• Five Essential Provisions to Ensure an Effective Influencer Agreement

    Authored by Lindsay Gehman; Originally published in The Daily Journal, May 24, 2018.

    Advertisers continue to utilize influencer marketing as an effective means of connecting with their target consumers and achieving a high ROI.  As such, it is imperative that advertisers and influencers enter into written agreements at the outset in order to ensure an effective campaign and a mutually beneficial relationship between the parties. Written influencer agreements allow the advertiser and influencer to get on the same page about expectations and risk allocation in order to help prevent future disputes.

    Here are five essential provisions of every influencer agreement, which are drafted from the perspective of the advertiser/agency. Another key consideration when drafting influencer agreements from the agency’s perspective is to ensure that the influencer agreement (just like any other vendor agreement) ladders up to the agreement between the agency and its client, the advertiser, as tightly as possible.

    Content Ownership and Rights

    It is imperative to specify who owns the content created by the influencer. If the influencer retains ownership and the advertiser only receives a license to use such content, the scope of such license should be drafted as broadly as possible, both in terms of what the advertiser may do with the content (i.e., repost, create derivative works, etc.) and the type of media it covers (i.e., the advertiser’s website and social channels, broadcasts, publications, etc.). In connection with these rights, the influencer should also provide a license to use his or her name, blog name or social media handle, likeness, voice, image and testimonials to the advertiser in connection with the use of the content.


    In some cases, advertisers expect that they will be the only brand featured in the content they are asking the influencer to create. Accordingly, the influencer agreement should include a clause that prohibits the influencer from monetizing the content in any way without the advertiser’s consent. In addition, advertisers oftentimes expect that the influencer will not work with a competitor of the advertiser during the campaign and sometimes for some period thereafter. In such cases, the influencer agreement should include an exclusivity provision that lists the competitors that are off limits as well as the term of the restriction.


    Because digital campaigns are fluid and can change on a dime, advertisers typically require broad termination rights that allow them to terminate the influencer agreement without cause on little to no advance notice. On the flip side, since influencers are typically selected for their unique expertise or influence (and are therefore difficult to replace), advertisers seek to limit the influencer’s ability to terminate without cause. In terms of what the influencer must be paid in the event of early termination, advertisers typically push for paying only for deliverables that have been accepted prior to the termination date.

    Regardless of where the termination notice period nets out, advertisers should include a morals clause that allows them to terminate the influencer agreement immediately in the event the influencer violates any law or if the influencer’s conduct violates generally acceptable standards of behavior such that the advertiser’s association with the influencer could damage the advertiser’s reputation. Related to this, a clause that requires the influencer to take down any content featuring the advertiser from the influencer’s website or social channels upon the advertiser’s request should be included.

    Representations, Warranties, Covenantsand Indemnification

    In addition to standard representations, warranties and covenants like authority and no conflict, advertisers will also want influencers to represent, warrant and covenant that the influencer has obtained all rights and licenses necessary for the advertiser to use the content, that the content will not infringe or violate any intellectual property rights and that the content will comply with all applicable laws, rules and regulations, including the Federal Trade Commission’s then current Guides Concerning the Use of Endorsements and Testimonials in Advertising and the applicable social media platform’s terms of service.

    Advertisers will also expect the influencer to indemnify the advertiser in certain instances, including if the influencer breaches the agreement or if the influencer acts in a negligent or willful fashion.

    Social Media Policy

    To the extent the advertiser has its own Social Media Policy – which every advertiser should – that Social Media Policy should be attached to the influencer agreement as an exhibit, and the influencer should be required to comply with the policy. Social media policies typically include practical guidance around disclosures, the editorial process and other “best practices” that the influencer should follow.

    Click here to view a PDF of the article.

  • Regional Measure 3 Aims to Reduce Transportation Woes

    On the June 5, 2018 primary ballot, voters in the nine Bay Area counties will vote on Regional Measure 3 (RM-3).  The measure would authorize toll increases on seven Bay Area bridges – all but the Golden Gate Bridge – to fund large-scale improvements to the region’s transportation infrastructure.  If approved, tolls would increase by $1 in January 2019, with subsequent $1 increases in January 2022 and 2025.

    The legislation aims to remedy the Bay Area’s “traffic epidemic” by funding approximately $4.5 billion of transportation improvements over the next 25 years.

    Some of the major projects that would be funded by the toll increases are:

    • Provision of 300 new BART cars to decrease overcrowding – $500 million
    • Extension of BART through Santa Clara to Downtown San Jose – $375 million
    • Extension of CalTrain Downtown to the new Transbay Transit Center – $325 million
    • Bay Area Corridor HOV Express Lanes on the I-80 Bay Bridge, I-580, I-680 in Alameda and Contra Costa, I-880 in Alameda, I-280 in San Francisco, and Highway 101 in San Francisco and San Mateo – $300 million
    • Implementation of the Ferry Enhancement Program, which would include new vessels, additional and more frequent routes, and a new terminal in Mission Bay – $300 million
    • Improvements to the Contra Costa Interstate 680/State Route 4 Interchange, which would include widening of Highway 4 – $210 million

    The ballot measure has the official endorsement of many prominent organizations, including the Bay Area Council, the League of California Cities, SPUR, the San Francisco and Oakland Chambers of Commerce, and the California Labor Federation.

  • Latest Updates to the Central SoMa Plan: What’s New?

    On May 10, 2018, the San Francisco Planning Commission voted unanimously to adopt the Central SoMa Plan and its Implementation Program by certifying the EIR and recommending approval of implementing legislation, with modifications. It also recommended approval of the proposed Central SoMa Housing Sustainability District (HSD), which is separately sponsored by Mayor Mark Farrell and Supervisor Jane Kim. The Central SoMa legislation will next be considered by the Board of Supervisors.

