Protecting Your Brand When Working With Influencers – Jamie Leiberman

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“Being proactive can only benefit your business."



  • How can small businesses actually use influencer marketing to grow their brands? [5:25]
  • How are important contracts for influencers? [13:44]
  • What to do if there are no any results? [16:21]
  • Learn a little bit of legal jargon what we need to do to comply with current regulations. [23:29]
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Salena: Hey there and welcome to this week's episode of the bringing business to retail podcast, we have all seen the stories of product brands that have been featured by people like Kim Kardashian and we wish that that could be us, we wish that we could just get a celebrity to take our product and flash it all over Instagram, but the fact, is that is not the beginning or the ending and there's a lot of technical stuff as well as legal stuff that we need to put in place before we use influencer marketing. So, I have influencer marketing expert Jaime Lieberman on the show to share her tips and tricks and strategies to make sure that this avenue works for you welcome to the show Jamie.

Jamie: Thanks for having me.

Salena: Influencer marketing like five years ago, this was not a phrase it just wasn't you celebrity endorsement was the sort of words that people use, but it's always seemed out of reach to your average small business. So, tell us a little bit about one how you ended up in this space, but I'd also like to know about how small businesses can actually use influencer marketing to grow their brands.

Jamie: So, I've been in the blogging space as we like to say, I'm almost a relic for a very long time. I've been blogging since the early 2000, long before anyone even had thought the name influencer or had been paid a penny for their blog and as I blogged it was more personal and as you know time went on and more and more people started blogging. I started looking around and realizing ha there's something here and so, it is certainly evolved over I'd say the last five years or so into what it is now today and it's constantly changing. I've worked for influencer networks which are networks that will bring influencers that may have similar subject matters together and connect them with brands. I've worked at influencer conferences where they bring brands and influencers together to talk solely about the business of influencer marketing. The biggest thing I see is it's not just for the big brands, there are some unbelievable relationships I see from some of the smaller bloggers and some of those smaller brands and frequently what I see is when it's a really good natural fit. So, if you're a business owner and you want to do some outreach to some influencers my number one piece of advice is to get to know them look at their sites look at what they're doing see that it's an organic fit and it makes sense. The biggest complaint that I hear from influencers is when they're approached by a brand not necessarily that may not have a very large budget but the brand just wouldn't fit it doesn't make sense. So, if you know your space and you know who your customer is as a business owner then you'll also know what they're reading and what they're interested in and if you make that connection and make that very personal connection, I've seen influencers that are willing to work with brands who may not have the largest of budget because they know these influencers that the readers will love the product and so, that's a really great way is working with a small number that you've really spent some time getting to know.

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Salena: And I don't just have to be big you don't have to go off to Kim Kardashian right at the beginning, do you?

Jamie: I actually think you do better with some of the more niche bloggers, I always recommend to brands when they're sort of making their entry into influencer marketing is not to focus on the numbers focus on engagement, see how well the audience the influencers audience takes the influencers advice see how engaged they are on that influencers community you can see, the fact is now you can buy followers, it is a sad practice.

Salena: Sad reality.

Jamie: Yeah, it's terrible and it's frustrating for those influencers who's been working for so long and have really authentic audiences and so, look at not just their numbers but look at their engagement. I think that is the most important thing because you're gonna get a way higher return on investment with a blogger who may have a few thousand followers, but those few thousand followers by every single thing that that blogger recommends.

Salena: And not only that working with someone who only has a few thousand followers has to be a lot cheaper.

Jamie: It can be, it depends to be honest some of them who do have very sort of small subjects they can command a little bit more for example, hyper local influencers there's a very popular hyper local influencer where I live and where I live by its very nature there's going to be a cap on the number of parents where I live and that is this influencer targets, but every single thing this influencer says people go do and so, their rates are a little bit higher, but I also know because they're my client that they are willing to work with brands for less if they strongly believe in what the brands doing or they think it would be a great fit for the audience.

