If your nonprofit organization is considering hiring a social media influencer, you’re not alone. Nonprofits are increasingly turning to social media influencers to help promote their brand and expand their reach in attracting donors. In the 2023 M+R Benchmarks Study examining the metrics underlying nonprofit digital programs, about fifty percent of nonprofit participants reported that they worked with social media influencers. Many of them use a combination of paid and unpaid social media influencers to access their engaged followers.
Here are some key elements to include in the written agreement and other important considerations as you move forward.
Term and Termination
Any contract, including one for professional services, should define the term of the agreement. The term includes an effective date and a termination date. The duration of a contract can vary, but if you aren’t sure the relationship will be a good fit, consider a shorter initial period of three to six months. A renewal can be quickly negotiated if the partnership is successful.
Termination provisions allow either party to cancel the contract under specific circumstances. Typically, professional services contracts allow either party to terminate upon written notice of thirty or sixty days. It is also common to include a provision for termination “for cause,” in the event one party materially breaches the contract and fails to fix (or cure) the problem within a specified time frame.
The organization should consider a provision for immediate cancellation in the event its good reputation is threatened. This protection is important if the influencer’s unforeseen behavior garners bad press and reflects negatively on the charity through its association with the influencer.
Code of Conduct
Consider including a code of conduct provision requiring the influencer to agree to online conduct that won’t interfere with the charity’s ability to fulfill its charitable endeavors, harm the charity’s fundraising efforts, or jeopardize the charity’s tax-exempt status. The contract can require that the influencer refrain from featuring explicit music or language in its posts for the charity and prohibit the influencer from promoting other organizations in the same content created pursuant to its agreement with the charity.
Intellectual Property
The contract should spell out which party owns any intellectual property (“IP”) developed as part of the agreement. In addition to the usual grant of a limited license to use the organization’s logo and other trademarks, if the organization wants to secure ownership of any IP developed as part of the partnership, the contract should stipulate in clear terms that any IP created under the agreement (e.g., trademarks or copyrights) belongs to the organization. Content can include photographs, images, videos, as well as other media created within the scope of the work done for the organization. In some cases, an influencer may want any content that they develop and post on their own social media account to be their owned IP (excluding only the IP elements incorporated in the content that the charity may own). Ultimately, it’s most important to set clear expectations around IP ownership developed within the scope of the partnership to avoid future conflicts due to a lack of a meeting of the minds.
Compensation
The contract should clearly state the compensation terms, including when payments are due and which expenses (if any) will be reimbursed. It should make clear what is owed if the contract is terminated early. If the influencer posts content encouraging people to donate to the organization, this could imply their status as a professional fundraiser, triggering charitable solicitation registration and reporting requirements in several states. While there are certainly resources available to meet such requirements, the regulatory obligations it places on the influencer may discourage them from doing so, so be sure to have a clear discussion upfront if you are considering paying an influencer in connection with any fundraising efforts.
Review and Approval of Content
While organizations may want to review and pre-approve any social media posts, many influencers will resist having their content, which are often primarily disseminated from their own social media accounts, managed in this way, particularly if they are doing so on a voluntary and uncompensated basis. Your organization will need to strike a balance by being clear with its expectations upfront and thoroughly vetting the influencer’s content. One option is to pre-approve the general types of content, and provide accurate, vetted information that the influencer can use, while giving the influencer a choice of the ultimate details to be communicated. This type of provision may require negotiation to reach mutually agreeable terms.
If a strict pre-approval process is not implemented, one other way to mitigate risk is to require that the influencer take down any posts that don’t meet the approval of the organization or contradict the vetted information provided to the influencer.
FTC Rules
The Federal Trade Commission (FTC) has published regulations on principles of advertising, also called the FTC Guides, which include disclosures influencers must provide to make it clear they have received compensation (in the form of money, products, and so on) for the content they are publishing. The contract with an influencer should include the requirement to abide by the most recent FTC Guides.
Representations and Warranties
The contract should include a representation and warranty from the influencer that the content they create will not infringe upon the rights of any third parties, particularly third-party intellectual property rights. This language is essential because it provides grounds for termination for cause as a material breach of the agreement.
Templates for Efficiency
If the organization is contemplating several contracts, either with the one influencer or many, consider creating a template that can be adapted for different purposes. For the same influencer, the organization can have an umbrella contract and attach different statements of work, depending on the social media campaign the influencer is working on.
The rise of social media influencers already plays an important role for charities looking to expand their brands (charities are brands too!) and reach a wider audience to support their cause. If your organization chooses to work with influencers, formalizing the relationship through a written agreement will help reduce ambiguity, ensure alignment, and minimize risk for your organization.