    Central SoMa Plan

    The Planning Commission’s recommended modifications include a Central SoMa Mello Roos Community Financing District (CFD) participation requirement for projects that include new construction or the net addition of more than 40,000 gross square feet on a “Tier B” (residential only) or a “Tier C” property, as defined under proposed Planning Code Section 423.2.  An exception would apply if the project’s square footage would not exceed the total that could be approved under current law.

    See the Central SoMa website for information about other recommended modifications. The recommended modifications to increase potential housing production, which are summarized in our prior blog post, were incorporated in the substituted legislation introduced by Mayor Farrell and Supervisor Kim last month.

    Central SoMa Housing Sustainability District

    The HSD would include all property within the Central SoMa Plan Area. Residential projects in the HSD meeting the following criteria would qualify for a 120-day streamlined ministerial (i.e., no CEQA) review and approval process, including design review by the Planning Department:

    • Residential uses are principally permitted (i.e., do not require conditional use authorization) on the subject property;
    • Residential density would be between 50 and 750 units per acre;
    • The majority of the square footage would be for residential uses;
    • No more than 24,999 gross square feet would be for office uses;
    • The building height would not exceed 160 feet (unless the project is a 100% affordable housing project);
    • At least 10% of units would be designated as permanently affordable to very low or low-income households, as defined under Planning Code Section 415;
    • Prevailing wages would be paid and/or skilled labor would be used for construction, depending in part on the number of units proposed and project timing;
    • There is no locally significant historic structure (i.e., designated landmark or contributory or significant structure under Articles 10 or 11 of the Planning Code) on the project site;
    • There would be no demolition, removal or conversion of any existing dwelling unit(s) on the project site;
    • If a density bonus is requested, there would be no significant shadow impact;
    • All applicable mitigation measures in the Central SoMa FEIR would be implemented;
    • All applicable adopted design review standards would be met; and
    • All applicable zoning standards would be met.

    The clock on the 120-day HSD review and approval process would not start until the Preliminary Project Assessment (PPA) process is completed, all required application materials and affidavits (e.g., to implement mitigation measures) are submitted, and any studies required pursuant to any applicable mitigation measures are completed to the satisfaction of the Planning Department’s Environmental Review Officer.

    HSD project approval would follow a public hearing held by the Planning Department and would be appealable to the Board of Appeals.  A building or site permit for the project would generally need to be obtained within 36 months of project approval.

    The proposed Central SoMa HSD legislation is authorized under AB 73, which was sponsored by Assemblymember David Chiu and signed into law in 2017.

    We will continue to monitor the proposed legislation through the approval process.

  • Timothy Crudo Ranked as a Leading White Collar Lawyer in 2018 Chambers USA Directory

    Coblentz litigation partner Timothy Crudo is again ranked as a Leading Lawyer, Band 4, in the California, Litigation: White Collar Crime & Government Investigations category in the Chambers USA 2018 directory.  Tim has been recognized in the guide since 2016.

    One client noted to Chambers that “I was very happy to have had him represent me. He learned the details and lingo of my industry extremely quickly and was able to advise me in a manner that made me feel comfortable and secure.”

    Tim is a trial lawyer focusing on white collar defense and government enforcement, particularly investigations and cases brought by criminal prosecutors, government regulators, and shareholders in white collar, securities, and corporate governance matters.

    Independent and objective, Chambers USA is carefully researched and widely considered to be the most reputable law firm directory in the world. Ranking criteria include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment and other qualities most valued by legal clients.

    The Coblentz real estate practice is also listed by Chambers USA in the top tier, Band 1, for California, Real Estate: Zoning/Land Use, and real estate partners Pamela Duffy, Harry O’Brien, and Alan Gennis are listed as Leading Lawyers in real estate categories.

    Categories: News
  • Coblentz Real Estate and Land Use Practice Maintains Top Ranking in 2018 Chambers USA Directory

    Coblentz Patch Duffy & Bass maintains its Band 1 ranking, the highest attainable, for Real Estate: Zoning/Land Use (California) in the Chambers USA: America’s Leading Lawyers for Business 2018 directory.

    Known for its strong presence in the Bay Area and comprehensive real estate offering, clients commented on the Coblentz team’s strong zoning reputation and history as a real estate powerhouse, noting, “The firm is embedded in our community and has deep relationships with key stakeholders.” Another client said, “They are excellent lawyers, and down-to-earth, good people. They are my number one go-to firm for San Francisco real estate matters.”

    The widely-respected legal publication also recognized three individual Coblentz real estate and land use partners, Pamela Duffy, Harry O’Brien, and Alan Gennis.

    Pamela Duffy is again ranked as a Leading Lawyer in the top tier, Band 1, in the Real Estate: Zoning/Land Use – California category. Pam is noted for her strength in zoning and land use matters and is particularly recommended for complex, high-value public and private company transactions. She has been recognized in the guide since 2003.

    Harry O’Brien is also again ranked as a Leading Lawyer in Band 2 in the Real Estate: Zoning/Land Use – California category. Clients describe Harry as “a remarkably smart and experienced real estate attorney.” He has been recognized in the guide since 2003.

    Alan Gennis is ranked as a Leading Lawyer in Band 4, in the Real Estate – California category. He is described by clients as “a great example of a business person’s lawyer,” and “the quintessential adviser who always sees the big picture.”

    Independent and objective, Chambers USA is carefully researched and widely considered to be the most reputable law firm directory in the world. Ranking criteria include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment and other qualities most valued by legal clients.

    Coblentz litigation partner Timothy Crudo is also recognized in the 2018 Chambers USA directory as a Leading Lawyer in the California, Litigation: White Collar Crime & Government Investigations category.

    Categories: News