Jamie: How do you recommend that a brand approaches any influencer email or a phone call, I would typically try to schedule a call rather than just a direct cold call, but I think just sending an email that's very personal that shows that you've read the influencers website or you've looked at their Instagram and not only saying what you've read, but why you're interested why you think they'd be a good fit. I think influencers are a lot more interested and excited to work with a brand who knows what they're doing because realize that they are getting pitched all the time and people are always asking them for free things and they're always asking for exposure as it's called. So, knowing something personal and really making the connection between your product and their audience goes such a long way.

Salena: Do you think that it is worthwhile say you've found an influencer that you want to work with and you've reached out and they send back and their  pricing or their information or however they want to work with you, do you think it's worthwhile to go and find other brands that have work with them and see what the outcome is it or was.

Jamie: Absolutely, I think that  a lot of the bloggers that I work with now have case studies and I think brands should absolutely ask for those case studies how previous sponsored campaigns have run what the results were they should have all of that information at their fingertips and I think it is absolutely something brands should be asking for and something influencers should have on hand.

Salena: That is a really good tip because I have to say I've contacted a few influences when I had my stores and I don't think anybody ever sent me back case study. So, if you're an influencer listening to this perhaps that's something you need to be putting together in order to sway your customers a little bit more.

Jamie: Absolutely, it is so compelling and we I recommend it all the time to clients and when I go to influencer marketing conferences, it is one of the ways that influencers stand out when you see a great case study and they're not that hard to put together all the data is there, it's just a matter of making it look pretty and canvas is a very easy way to do that.

Salena: That's such a good tip and it's actually one of those things I've just stuck in my back pocket for the next time one of my clients reaches out to an influencer make sure you ask for case studies.

Jamie: Absolutely, they're really helpful.

Salena: So, once you've approached your preferred person and they've written back and they've said yeah, I think we might be a good fit here are my rights what is the next step well it depends if you want to try to negotiate you certainly can you know everything's negotiable for some reason I think a lot of people in this industry haven't don't understand that or haven't gotten to that point, but I always say that to both my influencers and my brand clients that you can absolutely negotiate nothing set in stone the worst thing that the other party will say is no and then you can go back to the original offer, but once you've come to an understanding the number one most important thing I can recommend is to get it in writing make sure you have a contract not just an email.

Salena: The thought of a contract has probably scared everybody because I'm thinking from the brand's point of view you were so excited that you're now able to work with this person and maybe you've done a little bit of negotiation I know one of my clients negotiated with an influencer to provide an affiliate code. So, they had an ongoing revenue stream after the initial post went up, but you're so worried about losing them or offending them all this whole thing falling through like the fear just kicks in that asking for a contract seems like you might just be pushing the boundaries. So, what's your advice for that.

Jamie: My piece of advice when I hear this a lot and I always say it's a big red flag to me, if the other party doesn't want to sign a contract, it's a business transaction money or product is changing hands and everybody needs to be protected and so, if someone pushes back if I represent an influencer, if I represent a brand if the other party pushes back that's a huge red flag and you may not want that relationship because all the horror stories you hear typically come when there are no contracts and so, I understand that fear, but it's a business relationship and business relationships are governed by contracts or should be and so, for me that's just a demonstration of the professionalism and where the influencer marketing industry is going and I think that  shouldn't even blink an eye.

Salena: I did expensive to get a contract drawn up and whose responsibility is it.

Jamie: It really depends um, I actually have a company that is specific to influencer marketing and we offer template contracts for influencers or brands that are starting out and I also do that custom work through my law firm as well it typically what we do is we put together a template so that it can be used multiple times. There definitely requires some customization depending on what the arrangement is going to be, but you can absolutely use a template and make sure at least you have the specifics of each deal put in writing and some good clauses in there to protect everybody. If something gets more complicated especially for the larger deals because I do work on a lot of large deals for some of my clients those require a lot more back and forth, but for you know a standard blog post, it doesn't have to be all that complicated it just needs to make sure there are certain things set in writing. It can be either party I know a lot of influencers who have their own contract because they do work with a lot of brands that are new to influencer marketing and so, it can't hurt to ask if you're a brand that's new to this and you've never done it before it's okay to be a little bit vulnerable in that way I think the influencer appreciates the honesty and to just say hey you know this is our first time working with an influencer do you have a contract we can use and if not there are definitely attorneys who specialize in this area maybe one of them and they could do that for you fairly easily, it's not that complicated.

