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We have been working with a number of companies developing platforms that connect brands and/or content owners with creators, influencers and clippers. One thing has become clear: there isn't one legal model for these platforms.
Clipping platforms, for example, often depend on giving large numbers of clippers considerable freedom to decide what to clip, how to edit it and where to distribute it. That gives a brand tremendous potential scale, but less control over every piece of content. That tension between scale and control was one of the central issues in our recent clipping work.
Influencer platforms can operate differently. Some are highly involved, helping manage creators, campaigns, content review and compliance, and potentially providing indemnification or insurance protection. Others operate much more like a SaaS marketplace, providing the technology to connect brands and creators while leaving most of those responsibilities with the brand. The latter may be substantially less expensive, but the brand is also getting less.
Neither model is necessarily better. But you need to decide which one you're building because it affects the product, pricing, contracts and risk.
The three legal building blocks
For most of these platforms, we generally think about three separate pieces.
Creator terms. These govern the clippers, influencers or creators who sign up for the platform. They need to address what creators can and cannot do, content and IP rights, disclosure requirements, payment, fraud, takedowns and other rules for participation.
You may also want creators to indemnify the platform and carry insurance. But there is a practical limitation: an indemnity is only as valuable as the party giving it. Many individual creators won't have the resources to satisfy a meaningful indemnity, and many won't carry meaningful insurance even if their contract says they should. The platform still needs to decide how much content-related risk it is willing to assume.
The brand or client agreement. Think of this more like an agency-client MSA. It allocates responsibility between the platform and the brand, and addresses fees, payment, content and campaign responsibilities, IP ownership and licensing, indemnification, insurance, liability and exactly what the platform is and isn't agreeing to review.
This is where the business model really matters. A brand paying a premium for a highly involved platform may expect meaningful review and risk protection. A brand using a lower-cost SaaS model shouldn't assume it is getting those same services.
Privacy and data. This needs to be treated as its own work stream. A platform may collect contact and account information, social-media and analytics information, OAuth data, and tax and payment information needed to compensate creators.
That means understanding what information is actually being collected, why it is needed, how it is used and shared, how long it is retained and what happens when a creator disconnects an account or revokes access. In some cases, the right answer may be not to collect information the platform doesn't actually need.
Think internationally from the beginning
These platforms also tend to cross borders quickly. A brand may be in the U.S., while its creators or clippers can be almost anywhere.
That can raise different privacy, payment, tax, advertising, IP and contracting issues. A platform therefore needs to decide where it really wants to operate and how much it wants to invest in country-by-country compliance.
You don't necessarily need to launch everywhere simply because creators everywhere can find your platform. Sometimes limiting participation to markets where you've done the necessary diligence is the better approach.
Don't overlook how the platform actually works
There are also a few issues that should be addressed in the product itself, not just the contracts.
If compensation depends on views or other performance metrics, determine which metrics control, where the data comes from, how attribution works and what happens with suspected impression fraud or self-boosting. Your clipping presentation specifically identifies impression fraud and platform algorithms as business and legal risks.
If you're reviewing content, decide what “review” actually means. Are you reviewing compliance with a campaign brief, FTC disclosures, claims, copyrights, music rights or something else?
And think about context. Clippers in particular may edit source material in ways that alter its meaning. Your clipping presentation expressly raises what happens when a clipper “substantially changes the meaning or context of the original work.”
Finally, remember that you're building a platform on top of other platforms. Changes to TikTok, Instagram, YouTube or other social platforms' APIs, algorithms, account permissions and policies can materially affect the business. Your broader influencer-agreement presentation similarly identifies KPIs, attribution, make-goods, takedowns and platform changes as issues that need to be addressed contractually.
The takeaway
If you're developing a creator, influencer or clipping platform, don't wait until the product is finished to start thinking about the legal documents.
First decide what the platform actually does, how much control it exercises and how much responsibility it is willing to assume. Then make sure the creator terms, client agreement, privacy structure and product itself all reflect those decisions.
The best platform terms aren't necessarily the longest. They are the ones that accurately reflect the economics, rights, workflow and risk allocation of the business you've actually built.
