A lot of information to digest, for sure.
A Deeper Dive into the New SAG-AFTRA Influencer Waiver and Influencer Agreement
By Brian Murphy |
“This article, written by Brian Murphy, Partner at FKKS, was originally published on the firm’s blog and is reprinted here with permission from FKKS.”
On March 10, the Joint Policy Committee (“JPC”) and SAG-AFTRA issued the all-new 2021 Waiver for Influencer-Produced Sponsored Content (the “Influencer Waiver”) pursuant to the SAG-AFTRA Commercials Contract, and the union released the full text of its standalone 2021 Influencer-Produced Sponsored Content Agreement (the “Influencer Agreement”). This is BIG news. Without a doubt, these two documents will reshape the way that influencer marketing is conducted in the years to come.
Now that the waiver and agreement are available for use, agencies and brands are ready to take them out for a test spin. This post includes our preliminary thoughts about how the waiver and the agreement will work in practice.
The Influencer Agreement and the Influencer Waiver share a goal: to provide a mechanism to cover, under a SAG-AFTRA collective bargaining agreement (“CBA”), content that an influencer produces for an advertiser. However, they take different paths to get there, and those paths are mutually exclusive.
The Influencer Agreement: As we wrote about in this prior post, the Influencer – not the brand or the advertising agency – signs on to the Influencer Agreement to cover a project. Or to be more precise, the Influencer through a business entity (either a corporation or an LLC) becomes the signatory producer, and also functions as a “loan out” corporation that furnishes his/her/their own services, for the project. At 40,000 feet, think of the Influencer Agreement as a vehicle for Influencers to cover their work under a SAG-AFTRA CBA and, through that process, potentially become eligible for SAG-AFTRA membership and benefits. But the Influencer Agreement comes with a number of restrictions (discussed below), including this important one: it cannot be used if “a signatory or a JPC authorizer advertiser/ad agency is involved with the project.”
The Influencer Waiver: That’s where the Influencer Waiver comes in. The waiver is available to advertisers and agencies that are signatories to the SAG-AFTRA Commercials Contract and provides an opportunity to address a potential grey area: whether influencer-produced videos qualify as “commercials” that SAG-Commercials Contract signatories are required to “produce union.” As every advertising business affairs executive knows, the answer to that question is sometimes anything but clear. The union’s position appears to be that all (or at least most) video content created by an influencer for a brand meets the CBA’s definition of a “commercial.” The industry disagrees. Vehemently. Influencer videos come in all shapes and sizes. While some influencer videos reasonably can be viewed as commercials, others are more like documentary shorts, entertainment content, or industrial “how to” videos. These types of videos may be paid for by brands, have product integration, and serve a promotional purpose, but that doesn’t necessarily mean that they always are “commercials.”
The Influencer Waiver doesn’t attempt to settle this thorny question. Instead, the waiver creates a new category of content – Influencer-Produced Sponsored Content – and the union and the JPC “each reserve all rights with respect to the definition of a ‘commercial,’ and whether all or any Influencer-Produced Sponsored Content is a ‘commercial’ as defined under Section 4 of the Commercials Contract.” In other words, the bargaining parties agreed to continue to disagree. So, what does this mean for a signatory? It means the signatory has options. If a signatory is engaging an influencer and feels confident that the Influencer-produced videos will not be “commercials,” it can proceed on a non-union basis. If the signatory isn’t certain, or if it doesn’t want to spend even a second fretting about the possibility of a union claim down the road, then it can produce under the waiver. If ambiguity fatigues you, then the Influencer Waiver is a gift from above.
For the right-brained among us, this flow chart is a guide for figuring out whether influencer videos can be produced under the Influencer Agreement, the Influencer Waiver, on a non-union basis, or as “commercials” under the SAG-AFTRA Commercials Contract.
The Influencer Agreement and the Influencer Waiver come with restrictions as to when they can be used. Some restrictions apply to both: for example, both exclude content written, filmed, or produced by a person or entity other than the Influencer. Other restrictions apply only to the Influencer Agreement: for example, the Influencer Agreement can’t be used if anyone other than the Influencer appears in the content or if the brand insists on owning the Influencer’s work product, but no similar restrictions apply to the Influencer Waiver. And there are other nuances between the two that may or may not be material.
The charts below show a side-by-side comparison of the key provisions in Influencer Agreement and the Influencer Waiver.
A lot of information to digest, for sure.