SAG-AFTRA Influencer Agreement and Commercial Contract Waiver – Media, Telecom, IT, Entertainment

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In early 2021, two new developments emerged in the world of influencer marketing and talent syndicates. First, in February 2021, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) announced that it would begin welcoming online influencers into the union as part of its “agreement to affecting”. Shortly thereafter, SAG-AFTRA and the Joint Policy Committee Representing Advertisers and Agencies (JPC) announced the introduction of a new “influencer waiver” to the SAG-AFTRA Commercial Agreement.

Below are some common questions and answers about this development and what it means for advertisers and their agencies.

Q: What is the SAG-AFTRA Influencer Agreement?

A: The SAG-AFTRA Influencer Agreement (Influencer Agreement) is a contract intended to allow social media influencers who produce branded content for advertisers themselves and meet certain additional criteria to be processed as members of the union in connection with their eligible services.

Q: What are the requirements for influencers to produce content under the SAG-AFTRA Influence Agreement?

A: In order for an influencer to register and produce eligible content under the Influencer Agreement, they must meet the following criteria:

  • Influencers must self-produce original on-camera video or voice content that showcases an advertiser’s product or service. This means that they must be the only performer to appear in the content and they must also independently write, film and produce all elements of the content. Content may not be written or produced by a third party, such as a production company or advertising agency.

  • Content distribution must be limited to the advertiser’s and influencer’s own social media channels (including YouTube, Facebook, Instagram, TikTok, Twitter, etc.).

  • Influencers must incorporate as a limited liability company or corporation in order to sign the influencer contract.

  • Influencers must contract directly with an advertiser or an advertiser’s agency. They cannot be purchased or contracted through an influencer sourcing network or other third-party intermediary.

  • Influencers cannot perform dangerous stunts, gratuitous nudity and sexual content under the influencer agreement.

  • There is no follower count requirement for an influencer to qualify to produce sponsored content covered by the influencer agreement.

Q: Who is considered the influencer’s “employer” (and why is this important)?

A: Influencers who wish to perform union-covered services under the Influencer Agreement must do so through a business entity that is deemed to be their “employer”. Influencers working under the influencer agreement must first incorporate or form an LLC. The entity they create then signs the influencer agreement and is considered the influencer’s “employer” for the purposes of their union-covered services. The influencer’s entity as a SAG-AFTRA signatory is also responsible for paying the influencer’s pension and health (P&H) contributions to the union from the influencer’s compensation earned through their services. covered by the union.

Q: How can my agency/brand hire an influencer who has joined SAG-AFTRA under the Influencer Agreement?

A: Advertisers and agencies that are not signatories to the SAG-AFTRA Business Agreement may freely hire influencers who have become union members under the Influence Agreement and will not be subject to any union obligations. In such an event, the influencer (through their entity) would be solely responsible for meeting all union requirements, including calculating and contributing P&H payouts to the union. The advertiser or agency won’t need to change their usual course of action to hire that influencer – and in fact may not even know if the influencers are providing services under the syndicate or not.

For advertisers and agencies that are signatories to the SAG-AFTRA Business Agreement, influencers cannot be engaged under the influencer agreement. Instead, these signatories may use the Influencer Waiver of Business Agreement, described in more detail below.

Q: What is an influencer waiver of business contract?

A: Advertisers and agencies that are signatories to the SAG-AFTRA Advertising Agreement are required to meet certain minimum requirements and standards when engaging artists to appear in advertisements. With the increase in sponsored content produced by influencers in recent years, it has not always been clear whether some influencer content could be considered advertising. The Influencer Waiver to the Commercials Contract (Waiver) offers a solution to this murky question by providing a safe harbor for signatory agencies and advertisers seeking to use sponsored content produced by influencers, while granting influencers similar treatment to what they would receive if they produced eligible content under the aforementioned influencer agreement.

By using the waiver to engage influencers to produce sponsored content themselves, signatory advertisers and agencies can freely negotiate the fees to be paid to the influencer, with no minimum rate required by the syndicate, and can use content produced by the influencer for a maximum of one year. year. In exchange, the signatory advertiser or agency must pay the P&H contribution to the syndicate on behalf of the influencer, based on the services covered by the influencer’s syndicate. As long as the contract clearly states the amount of the influencer’s gross compensation as well as the total amount to be contributed to the union’s P&H funds, the parties are free to negotiate whether the P&H contribution should be deducted or paid in addition to the membership fee. influencer.

If the advertiser or agency wishes to extend its use of the influencer’s content outside of social media (such as television) or beyond a one-year period, notice to the influencer and a additional negotiation are required. Any extended use of the Influencer’s Content in other media or for a longer duration will result in the need to pay the Influencer an additional Usage Fee in accordance with the Advertising Agreement.

Q: If my agency/brand is a signatory to the advertising contract, does that mean we can only hire influencers who become members of SAG-AFTRA?

A: A signatory advertiser or agency is free to hire any influencer, whether or not they are a union member. As long as the individual provides sponsored content produced by the influencer, the advertiser or agency may engage the individual using the Influencer Waiver, regardless of their union membership status. By using the waiver and providing influencers with benefits similar to those they would receive under the influencer agreement, advertisers and signatory agencies can avoid potential challenges from the syndicate if content produced by the influencer could be considered an advertisement.

Q: Will it become more expensive or complicated for my agency/brand to hire influencers now?

A: Since influencers who create qualifying content as SAG-AFTRA members are now required to contribute to the union’s P&H fund, they may be incentivized to charge higher rates. However, these developments are unlikely to have a significant impact on the usual influencer engagement process.

Agencies and advertisers who are not signatories to the advertising contract are unlikely to see any changes or have increased obligations due to the influencers they hire. Agencies and signatory advertisers will need to engage in additional negotiations regarding how the influencer’s P&H contribution will be paid, but will not otherwise be required to assume any increased obligations.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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