November 28, 2022

Volume XII, Number 332

Advertisement
Advertisement

Brands And Influencers Need To Know About SAG-AFTRA’s New Influencer Agreement

In February 2021, SAG-AFTRA’s National Board voted to approve a new Influencer Agreement.  But, the announcement included few details, leaving many Brands and so-called Influencers to wonder what’s the deal?

To date, SAG-AFTRA has not released the actual long form agreement covering Influencers, but it has posted an Influencer Agreement Fact Sheet online here.  The Fact Sheet makes clear that, for now, the Influencer Agreement is extremely narrow in reach.  Indeed, it all but places the entire onus of documentation, compliance, and pension and health contributions solely on the Influencer.  Therefore, the Influencer Agreement will allow Influencers to earn union eligibility and make their own contributions toward their own benefits.  Here are the key points for Brands and Influencers to be aware of:

Who Is An Eligible Influencer?

As an initial matter, an “Influencer” is a content creator who enters into a promotional deal with a brand whereby the Influencer creates content and distributes it via social media platforms such as Facebook, Instagram, TikTok, YouTube, and other social media platforms.

Only Influencers who perform alone are currently eligible for coverage.  Duos, ensembles, families, etc., are not currently eligible.  Additionally, the Influencer must be a corporation or an LLC.  Partnerships, sole proprietorships, and other business entity forms are not eligible.  The Influencer must have a direct contractual relationship with the Brand, and must provide proof of the contract to SAG-AFTRA as part of the review and approval process.

There is no minimum follower requirement.  So, as long as the Influencer is one person and is a corporation or LLC, the Influencer is eligible to apply through SAG-AFTRA’s online portal.

What About The Content?

The Influencer must produce and distribute the content alone.  Third-party production entity involvement is not allowed.  Furthermore, dangerous stunts, gratuitous nudity and sexual content is not permitted.  And, importantly, the Influencer must own the intellectual property, and the ownership must be documented in the written agreement with the Brand.

There are also strict restrictions on the use of the Influencer created content as well.  Exhibition of the Influencer created content is only permitted on the Influencer’s and the Brand’s social media feeds, YouTube channels and respective websites.  Although the Brand may distribute the content, it may not edit it.  Additionally, the content may not be used in any other areas of SAG-AFTRA’s jurisdiction such as commercials or industrials.

What About Pension & Health Contributions?

Brands can breathe a sigh of relief because under the current iteration of the Influencer Agreement, the Brand has no obligation to contribute any money to the pension and health plan.  Rather, the obligation is solely on the Influencer.  The Influencer’s respective company is treated like an advertising agency that makes pension and health contributions on the portion of negotiated compensation between the Brand and the Influencer that constitutes “covered services,” meaning the allocation to the Influencer’s work as an on-screen performer rather than as a producer, writer, cinematographer, editor, etc.  The default will be a minimum 20% allocation to covered services.  Then, P&H contributions are based upon this covered services figure.

Therefore, if a non-signatory Brand receives a proposed budget from an Influencer containing a line item for P&H, the Brand need not worry because it is not responsible making the benefits contributions on behalf of the Influencer.

For now, the Influencer Agreement is a narrow agreement that places the entire burden of compliance on the Influencer, not the Brand.  However, Brands and Influencers alike should consult with their respective legal representatives to ensure they are abiding by the guidelines as the Influencer Agreement takes shape and is put into practice going forward.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 68
Advertisement
Advertisement
Advertisement

About this Author

Michael T. Campbell Labor and Employment Attorney Sheppard Mullin Century City, CA
Associate

Michael Campbell is an associate in the Labor and Employment Practice Group in the firm's Century City office.

Areas of Practice

Michael represents employers in all aspects of labor and employment litigation in defense of complaints for class action, collective action, representative PAGA actions, and single-plaintiff matters in both court and arbitration. He has successfully litigated and obtained complete defense awards in a multi-plaintiff arbitration, a single-plaintiff discrimination and wage-and-hour arbitration, obtained summary judgment in court, as...

310-228-3726
Richard Kopenhefer Employment Attorney
Partner

Richard Kopenhefer is a partner in the Labor & Employment Practice Group in the firm's Los Angeles office. 

Areas of Practice

Mr. Kopenhefer represents producers and distributors of feature films, television shows, electronic games, commercials and new media, principally in their dealings with the unions and guilds in the entertainment industry. He regularly negotiates, arbitrates and litigates with SAG/AFTRA, DGA, WGA, AFM, IATSE and the Teamsters, along with their respective benefit plans and trusts. He advises clients concerning development disputes...

310.228.3720
Advertisement
Advertisement
Advertisement