Makeup Influencers, Sponsored Posts, & Key Legal Issues
Makeup influencers are individuals who have cultivated a significant presence on social media platforms such as Instagram, Youtube, and TikTok. They “create and share content related to makeup, skincare, haircare, and other beauty related topics”, engaging with their large followers through tutorials, product reviews, makeup looks, and beauty tips (Influencity, 2024). These influencers possess expertise in makeup application techniques, knowledge of beauty products, and a unique personal style. Often they collaborate with makeup brands, promoting products through sponsored content which “generate sales, improve brand awareness, and reach a wider audience” (Keats, 2023). Influencers like Nikki De Jager @nikkietutorials with 19.5 million followers on Instagram, Mikayla Nogueira @mikaylajmakeup (2.9 million), Sarahi Gonzalez @iluvsarahii (7 million), and Manny Gutierrez @mannymua733 (4 million) stand out as some of most prominent beauty influencers across various social media platforms.
Below are sponsored posts from Nikki De Jager and Manny Gutierrez.
Adriana Autie is currently the Senior Manager of PR and Brand Partnerships at Milk Makeup where she leads their global PR, influencer, and brand partnership strategies. In her role, Adriana is responsible for growing Milk Makeup’s brand awareness and share of voice through a multi-faceted approach including editorial and social placement, community activations, and thought leadership. Adriana is a seasoned expert on the global beauty consumer with an extensive background in public relations, influencer marketing and global marketing. Prior to joining Milk Makeup, Adriana held positions at Glow Recipe, DeVries Global, and Erno Laszlo, where she managed and executed influencer campaigns across hundreds of product launches.
Photo courtesy of Adriana Autie
Milk Makeup, a popular makeup and skincare brand, first launched in 2014 in New York City. Milk Makeup was founded by product developer Mazdack Rassi, COO Diana Ruth, creative director Georgie Greville and E! News correspondent Zanna Roberts Rassi. They are known for their 100% vegan, cruelty free, and paraben free ingredients in their products. Some of their best selling products include Hydro Grip Primer, Hydro Grip Setting Spray, Blur Stick, and Liquid Matte Foundation. Currently, Milk Makeup has over 2.6 million followers on Instagram and 984.5k followers on Tiktok.
What are Sponsorship and Sponsored Posts?
Sponsorship in the makeup influencer industry involves brands offering financial or in-kind in exchange for promoting their products in a user-generated content (Keats, 2023). Sponsorship deals are typically business contracts that outline expectations and responsibilities of both brand and the influencer. This includes compensation, content requirements, usage of rights, exclusivity agreements, and termination.
Below are examples of Sponsored posts from Mikayla Nogueira.
Adriana Autie explained the process of Sponsorship, specifically outlining the steps involved in selecting influencers for a campaign and negotiating the terms of the partnership.
Candace Marie also explained Sponsorship and what is needed in sponsored posts.
Key Legal Issues: Compensation
How do influencers get paid? Influencers primarily receive compensation through one time or flat fee payments or free products or services from brands (Fejes, 2023). Additionally, influencers may receive bonuses or rewards for reaching specific performance metrics specified in their contract, such as engagement rates, click counts, or reach goals. Compensation terms not only cover payments but also payment dates, refund policies, payment schedules, and protocols for addressing late payments (Mcclure, 2024).
Content Requirements
The process of defining content requirements for influencers involves specifying the type, quantity, and format of content expected (Grin 2024). Types of content means social media posts, Instagram Stories, tutorial videos, or live streams that the influencer will create; quantity refers to the number of content pieces the influencer is expected to produce within a specific time frame; and format refers to the specific layout, structure, or style of the content. (Snippe, 2023).
Below are examples of Sponsored posts from Sarahi Gonzalez showcasing her partnership with Mac Makeup.
Adriana told us about Content requirements for influencers.
Exclusivity
Exclusivity clauses in contracts often prohibit influencers from working with other companies or brands within a specific time period (King, 2023). These clauses could prevent influencers from promoting or using goods, services, or advertisements from a competing brand.
Candace Marie explained the importance of negotiating exclusivity in contracts.
