Influence at a Price
Protecting Brands in the Influencer Economy
As the importance of influencer marketing grows, it is also attracting greater legal and regulatory scrutiny. James Nurton learns some practical tips on minimizing risks, securing IP rights, and complying with U.S guidance.
The importance of influencers in marketing and brand endorsement is soaring, driven by the popularity of advertising on short-form video platforms such as Instagram, TikTok, and YouTube.
According to Fortune Business Insights, the global creator economy is projected to grow from US $387.83 billion in 2026 to US $2,116.36 billion by 2034, representing a remarkable 23.63 percent compound annual growth rate over this period.
“We’ve seen these endorsement deals and the importance of influencer marketing skyrocket over the last decade,” says Rachel Nicholas, Partner, Womble Bond Dickinson LLP (USA), who is moderating a session titled Influence at a Price: Brand & Sponsor Accountability in Influencer Marketing (Wednesday, November 18, 12:00 pm–1:00 pm).
The session will include a presentation by Annie Chiang, Deputy Director, Bureau of Consumer Protection, Federal Trade Commission (FTC) (USA). She will discuss the FTC’s Guides Concerning Use of Endorsements and Testimonials in Advertising, which were revised for the first time in 14 years in 2023. The Guides cover deceptive and misleading advertising claims and set out what is expected in terms of clarity, transparency, and disclosure.
“The regulatory landscape is now coming into line with how people are consuming this type of marketing exposure,” says Ms. Nicholas.
Notably, the Guides clarify that “clear and conspicuous” means that “a disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.”
They also provide several real-world examples of what would and would not be considered an endorsement.
The risks to brands are serious. In the past year, several consumer class actions have been brought alleging that undisclosed paid relationships with influencers amounted to misleading advertising.
In June 2026, Gymshark USA, Inc. was sued in the U.S. District Court for the Southern District of New York over its relationships with several prominent influencers. ALO Yoga and Revolve have also been hit with class actions.
Appetite for Risk
This new environment means that brands must ensure they are taking appropriate steps to manage risks when working with influencers, says Ms. Nicholas. “Accountability for influencer marketing has moved from the influencer to the brand. So brands, sponsors, agencies, and platforms can all have exposure now.”
She says brands take a wide range of approaches toward influencers. “We have an athletic apparel client that has an athlete they have worked with for years, who is the face of the brand—and then others who have more one-off type of arrangements. We’re seeing a lot of experimentation,” she explains.
Jason Miller is Senior Director of Brand and Creative for Arizona State University’s (ASU) Sun Devils Athletics (USA), the university’s sports program, whose student athletes compete at the highest level of U.S. college athletics. He has spent the past 15 years working on marketing agreements with influencers and will be joining Ms. Nicholas on the panel.
ASU might work with up to 25 influencers over the course of an athletic season to promote games. “The biggest risks that we face are making sure that they tell the story we want to tell, but that hard line has been softening as the space has become more fragmented,” says Mr. Miller.
From a marketing perspective, therefore, he says his inclination is to be “more lenient” toward influencers and to reach out to a range of people and not just sports influencers. “You have to be willing to let what would have been a key hardcore brand line 10 or 15 years ago flex a little bit,” he says. “Your brand can’t just be one hero campaign, one video, one set of photography styles; it’s got to be hundreds, if not thousands, of different iterations broken up, fragmented for different audiences.”
The question for brands is: how do we become comfortable in this gray area? Mr. Miller emphasizes that vetting is key. “We’re doing our due diligence from a marketing and operations standpoint, knowing that the influencers are not going to be in lockstep with how we might create content ourselves, and that’s actually okay,” he says.
Joining Mr. Miller on the panel is Caleb Jay, Vice President & General Counsel, Arizona Diamondbacks (USA), a Major League Baseball (MLB) team based in Phoenix. “We deal with influencers when they come to the ballpark wanting to cover the game or do something in connection with us,” says Mr. Jay.
Unlike some teams (such as the Chicago White Sox), the Diamondbacks do not have formal arrangements with influencers, but welcome one or two to each home game on average.
Typically, the Diamondbacks are approached by influencers who want to write reviews of the ballpark or facilities such as dining offerings.
“Oftentimes, we treat influencers much like any other general media that comes in,” he says. This means they must be vetted and security cleared—demonstrating that they are separate from the brand, like any other media representative.
Mr. Jay says the Diamondbacks have two priorities when it comes to influencers: first, to ensure that the branding is consistent and no rights are compromised; and second, to ensure that the team is not being exposed to any third-party intellectual property (IP) infringement issues.
