“This article, written by Brian Murphy, a partner at FKKS, was originally published on the firm’s blog and is reprinted here with permission from FKKS.”

In recognition of the enormous impact that the current pandemic is having on commercial production, SAG-AFTRA and the Joint Policy Committee (“JPC”) have put on “pause” their long-running disagreement regarding whether producers must pay union wages under the SAG-AFTRA Commercials Contract (the “Commercials Contract”) to people appearing in footage licensed from stock footage suppliers like Getty.

Section 7 of the Commercials Contract provides that “persons appearing in commercials in still photographs and/or stock footage made for any advertising purpose, which photographs and/or stock footage as used in the commercial would bring such persons within the definition of the term ‘principal performer’ … shall be entitled to sums equal to session and use fees as provided herein.” SAG-AFTRA takes the position that stock footage is “made for an advertising purpose”; the JPC disputes this interpretation and contends that stock footage is not “made for an advertising purpose.” And so it goes.

Pursuant to the temporary waiver (available here) the union has agreed to refrain from pursuing its interpretation of Section 7 during a “waiver period,” on a non-precedential, non-citable basis. When this period is over, the parties (in the words of the waiver) would both revert to “their current positions regarding the application of Section 7 to stock footage without prejudice.” #backtonormal.

These are the conditions of the waiver:

  1. The producer must make pension and health contributions on scale wages for each person in the stock footage who qualifies as a principal performer.
  2. The waiver period will end when the union provides fourteen days’ notice of termination to the JPC.
  3. The stock footage in question must be sourced from an independent, third-party stock footage house, and the stock footage in question must have been produced on or before February 1, 2020.
  4. The commercial into which the stock footage was incorporated must include at least one voiceover performer who is paid union wages.
  5. If an individual who appears in the stock footage independently approaches the union to pursue a claim for payment under Section 7, the union will be free to pursue a claim on behalf of that individual. However, SAG-AFTRA will not search out or otherwise solicit claims.

In an alert accompanying the waiver, the JPC noted that there “have been numerous claims regarding this issue” recently and that the “JPC seeks to minimize risk while ensuring production methods continue to be available.”