Usage Rights
Usage rights are a part of the “legal agreement between an influencer and a brand regarding how the brand will use the influencer’s content and for how long the brand will use the content” (Collabstr, 2023). This includes content such as photos, videos, and other content across various marketing channels. In most cases, influencers maintain copyright ownership of the content, while brands are given non-exclusive rights to utilize, reproduce and distribute the content for marketing purposes during the agreed time period (Grin, 2024).
Adriana discussed the ownership of content and highlighted two main categories of usage rights: organic usage and paid usage.
Jewellianna Palencia and Brittany Perry-Russell told us about key clauses an influencer should specifically look for in a contract, namely exclusivity and usage rights clauses.
Termination
Termination clauses outline the conditions under which either party can terminate the agreement before its expiration. For example, if an influencer fails to fulfill the promised number of videos or posts, produces inadequate deliverables, violates the exclusivity clause or breaches contract rules, a termination clause will give the brand the right to terminate the agreement (Singh, 2024). On the other hand, if the brand fails to meet payment obligations or violates contract terms, a termination clause can give the influencer the right to terminate the agreement. A termination clause might also give either party the right to terminate the agreement for any reason.
References
Contracts Counsel. (2024). Sponsorship Agreement. Contracts Counsel. https://www.contractscounsel.com/t/us/sponsorship-agreement
Fejes, A. (2024, March 11). How to negotiate influencer Compensation: A guide for brands. HypeAuditor.com. https://hypeauditor.com/blog/how-to-negotiate-influencer-compensation-guide-for-brands/
Grigoriev, M. (2024, April 4). Influencer Contracts: A short guide for influencers and businesses. HypeAuditor.com. https://hypeauditor.com/blog/influencer-contracts-a-short-guide-for-influencers-and-businesses/
Influencer Content Usage Rights 101: Pricing, contracts, and more. (2023, October 11). Collabstr. https://collabstr.com/blog/content-usage-rights
Influencity. (2024, March 6). Beauty Influencers: What They Are and Top Influencers to Strengthen Your Brand. Influencity. https://influencity.com/blog/en/top-beauty-influencer-what-is-it#:~:text=A%20beauty%20influencer%20is%20a%20social%20media%20personality,and%20are%20considered%20experts%20in%20the%20beauty%20industry.
Johnson, S. (2022, May 26). Milk makeup Review - Must read this before buying. Honest Brand Reviews. https://www.honestbrandreviews.com/reviews/milk-makeup-review/
Juang, R. (2023, December 11). Influencer agreements: What you need to know. Ironclad. https://ironcladapp.com/journal/contracts/influencer-agreements-what-you-need-to-know-about-managing-influencer-marketing-contracts/
Keats, C. (2024, February 8). The ultimate brand guide to influencer collaboration. Bazaarvoice. https://www.bazaarvoice.com/blog/the-ultimate-brand-guide-to-influencer-collaboration/#h-what-does-influencer-collaboration-mean
King, C. (2024, March 11). From payment terms to exclusivity: How to negotiate influencer contracts. HypeAuditor.com. https://hypeauditor.com/blog/from-payment-terms-to-exclusivity-how-to-negotiate-influencer-contracts/
Koch, J. (2024, January 26). Influencer Contract Template: A Comprehensive guide for brands and influencers - Tomoson blog. Tomoson Blog. https://www.tomoson.com/blog/influencer-contract-template/
LegalZoom. (n.d.). Free Sponsorship Agreement template | LegalZoom. LegalZoom. https://www.legalzoom.com/templates/t/sponsorship-agreement#
McClure, B. (2022, July 20). How to pay influencers using impact.com’s automated recruiting, contracting, and payment tools. impact.com. https://impact.com/influencer/how-to-pay-influencers-with-impact-com/
Merchant, N. (2022). Influencer Law: 10 Legal Must-Knows for Influence-BrandPartnerships. GRIN.https://grin.co/blog/influencer-law-for-brands/
Singh, C. (2024, February 14). Master Social Media Influencer Contracts: A Brand’s Guide + Free Template. SocialPilot. https://www.socialpilot.co/blog/influencer-contract-template#:~:text=A%20social%20media%20influencer%20contract%20or%20an%20influencer,is%20the%20duration%20and%20scope%20of%20the%20work
Snippe, S. (2023, February 7). The ultimate influencer contract checklist every company needs — Selene the lawyer. Selene the Lawyer. https://selenethelawyer.com/blog/influencer-contract-checklist