Brand marketing has evolved over the years but has not changed significantly. The core concept from printable media marketing of the 50s and 60s holds today: brand managers work to establish content, scripts, stories, and other engaging assets that help to bring more followers and a larger audience to the company’s products and services.
The difference between today’s brand managers and traditional roles is that television and radio are a relatively minor component. Instead, social media platforms have a majority of the visibility of a brand identity.
Thus, in the early aughts, the job of Social Media Marketer (SMM) was conceived. The Social Media Marketer should produce appropriate content for social media platforms and work through a pipeline of production with the client.
This process takes the burden of continually producing content of a company’s shoulders or internal team, freeing up their resources and time. SMM agencies are internally optimized to handle multiple clients and a large number of social media platforms. SMM agencies usually have SEO experts, social media ad services, marketers, video production teams, photographers, illustrators, artists, and writers, all under one roof working together.
A social media management contract is like a contract for a spokesperson or PR representative. It’s a contract made with a person or an agency to manage the client’s brand identity on social media. As social media platforms and audiences have grown, the industry has changed for brand managers.
A brand identity is not like your identity as a person or a company. Just as writers and musicians adopt pseudonyms, the social media persona isn’t the same as the real person. Even though this is clear when talking about a company brand, many SMM contracts are for personal accounts, like celebrities, athletes, or political figures.
Contracts must clarify the SMM roles and what they are allowed to do or say on behalf of the client. Disputes quickly arise between the representatives and the brand’s stakeholders. Even within stakeholders, a disagreement may occur. For these reasons, SMM contracts aren’t simple and must include:
- firm dispute resolution
- licensing ownership
- exclusions and more
The more effort you put into your Social Media Marketing Agreement, the more difficult exceptions and cases you’ll consider. If there’s a way to predetermine the voting party, course of action, and liability owed, both parties can prevent significant headaches from happening later on.
A social media manager is a person or agency that takes care of social media marketing. Depending on the scale of the content or audience that needs to be managed, the Social Media Manager might be one person or a company with hundreds of people.
A social media independent contractor, or freelancer, is someone who creates specific deliverables for the client, like a brand asset package, including logos, frames, typography, color designs, illustrations, animations and more elements. They are more of a branding contractor and may have specific talents rather than broad-spectrum capabilities.
For sensitive clients, a social media independent contractor isn’t likely to be the solution. Although they may have a legal contract, the remoteness and fact that they are an online worker may mean that contract protections, communications, and dispute resolution are more difficult. It’s probably best that independent social media managers work on smaller, low-risk projects.
Where confidential information is involved, NDA agreements, or the likelihood of disputes involving lawyers, arbitration, and more, it’s more appropriate to hire a dedicated SMM in-house. Large companies even have dedicated internal Social Media Managers (or teams) in combination with hiring external, highly reputable agencies to take on the burden of work.
A contract between the client and the SMM can be between an individual and a company (on either side). With each of these combinations of parties, subtle differences remain, but there are many similarities.
An excellent resource for basic contract principles is the short breakdown given by Taylor S. Klett at Sam Houston State University. He discusses the firm definition of Bilateral Express Service Contracts, like a Social Media Management Contract. Such a contract must always contain these parts in writing: Parties, Agreement, Consideration, and Legality. Each of these four parts has its components.
The parties component needs to list the names of the companies or persons who represent the client and the Social Media Marketer. If a small business or larger company is used, the principal address and contact details should be listed. For individuals, the Parties section must include their full legal name and “Doing Business As” (DBA) name, if they are represented as an individual proprietorship or LLC. This is common for multiple terms for SMM contracts, as the pseudonym does not match or resemble the individual’s real identity.
The agreement component is the most complicated of them all. The scope of work, deliverables, timelines, conditions, exceptions, and actions must be defined. Any terms used, locations, or other specific elements need to be determined. The “what if” sections cover disputes, liability, force majeure, and other conditions, and what should be done if these things happen.
Lastly, the execution section includes signatures of the parties, indicating that the agreement is bilaterally agreed. These signatures can be conventionally written on paper, but many jurisdictions now allow for such contracts to be performed with electronic signatures. This can be more convenient because your SMM company is often distributed or remote compared to the client’s location.
The contract needs to include consideration. Consideration is payment or the exchange of something of value in return for the acts defined in the agreement. Without consideration, no agreement or contract is valid. In this section, you need to include pricing details, any fee structure or payment terms, and even references to performance and qualifications.
If you charge by month period, you should also include definitions like “calendar month” vs. 30-day rolling window, as they can be inherently confusing. You should also have penalties here, such as amounts or interest due for late payments.
Lastly, the contract needs to be legal. Legal contracts include the provisions required by law. Depending on the location and jurisdiction, that may consist of federal, state or provincial, county or district, municipal or city, and other authorities.
