SAG-AFTRA's Influencer Agreement and Waiver

In 2017, the Federal Trade Commission (FTC) issued its Guides Concerning the Use of Endorsements to encourage clear and truthful influencer advertising. Prior to the FTC compliance policies, influencers were not required to disclose to consumers whether they actually liked a particular product or simply received compensation to promote the product. However, the FTC Endorsement Standards only respond to one of the many challenges that influencer-related advertising presents for brands, advertisers and the influencers themselves. Further, social media use itself presents legal challenges for influencer advertising. For example, the use of third-party content without permission, although encouraged by the mechanics of social media platforms, is explicitly prohibited in influencer advertising. The unauthorized use of third-party intellectual property — including photos, videos and other content that includes third-party trademarks, copyright protected material and other proprietary rights — exposes influencers and brands to liability.

Consequently, brands have been encouraged to narrowly draft influencer agreements and social media campaign terms to ensure protections against reckless influencer actions.