With a growing interest by influencers to join the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA), the conversations surrounding how influencers are able to produce their content for themselves and brand agencies has been anything but clear and easy to navigate.
Back in March, the Joint Policy Committee (JPC) and SAG-AFTRA issued the brand new 2021 Waiver for Influencer-Produced Sponsored Content (the “Influencer Waiver”) pursuant to the SAG-AFTRA Commercials Contract in efforts of expanding into the influencer market.
The Union released the full text of the 2021 Influencer-Produced Sponsored Content Agreement (the “Influencer Agreement”).
Collectively, these two agreements will redefine how influencer marketing is conducted throughout the entertainment industry. Both the Influencer Waiver and Influencer Agreement have been designed to address content that an influencer produces for an advertiser, which are mutually exclusive.
This article is the first in a series which will explain how both operate collectively and in their individual capacities, beginning by explaining why these agreements came to be.
Exploring the SAG-AFTRA “Influencer Agreement”
Valued at close to $15 billion, the influencer marketing industry continues to rise as we make our way into 2022.
Pursuant to the Influencer Agreement, any individual who is paid by an advertiser to advertise products through their individual social media accounts (via Facebook, Twitter, Instagram, TikTok, Snapchat, etc.) is protected by the union.
This Agreement applies specifically to the influencer (not the brand or advertising agency), whereby the individual sought out signs the agreement for a particular project or event.
The best way to describe the Influencer Agreement is a vehicle for influencer to have their work covered and protected under a SAG-AFTRA collective bargaining agreement (CBA), which entitles these influencers to become eligible for SAG-AFTRA membership and benefits.
Unfortunately, this Agreement does not apply to any influencer DUO or GROUPS.
Exploring the Influencer Waiver Agreement
Next, comes the Influencer Waiver Agreement, which unlike the Influencer Agreement, is available to advertisers and brand agencies that are signatories to the SAG-AFTRA Commercials Contract.
This Agreement specifically addresses whether influencer-produced videos can be characterized as “commercials” that SAG-Commercials Contract signatories are required to “produce union.”
Are Influencer Videos ‘Commercials’ Or Something Else?
The answer to the above question, is certainly a grey area in the industry.
On one hand, the union aggressively argues that influencer videos that are created for a brand are considered to be “commercials” under the CBA’s definition.
In contrast, the industry aggressively argues that influencer videos are not commercials, and rather, come in various formats, including documentary shorts, entertainment content, or even instructional “how to” videos.
A New Category of Content: Influencer-Produced Sponsored Content
Taking the arguments above into consideration, the Waiver creates a brand new category of content that didn’t exist previously – Influencer-Produced Sponsored Content.
What this really boils down to is another attempt by both the union and the industry to define what falls within the confines of a “commercial” under the CBA. This type of content allows for the signatory to the waiver to have a number of options, meaning that if a signatory is engaging an influencer and truly believes that the produced videos do not fall under the definition of a “commercial,” it can proceed on a non-union basis.
However, if the signatory isn’t certain on whether the produced videos fall under the current definition of a “commercial,” or doesn’t want to risk a future union claim, then it can produce that content under the Waiver. In other words, the Waiver is a “get out of jail” card in the event you are truly confused, which most in the industry falls under.
Regardless of where you fall on the spectrum of arguments presented by the union and industry, the release of these two agreements is a major step by SAG-AFTRA to maintain relevance in the the advertising and marketing space, which is starting to become dominated by thought leaders and influencers.
For more information about the two agreements, you can look at the SAG-AFTRA Fact Sheet.
This piece is the first in the series discussing the 2021 Influencer Waiver and Influencer Agreements. For more of Andrew’s work, please click here.