At each level, laws may require certain elements to be included in the contract or for specific qualifications to be made. For example, federal law in the United States requires contractual parties who are legal persons to be over the age of 18 years. It does not matter if the consideration, agreement, and parties are all valid – if the legality of the contract is invalid, the entirety of the contract is subject to be considered void.
Social media management contracts are highly atypical. That means that social media contract templates are ok as a base, but should be carefully customized. It’s highly recommended to hire a good lawyer to draft your legal documents before beginning any work. Every contract indeed has to have individual components, but a Social Media Management Contract differs in many ways.
As an SMM, you’re probably working with clients’ personal information or insider details about a company and deciding what to make public. Should you live stream a company milestone or make a press release that leaves out some details? These questions can easily lead to a dispute or lawsuit, so they should have supporting documents to make the decisions first, in writing, rather than leaving the question unanswered until it’s too late.
An NDA, or Non-Disclosure Agreement, is a separate document that stipulates exactly what can be made publicly available and what needs to be kept a secret. SMMs can often be unfamiliar with the particular industry, so this information isn’t intuitive to them. For example, NDAs may speak specifically about trade secrets, valuable information, and information about the business owners. Although some insider facts may seem like high-value social media subjects, they can be made clearly off-limits with an NDA.
A simpler form of an NDA is a confidentiality clause. The confidentiality clause is a shorter part of the Social Media Management Contract, reinforcing an existing NDA or saying additional terms. The confidentiality clause usually includes “breach” conditions and acts. Many specific questions and answers can be contained here- usually emphasized because they happen a lot in the particular industry or company’s experience.
In other words- is drafting a Social Media post that contains NDA-private information enough to be considered in breach of the agreement? And what happens if such a breach occurs? Is there a fine or penalty or other action taken against the breaching party? As lawyers, firms, and companies gain more experience, these provisions and clauses tend to get longer, further insulating parties against unexpected lawsuits and business missteps.
There are often robust KPIs or Key Performance Metrics that help define the work for standard products and services. Qualifications like licenses and certifications can be useful to validate the professionalism of the people you hire. Especially in high-risk industries, performance metrics are an essential part of a contract.
Performance metrics can be in terms of scheduling or reports, and they may even relate to variable fees. For example, a variable fee schedule can be introduced that increases payment to the Social Media Manager if the content or social media post performs well and penalizes or reduces fees if the content performs poorly. As SMM becomes a more extensive and more competitive industry, more competitive consideration arrangements like this are becoming popular.
A number of standard provisions and clauses need to be included relating to the content itself. Federal law dictates substantial intellectual property rights. The subject matter is legally well defined, so your contract should take care not to contradict the law or make up your own terms or concepts regarding copyrights.
You also need to make sure that the rights are adequately protected or licensed for any digital marketing works created in the course of the job.
SMM companies that have internal content creation teams spend considerable time and money developing this content. They typically own the rights to the content themselves and should always provide an express, written license for the use of such materials.
Otherwise, should disputes arise, the client may successfully argue that the rights have been sold to them, causing the SMM teams significant financial damages.
Marketing agencies aren’t the only ones who have something to protect. The client needs to be aware of the rights they have with respect to the images, videos, and content made about their person or brand. Prior marketing services performed by other companies can be sub-licensed, and both sides may contribute original content to the ultimate social media content-product. It can get messy quickly, so both parties need to take care to protect their assets going into any agreement.
In high-risk environments like social media management services, there can be benefits to including more protection clauses. Most clauses protect one side or the other, so if a party is attempting to write the most protection contract, they can include the protections that relate to them only (i.e. the client or the contractor).
Your industry may demand more or less of these, depending on your situation. For example, suppose you regularly work with older clients, who are susceptible to lawsuits concerning their mental or physical fitness. In that case, you may want to consider a “full knowledge and understanding” clause, which reinforces the contract’s validity or states that a third party has reviewed the party’s mental fitness.
It’s a good idea in freelancing contracts to include a subcontracting clause. Many companies would preferably their social media marketing contracts are made with one person only. In this case, the subcontracting clause may be called “Subcontracting Not Permitted” or something to that effect.
SMM contracts are less likely to survive a breach than other contracts. For example, an agreement for the purchase of a house may endure the violation of document notarization procedure, a requirement for the local jurisdiction’s legality or governing law. Just because one clause wasn’t met does not mean that the intention of the contract is broken. For Social Media Marketing contracts, the higher risk can cause full termination even on small breaches.
Review and “notice communication procedures” can be defined in a contract. You can even define specifics such as what email address to send from and to for specific communications. This can be useful when developing social media strategies that need to be approved by the client before spending time on the work.
Social media marketing is a broad field, involving many disciplines and high risk, high reward work. Develop your social media management contract to cover as much as you can. A little preventative work early on can enormously benefit all of your latest endeavors. Your clients and the stakeholders of your business will only benefit from your thoughtfulness and care.