Salena: Okay you mentioned it just before, but let's just dig into this a little bit deeper we have all heard the story of the brand just a small independent business who has sent product to perhaps even a small influencer or someone who's never done this before and they said the product of several hundred dollars in exchange for a couple of Instagram posts something like that and nothing happens. They don't get the product back, they don't get their exposure, what is a person to do you just kind of write it off and go well that was a really poor business decision or should you take it a little bit further.

Jamie:It depends on the value you know you have to weigh the pros and cons of how much it costs and how much it's going to cost in order to try to recoup your investment per say, if it's a few hundred dollars and that's what it would cost to say file a claim in small claims court then it may you just may have to write that off as one of those bad agreements you entered into, but if it's a very valuable product it may be worth your while to two cents to either send a letter from an attorney because you'd be surprised at how quickly people respond to letters from Pittsburgh knees or if necessary to have to go to a small claims court, but the beauty of having an agreement is you can have contingencies in place for something that like that that may happen that actually makes it cheaper on the back end in order to be able to recoup your losses.

Salena: Oh give me some examples about that.

Jamie: Well if you have an agreement that says that if any kind of lawsuit comes out of this or you have to go after you know say you're a brand and you have to you know try to recoup lost product or lost funds you can shift fees to the other side saying you will have to pay all my attorney's fees so that on the other side once you prevail you'll get that as well and that it can be really I can stop somebody from wanting to violate that agreement and also like I said you can have provisions in place where you don't pay the full amount upfront. So, you may send some product, but you are also promising a payment and you don't pay the payment until everything is complete so that's another way not sending everything upfront.

Salena: That is really good advice and I know that a lot of people have probably just slapped themselves on the forehead and gone oh why did I send them the money and the product did I do that because it all comes back to that fear doesn't it that fear of I don't want this you know to fall through, I want to be associated with that brand and the contract the idea of having a contract like you were saying this doesn't have to be an expensive task it doesn't have to be time-consuming you offer templates where people can just download this and I assume just edit them to suit their needs, but it all comes back to running a business you are not a charity and as much as it seems like a great idea to hand out product in exchange for exposure, if you're not guaranteed of what the other person is giving you then it is a really silly mistake to not put this down on paper.

Jamie: I could not agree with you more, I say it all the time. There's so much fear around contracts and it's new to me because my background before I had hash tag legal my law firm was I worked at a huge thousand person law firm in Manhattan and I worked with very large sophisticated clients on very large cases and that was just never a question and so now moving into a different sort of mindset. I was very surprised by people's fear around contracts and for me it's very much of valuing your business and valuing the other party's interests because everybody's protected if you have it all in writing and it's even little things, it's not even just the loss of products, but it can be your deliverables for example if you're a brand and you say you provide some products and you're also paying someone maybe you're paying them five hundred six hundred dollars for some Instagram posts or a blog post you may want to be able to make edits to drafts and that's certainly something that you can do you may want to be able to use that influencers image on your website or your social media if you don't put all of that into writing then you lose some of those rights and it makes everybody knows what the arrangement is up front and there are just far less issues and obviously a contract doesn't guarantee everything there are certainly times where people fall off the face of the earth and you never hear from them again. There's not a ton you can do and like you said sometimes you just have bad that as a small business owner, it happens to me sometimes with clients it's just unfortunate it's frustrating you become angry here, but at the same time I see far fewer issues when something is put into writing and there are contracts then when there aren't.

Salena: I think the whole contract thing just means both parties are going in there with the knowledge that there's an expectation from each person and  I was just sitting here thinking if you are using an influencer, if you have this contract you'll have an idea of like you said what they're going to write what they're going to feature, when they're going to feature it and of course you should be building a whole marketing campaign around being featured by this influencer. So, like you were mentioning if things don't go the way that they're supposed to yet potentially you've paid for advertising somewhere else to promote the fact, that you were promoted and your whole marketing and advertising calendar could be completely thrown out, if it all goes pear-shaped.

