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Under the Influence: Influencer Marketing Gone Awry
It’s Friday and ya know what, we aren’t getting down but we are looking forward to the weekend — specifically, the Friday night doom scrolling session that typically follows hitting *send* on that last email of the day. If you’re an avid doom scroller too, we imagine you’ve seen the recent wave of influencer marketing posts for literally everything and anything. No, you don’t need a travel hoodie that holds your passport in the sleeves, and yes, Big Brother is watching and listening.
Back in the YouTube era, folks would say things like “not sponsed” when they promoted certain products. But what do the rules look like now, when our economy is driven in large part by brand deals? Turns out, the influencer legal landscape is quite extensive. So before you send a swag box to your favorite influencer in hopes of going viral, guess what comes first?
You guessed it: a written agreement! And what should that agreement say, you ask? Apparently, more than you think. Allow us to “de-influence” you from going full steam ahead and sliding into someone’s DM’s without having proper protections in place.
Setting Expectations
The overall goal of any agreement is, in a nutshell, to set expectations. Yes, you’ll have indemnity and related liability protections, but when it comes to influencer marketing, being clear on expectations is critical. How many Instagram posts are they expected to post? How often? How long should the “Reel” be? What products are being showcased? Should the influencer post across multiple platforms?
These are all questions that should be answered up front and, of course, in writing. Two additional critical questions include: who owns the content, and what are the parameters for your company’s ability to use the influencer’s name, image, and likeness? Once the posts are up for the prescribed period of time, what happens then? Can you take that content and showcase it on your own platforms indefinitely? If you haven’t thought it through, be sure to do so before signing on the dotted line.
Of course, influencers are humans (for now at least). Humans are flawed and make mistakes. What if said influencer is the subject of the latest scandal and resulting Netflix documentary? Will the agreement be terminated for cause? Will payments cease? Will you require that the content be taken down? If your head is spinning with all of these questions, sorry not sorry.
Story Time!
When a TikTok starts with “story time” you probably think “I’m sat — spill the tea, sis.” Fair reaction, but what if your company is the subject of said “story time”? Influencers who once promoted a brand can, have, and will, bash it publicly (to their audience of 2 million viewers), sometimes months or years after the contract ends. Without a clear non-disparagement provision, companies often have little recourse, even when the statements are misleading, wrong, exaggerated, or strategically harmful.
The risk is not limited to false statements by the way. Influencers can cause serious damage through “truthful but selective” storytelling that paints a company in a negative light, invites online pile-ons, or triggers customer distrust. Unlike traditional employees, influencers operate on platforms designed to reward outrage and engagement. A single viral post can undo years of brand building, and once it spreads, legal remedies are slow, expensive, and often ineffective without a robust non-disparagement provision that survives termination and applies across all social media platforms.
FTC Won’t Let Me Be
Influencer marketing lives at the intersection of advertising and personal expression, but the law treats it as commercial speech subject to necessary disclosures. This is why your agreement should have explicit terms requiring that the influencer’s posts comply with Federal Trade Commission (FTC) regulations and corresponding guidelines. Many influencers, particularly those who often go viral but are ultimately inexperienced with sponsored content (or don’t have a legal team behind them) treat FTC disclosures as optional. From a legal standpoint, that is a dangerous assumption for businesses who sponsor this content. If “sponsored”, “advertisement”, “paid partnership” or “receives commissions” disclosures are unclear, buried, or missing altogether, the company paying for the endorsement is the one exposed to regulatory action and reputational harm.
Overall, your influencer contract should require FTC-compliant disclosures, give you approval rights over sponsored content before publishing, and allow you to demand corrections or takedowns if a post is non-compliant. Without clear contractual guardrails like these, you may be left absorbing the consequences of an influencer’s creative choices (even choices you do not control but are still legally accountable for).
We hope your product goes as viral as 6-7, and as always, if you’ve got questions, you know we’ve got answers!
~ The W + K Team
ABOUT WEINSTEIN + KLEIN P.C.
Founded in 2019, Weinstein + Klein is a modern boutique law firm that serves as outside general counsel to businesses across industries. Weinstein + Klein provides strategic, day-to-day legal support with a focus on labor and employment law, corporate and transactional matters, and business litigation. Weinstein + Klein works closely with business owners, executives, and entrepreneurs to proactively manage risk, navigate complex employment issues, and handle key transactions – from formation to funding to exit.