SAG-AFTRA and JPC Release a New Influencer Waiver

Advertising Law

In a major move to expand into the influencer market and bring more clarity to influencer-produced advertising content, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) and the Joint Policy Committee (JPC) agreed to a new Waiver for Influencer Produced Sponsored Content (Influencer Waiver).

The Influencer Waiver was released on the heels of SAG-AFTRA’s publication of the Influencer-Produced Sponsored Content Agreement (Influencer Agreement), which allows content creators with a social following who are paid by advertisers to promote products or services on the content creator’s or advertiser’s website, social media and YouTube channels (that is, influencers) an opportunity to qualify for SAG-AFTRA membership and take advantage of SAG-AFTRA’s collective bargaining muscle. See our previous article, “SAG-AFTRA Membership Extending to Social Media Influencers,” for details on the Influencer Agreement.

Similar to the Influencer Agreement, the Influencer Waiver only covers audiovisual content that is “self-produced by an Influencer to promote an advertiser’s product or service created only for digital distribution on the Influencer’s and/or agency’s and/or advertiser’s website, on social media and/or on YouTube,” and does not cover content that is “written, filmed or produced by any party engaged by the advertiser or agency (other than the Influencer) (i.e., production company, ad agency, PR firm, etc.).”

Below are key provisions from the Influencer Waiver:

  • The influencer’s compensation may be freely bargained.
  • While the Pension and Health contribution rate is the same as under the SAG-AFTRA Commercials Contract at 19% (18.5% for JPC authorizers), the allocation of the compensation for “Covered Services” (i.e., influencer’s on-camera and/or voiceover services) is 20%. The parties can negotiate how the contribution will be deducted from or paid in addition to the gross compensation, so long as the compensation and contribution amounts are clearly and separately stated in the contract.
  • If the producer wants to use the influencer content under the Influencer Waiver on any other channel, platform or medium, such as television, the producer has to notify the influencer of such intended use. If the producer actually uses such content on another channel, platform or medium that is covered by another SAG-AFTRA collective bargaining agreement, then the producer must pay the influencer no less than the full use fees for the applicable medium. Additionally, any television use requires the influencer’s prior consent.
  • The maximum period of use (MPU) is one year from the posting date. Any use past the MPU must be negotiated with the influencer. However, if the content appears on a website, a social media platform or YouTube after the expiration of the MPU but is not relevant to any current campaign and remains in the feed tied to the original posting date, the producer does not need to make any additional payment but must remove the content at the influencer’s request.
  • The producer must notify the influencer at or before the time of engagement that the producer intends to use the Influencer Waiver.
  • Content may not contain stunts or hazardous/dangerous conditions, and may not contain nudity or sexually explicit content (except to the extent necessary to demonstrate the advertiser’s product or service).

The Influencer Waiver expires on March 31, 2022, unless extended by SAG-AFTRA and the JPC.

Why It Matters

The twin release of the Influencer Waiver and the Influencer Agreement this month is a major step by SAG-AFTRA to maintain its relevance in an advertising industry increasingly dominated by influencer content. By clarifying and simplifying the terms under which influencer content can be produced, SAG-AFTRA has created a much easier, and more appealing, path for both advertisers and influencers to conduct influencer campaigns under the union’s jurisdiction. With the Influencer Waiver and the Influencer Agreement, so long as the content is created for digital distribution only, as would be the case in typical influencer campaigns, (1) brands can use SAG-AFTRA members to create influencer content without wondering whether the content should be treated as a commercial under the SAG-AFTRA Commercials Contract, and without having to worry about the minimum fees required under the Commercials Contract (since compensation can now be freely negotiated); and (2) brands can engage influencers directly instead of having to go through a SAG-AFTRA signatory by having influencers act as the production company under the Influencer Agreement.

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