As the influencer marketing industry is set to grow to approximately $13.8 billion in 2021,¹ and COVID-19 has undeniably impacted how (and from where) many traditional performers engage on social media, an industry response appeared inevitable. The Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) and the Joint Policy Committee (JPC) have recently agreed to a new waiver to clarify how union advertisers and agencies address contracts with social media influencers who produce their own content (Influencer Waiver).²

The Influencer Waiver, which is subject to the SAG-AFTRA Commercials Contract (Commercials Contract), was released following SAG-AFTRA’s publication of an Influencer-Produced Sponsored Content Agreement (Influencer Agreement),³ which affords creators of sponsored content the opportunity to qualify for SAG-AFTRA membership like any other commercial performer and to, therefore, be eligible for retirement and health benefits based on their covered earnings.

The Influencer Waiver 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.).” While the advertiser or agency may provide the influencer with certain notes, suggested messaging, or other general guidance relating to the content to be produced, the Influencer Waiver does not extend to scripted content.

Accordingly, the Influencer Waiver provides a way for agencies and advertisers that are signatories or JPC authorizers with respect to the SAG-AFTRA Commercials Contract to engage influencers under a union-approved arrangement. Though the JPC and SAG-AFTRA each reserve all rights regarding the definition of a “commercial,” and whether all or any influencer-produced sponsored content is a “commercial” as defined under the Commercials Contract, the key provisions of the Influencer Waiver can be summarized as follows:

• Compensation. The influencer’s compensation may be freely bargained.

• Pension and Health Contributions. While the Pension and Health contribution rate is the same as under the SAG-AFTRA Commercials Contract at 19 percent (18.5 percent for JPC authorizers), the allocation of the compensation for “Covered Services” (the influencer’s on-camera and/or voiceover services) is increased to 20 percent. The parties may 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.

• Use in Other Media. If the producer wants to use the influencer-produced content on any other channel, platform, or medium, such as on television or for industrial use, the producer must 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. In addition, any television use requires the influencer’s prior consent.

• Maximum Period of Use. The maximum period of use (MPU) is one year from the first posting date. Any use past the MPU must be negotiated with the influencer. However, if the content appears on a social media platform, website or YouTube after the expiration of the MPU but is not relevant to any current campaign and remains in the feed on the original posting date, the producer does not need to make any additional payment but must remove the content should the influencer request it.

• Required Notice to Influencer. At or before the time of engagement, the producer must notify the influencer that the producer intends to use the Influencer Waiver.

• Prohibitions. 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).

Introducing the Influencer Waiver and the Influencer Agreement are important steps by SAG-AFTRA to embrace the evolving landscape and simultaneously preserve its relevance in an advertising industry increasingly focused on leveraging influencer content. By clarifying and simplifying the terms under which influencer content can be produced, a streamlined path for both advertisers and influencers to conduct influencer campaigns under the union’s jurisdiction appears to have arrived.

¹ https://influencermarketinghub.com/ influencer-marketing-benchmark-report-2021/ 

² http://www.jointpolicycommittee.org/wp-content/uploads/2021/03/SAGAFTRA-2021-Waiver-for-Influencer-Produced-Sponsored-Content.pdf

³ http://www.jointpolicycommittee.org/wp-content/uploads/2021/03/2021- Influencer-Produced-Sponsored-Content-Agreement.pdf