also be treated as an additional service, and the creator should be compensated accordingly. Whether or not an influencer agreement requires exclusivity (and most do for some period) it’s important to note that while a given brand has rights to use the influencer’s content, the influencer is probably limited in the exclusive rights that can be granted to another brand. 
  • Security: What security standard is the brand held to? Brands, should at a minimum, have a duty to use reasonable efforts to keep a creator’s accounts and account information secure.
  • Liability and Indemnification: If the brand posts content that they don’t have rights to under the creator’s name or does something else that harms the creator or a third party what are the consequences? There needs to be a well-drafted indemnification clause to protect the creator.

Michele Robichaux

Michele is an attorney at Odin Law and Media. Her transactional law experience has led her to specialize in the legal issues that affect creators of all kinds. With an extensive background as a Big Law associate, In-house counsel for US and European social media and entertainment companies, and as legal and business advisor to clients in both the US and Europe, she brings not only skill and know-how but also diverse experience and perspective to her clients. She can be reached at michele at odin law dot com.

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