"Accountability for influencer marketing has moved from the influencer to the brand."
- Rachel Nicholas | Womble Bond Dickinson LLP (USA)
Avoiding IP Infringement
Doing due diligence upfront is essential to avoid potential IP issues, says Ms. Nicholas, “Even if there’s an indemnification provision in the agreement with the influencer, you’re better off doing due diligence at the front end to make sure that that content was cleared.”
She stresses that there are “multiple layers of IP” in every influencer deal. “It’s an often-overlooked piece: making sure that things like trademarks are contemplated in the agreements and that they’re being used in a way that is sufficiently protective of the brand, but also still reads as organic use by the influencer.”
“These influencers have their own reach and speak to their own audience, and so you want to incorporate what they’re advertising for you in a way that reads true to that,” she says.
In addition to unauthorized use of trademarks, influencers may want to post copyrighted content such as game footage, artwork, and background music.
“We try and strike a balance and make sure that both influencers and brands are aware of the risk and then manage that risk as they go into these partnerships,” says Ms. Nicholas. “There are just so many pieces that go into any single piece of influencer content, and there can be exposure on both sides, so you want to be careful and thoughtful with each piece of IP to make sure you’re not stepping into an issue unwittingly.”
Mr. Jay agrees about the importance of setting clear boundaries, saying: “To the extent you do have influencers or would-be influencers working for your organization, you need to be clear where you draw that line, so that it doesn’t look like the messaging is coming from the team, because that opens you up to liability.”
It’s also critical to pay attention to any sector- or jurisdiction-specific regulations. For example, MLB has rules about how teams can work with influencers.
“We wouldn’t be able to have an influencer who is a college baseball athlete or a potential free agent because obviously that could lead to some issues with our competitive balance in the league,” says Mr. Jay.
The MLB policy is updated from time to time. Most recently, it was changed from not permitting an influencer agreement with anyone who plays any sport with a bat and ball to baseball specifically, which has opened up the possibility for teams to work with female college softball athletes.
"The biggest risks that we face are making sure that they tell the story we want to tell."
- Jason Miller | Arizona State University (USA)
Navigating NIL Rights
A key issue for universities concerns name, image, and likeness (NIL) rights of student athletes, following the US $2.8 billion House v. NCAA settlement in June 2025, a landmark U.S. college athletics antitrust settlement that paved the way for many of the country’s leading universities to share revenue directly with athletes.
“All of our players now have to disclose NIL deals through a system that has all been established with the House settlement and the ongoing regulation that’s happening,” says Mr. Miller.
ASU has an NIL manager, who has to liaise with each of more than 600 athletes, review deals, and monitor content to make sure that they are not using its image.
“There’s a whole host of monitoring and management that goes into all of that, as these influencers are part of an organization and have to represent that to the best of their ability, without taking away from our corporate partners and some of the other pieces that we’ve got in play,” Mr. Miller explains.
“It’s a new space, and it’s still evolving,” adds Ms. Nicholas. “I don’t think the dust has fully settled from the House settlement, and I expect there will be more upheaval to make sure that all interests are aligned.”
AI Content Poses New Questions
Another evolving issue is the use of content created using artificial intelligence (AI). Several platforms now tag content that is AI-generated to provide full transparency.
“It’s still new enough that we’re trying to make sure that the contracts and agreements contemplate it in a way that matches with what the brand wants, but also gives creative freedom,” says Ms. Nicholas, who adds: “Not every brand is fully on the AI train.”
Mr. Miller says ASU takes a fairly strict approach. “Our product is a live experience, so to have an AI person promote it feels like a double-edged blade of disingenuousness,” he explains. “As an institution, we do not allow the use of AI as it relates to our student athletes or our brand and logo marks, so it still needs to go through a human process.”
"Oftentimes, we treat influencers much like any other general media that comes in."
- Caleb Jay | Arizona Diamondbacks (USA)
An Evolving Space
The growth and diversity of influencers pose significant challenges for brands that work with them.
“I don’t know how to really define an influencer,” says Mr. Jay. “Some are being paid in kind. Some are getting compensation. Some are making money in different ways. Some are employees.”
Across the board, however, influencers are evolving as the media landscape changes and now impact almost every sector.
Many of them are making significant amounts of money and are represented by agents and lawyers, meaning that brands need to be well-prepared when negotiating with them.
“The level of sophistication on the influencer side has kept up with the demand and the rates that they are able to command now,” says Ms. Nicholas.
It is critical, therefore, for IP advisors to understand and interpret this new landscape—something this session aims to equip them to do.
