How To Protect Your Brand When Working With Fitness Influencers

Aligning with influencers can be highly lucrative for fitness brands, but there are important legal and business considerations to keep in mind. An intellectual property lawyer breaks down what you need to know

Social media influencers are powerful allies for fitness and wellness brands seeking to connect with consumers in authentic, targeted and engaging ways. From micro-influencers with a niche following to celebrities with millions of fans, influencer marketing can offer an excellent return on investment. 

However, influencer marketing implicates an array of legal and business issues that must be carefully managed to avoid regulatory pitfalls, protect brand reputation and ensure commercial success.

Disclosures & FTC Compliance

A core legal issue is compliance with advertising and disclosure regulations, particularly those enforced by the U.S. Federal Trade Commission (FTC), which mandates that influencers clearly disclose their relationships with brands when promoting a brand’s products or services.

When posting on social media, influencers must use clear language such as “#ad,” “#sponsored,” or “Paid partnership with (Brand)”.

Merely tagging the brand or burying disclosures in a sea of hashtags is insufficient (additional rules apply for blogs, videos and live streams). 

Brands can be held liable for non-compliance with FTC disclosure requirements, so it is important that the written engagement agreement clearly requires that the influencer’s posts properly disclose the relationship. Additionally, it is incumbent on the brand to monitor all posts for compliance. 

The Brand-Influencer Agreement

A solid brand-influencer contract is crucial to protect both parties. These agreements should outline the scope of work, content requirements, posting obligations and deadlines, compensation, usage rights and termination of the relationship.

Key provisions in a contract should include:

• Content Approval: Brands commonly maintain the right to approve posts before publication, where feasible.  A structure for brand review should be clearly outlined, for example – “Influencer will transmit each proposed post to (email address) for approval or disapproval of posting and publication. If brand doesn’t respond within 24 hours of receipt, it is assumed that the post is approved, and Influencer may publish.”

• Exclusivity: Typically, brands will seek to prevent an engaged influencer from promoting a competitor’s product or service during the term of the relationship and for a reasonable period thereafter. In addition to the length of this exclusivity period, the breadth of that exclusivity is also a heavily negotiated provision.  Brands will want to define the area of exclusion as broadly as possible (e.g., no other gym or fitness facility in the states of California, Nevada, and/or Arizona), whereas the influencer will seek to define the excluded area(s) as narrowly as possible, leaving room for other opportunities, (e.g., no other in-person Pilates provider in California).

• Obligations & Payment: The contract should clearly state the platforms on which the influencer’s post, blog or video will appear, the number of posts expected per week or month, and any obligations of the influencer outside of the digital world, such as an appearance at a trade show. The contract should also state when, how and how much the influencer will be paid. It is not uncommon to agree upon a stated fee, half of which is paid upon execution of the contract and half upon the successful completion of the campaign. It is also common to include a performance-based compensation model tied to KPIs (clicks, conversions, etc.). Often, a brand will provide the influencer a discount code that they can offer to their followers for products or memberships, enabling tracking of those sales back to the influencer and providing them with a portion of the revenue generated from such sales.  

• Morality Clause: Historically, this provision allows the brand to sever ties if the influencer engages in behavior that could harm the brand’s reputation. However, given the ripe history of brand and corporate misbehavior, this provision is now often reciprocal, allowing the influencer to sever ties if the brand, its corporate owner and/or its C-suite executives engage in illegal or disgraceful activities. Other than the fee and exclusivity provisions, this is often the most hotly negotiated clause in an influencer agreement. Of course, the inclusion of a strong morality clause does not negate conducting a thorough background check before a contract is presented.    

• Intellectual Property Rights in Posts: The agreement should clearly define who owns the content posted (e.g., images, videos, captions) and the respective parties’ right to use that content in other areas. In general, brands should avoid seeking full ownership of the influencer’s output and, rather, secure a broad license granting use of that content online and in other marketing channels. To the extent that the brand’s trademarks, branding elements and/or copyrights are included within a post, it should be clear how such materials can be used and confirm that the brand retains all rights in its intellectual property.  

Third-Party Intellectual Property Issues

It is common for influencers to incorporate third-party content (e.g., music, memes, artwork) into their posts; however, the use of third-party material in promotion of the brand may give rise to claims of infringement. Some brands simply prohibit the use of any third-party material in influencer postings. 

Alternatively, the contract may allow for inclusion of third-party material, so long as the influencer has a license to use that material in marketing communications, which license will be presented to the brand with each post submitted for approval.  

Balancing Authenticity vs. Control

There is a delicate balance between giving influencers creative freedom and maintaining control over brand messaging. Influencer marketing is built on trust and authenticity. Overly controlling content can lead to stale or inauthentic posts that audiences ignore, or worse, cause ill will toward the brand. On the other hand, a lack of guidance can result in misaligned messaging.  Brands should provide brand guidelines, not scripts, that include clear do’s and don’ts.  

Audience Mismatch

Partnering with an influencer who has the wrong target audience or low engagement can result in a wasted spend. Worse, some influencers buy followers or fake engagement, skewing metrics and undermining campaign effectiveness. Due diligence on these issues in advance of a contract presentation is crucial and always a best practice to follow. 

Key Takeaways

Influencer marketing can be highly effective and rewarding, but it comes with equally high risks if not managed correctly. 

Brands must navigate a maze of legal, ethical and operational considerations to protect themselves while maximizing marketing impact. The best protection against getting trapped into a bad deal is to engage experienced legal counsel who understands how to navigate through the thicket of contractual obligations and conditions, and ultimately negotiate terms that align with the brand’s overall best interests. 

Owen Seitel is the co-founder of Crown® LLP and an attorney with over 30 years of experience in intellectual property and business law. He counsels creatives and those who engage in their services on protecting, leveraging and monetizing their work. Reach him at [email protected]