Jamie: Exactly, so it's just you know what to expect and the influencer knows to what to expect because every bit as much as you're relying on the influencer for that exposure for that engagement with their readers relying on that money as well that's how they run their businesses and so, I know a lot of influencers the ones who treat it like a business, who take it very seriously their reputations are everything and they also want to do right by the brands. So, when you find the right one that relationship can pay off so much.

Salena: Okay can we quickly touch on the rulings that we have to have I know you've got them in America we've got them in Australia about having to disclose paid advertising or sponsorship, there's maybe some people here who haven't branched into influencer marketing and they may get a little bit upset when it says hashtag sponsor. So, can you give us a little bit of legal jargon um what we need to do to comply with current regulations.

Jamie: Sure, so in the US the FTC governs the disclosures force paid sponsored content and essentially the FTC is worried about the consumer and I always call it the mom test my mom is in her seventies she has a flip phone and so, my mom needs to know when she's reading a blog post who's not technically savvy at all that that blog posts that Instagram posts that video is sponsored and the technical language used by the FTC is called clear and conspicuous. So, the disclosure needs to be front and center it can't be hidden, it needs to be before any kind of clickable link where if you're writing a blog post and you're writing all about somebody's product if there's a link in the blog post where a reader could click it and go to another blog post your disclosure needs to be before that so not buried at the bottom of a blog post hashtag sponsored like you  mentioned hashtag ad they work in Instagram or Twitter, but it can't be buried you know how sometimes we see that like paragraph of hashtags and in the middle there's a tiny hashtag ad that doesn't fly either. So, it just needs to be clear and conspicuous people just need to know you can't bury it in small print you can't have it off to the side it can't be on a disclosure page that you link to you just need to do it and a great way to do it, I think is through natural language and to just weave it into the prose of your blog post you know I am excited to be working with and partnering with this brand they've provided me this product. So, I can talk to you about it there's easy ways that you can weave it in. so, it's not sort of this giant glaring ad, but that the reader would know this is sponsored.

Salena: I love it and I just think that going into these relationships with your eyes open and knowing that that's what the post is going to look like it's all about expectation right you need to know if they're doing the right thing, but that's what it should look like.

Jamie: Yes exactly because it's not just the influence from the line, but it is also the brand the FTC cares about both and so. they are paying a lot more attention to influencers I'm sure you've seen some of the horror stories of some of the very large influencers you don't disclose, but the FTC it's on a lot of their radar. So, it's important about the brands and the influencers that the disclosures are proper.

Salena: We have exactly the same thing here in Australia. So, pretty much pretty much identical in terms of what you have to disclose and where and when you have to disclose, it is your most common answer to your most common first thing that you say to somebody was did you have a contract or did you have this in writing.

Jamie: Yes.

Salena: You said earlier, I was thinking I have to ask you is that like the most common thing you say.

Jamie: It is one of them you know a lot of people do come to us with concerns or questions or grievances and that is always my first question and can I read your contracts because a lot of people come and ask you know this happened and they did this can they do that and the answer is I don't know until I read the terms of your agreement because every agreement is different.

Salena: And I'm nine times out of ten there's no agreement.

Jamie: It quite that high, but it's higher than I'd like it to be.

Salena: And that is why you're here today you're trying to explain to people that this is not something you should be scared of this does not mean that you're being a bitch if you ask for a contract you are just protecting yourself, you're protecting them, you're protecting your brand and even your consumers and your customers.

Jamie: Absolutely if someone like I said before if someone runs away because of a contract that's a red flag that's a blessing that you found this out ahead of time.

Salena: So, apart from the contract what would be the one thing if you could just say guys if you're interested in influencer marketing, this is the one thing apart a contract that I really wish you would do what would it be.

Jamie: I think it goes back to what I was talking about before if you're a brand and you're really interested in influencer marketing get to know the influencer make sure they're a good fit don't just send out a hundred emails that are all the same, spend a little bit of time on the influencers website and that will go so far, the influencers will do so much more for you because they'll feel valued not just you know one of a hundred people that you've contacted.

Salena: And I guess when you do that when you build that connection then they're more open to just sticking with the general terms and conditions you know maybe they will look at working a little bit cheaper or taking some sort of agreement or letting you adjust the copy all these things that you've mentioned, they can actually start to negotiate when they feel like it's working on both sides not just a business transaction.

Jamie: Exactly and you'd be surprised I have seen influencers who've had sponsored relationships with brands and then six months later the brand will come out with something new and the influencer loves the brand so much the brand may not even pay for it, but they may mention it anyway because they have such a positive feeling about that and so, there's real value to that is to just making it a partnership. What you're saying is you need to build some connections yes, we hide behind computers we hide behind emails and Facebook and the anonymity of the Internet I am a person who gets on the phone that makes everyone panic, clients who tell me I just can't get on the phone with you and I'm like you can do it.

Salena: There is something that I speak at conferences and one of the talks I give is about negotiation, it's one of the points I love to talk about negotiation and the number one piece of advice is get on the phone talk about something completely different you'd be shocked at the connections you can make it makes everybody human.

Salena: I know I actually did an episode once which was called pick up the damn phone.

Jamie: Yeah, I love it, it so true.

Salena: How often do you get you know forty-two e-mails back and forth later and you still haven't resolved the problem just pick up the phone people.

Jamie: It happens all the time, I stopped at a certain point and I say because you know I'm you my clients are paying me by my time and I'm like this would be way more efficient and way cheaper if we just got a call.

Salena: Okay, well you have shared some great information some great tips on ways that we can protect ourselves as brands and how we can work with influences, but I have to ask you what is your favorite store or you can even tell us your favorite brand.

Jamie: Oh that's a great question, my favorite brand, I'm a fashion person and so my favorite brand that I always and they're so minimal but is rag-and-bone there's something about their clothing that I just love.

Salena: Do you love going into stores are you non lunch over.

Jamie: Um, so, I have small children so by default, I'm an online shopper, but if I can sneak into a store I love it.

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Salena: And why would you go back again and again.

Jamie: There's something so clean about their look and it's always they have you know what you're gonna get when you go you know what the quality is and I know that it is always going to have a sort of similar aesthetic even though it changes every season and I like that.

Salena: You like the continuity and confidence of buying with them.

Jamie: I do yep.

Salena: Well thank you for sharing that if we have listeners who are thinking I need one of those contracts. I need Jamie's help I need to look at influencer marketing a little bit more in-depth and make sure that I am protected before I enter into that world where can they find you.

Jamie: My law firm is hashtag legal our website is and there you can reach me at Jamie at, we have our other website, I have a partner which is why I say is business ease which business ease-com and that's where our templates are we also have a lot of great information including our podcast which is the business ease influencer marketing podcast we have some templates and we have courses and lots of great information products that are specific to influencer marketing.

Salena: Well thank you we'll make sure to definitely link all of those up in the show notes because I think this is a topic that people listening to even if they're already working with influences or if they've been thinking about it, they need to go and you really go into this with their eyes open. So, thank you so much for sharing all of this information today.

Jamie: Thanks for having me this was great.


Jamie Lieberman is a partner and founder of Hashtag Legal. Jamie has extensive experience drafting and reviewing contracts, forming entities, drafting site terms and negotiating on behalf of clients. Jamie also has extensive commercial litigation experience, so she has a strong understanding of business and corporate law.

Jamie has been a practicing lawyer for over 10 years and has worked for a large, international law firm in New York City on complex commercial matters and for a Federal District Judge on both civil and criminal federal cases.  Jamie currently teaches Appellate Advocacy at Seton Hall Law School as an adjunct professor. She is also the former Director of Operations and Chief Counsel at an influencer network and has extensive experience working with brands and bloggers at live events and through campaigns.

Jamie graduated from Seton Hall Law School, magna cum laude, Order of the Coif and was the Managing Editor of the Seton Hall Law Review. She completed her undergraduate degree at Lehigh University, with a Bachelor’s Degree in Business and Economics.  Jamie is admitted to practice in New York and New Jersey.

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