On February 6, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) National Board approved a new “Influencer Agreement” that covers certain “influencer-generated branded content” across all social media platforms and other digital channels, including Facebook, Twitch, Instagram, Snapchat and TikTok.
The new Influencer Agreement is designed to give content creators with a social following who are paid by advertisers to promote products or services on the content creator’s or advertiser’s websites, social media and YouTube channels (that is, “influencers”) an opportunity to qualify for SAG-AFTRA membership and take advantage of SAG-AFTRA’s collective bargaining muscle. Influencers will be bound by the same membership rules as other union members.
The approval marks the first time SAG-AFTRA has offered a contract that specifically allows influencers to cover the branded content they create. Previously, the only similar advertising platform within SAG-AFTRA’s jurisdiction was YouTube. The expansion beyond YouTube to all social media platforms will enable more influencers across these platforms to earn union income and qualify for pension and health benefits.
According to the Influencer Agreement Fact Sheet, which SAG-AFTRA released following the National Board’s approval, an influencer who elects to sign the Influencer Agreement must do so through the influencer’s company, which must be incorporated as a corporation or a limited liability company. The influencer’s company acts like an advertising agency that produces, edits and distributes content for the advertiser. Compensation is to be freely negotiated with the advertiser (i.e., unlike the SAG-AFTRA Commercials Contract, there is no minimum compensation required to be paid to the influencer), and the influencer (and not the advertiser or another SAG-AFTRA signatory agency acting on the advertiser’s behalf) pays Pension & Health contributions on a minimum of 20% of their compensation that represents their “covered services” (i.e., work as a performer and not as a writer, producer, editor or other services).
Other details described in the Influencer Agreement Fact Sheet and early reports include the following:
- The advertiser must have a direct contractual relationship with the influencer.
- The influencer must own their own intellectual property.
- The content covered by the Influencer Agreement will be limited to branded video, audio and/or audiovisual content (but not still imagery) (e.g., Instagram Stories, Instagram Reels, Twitch streams, TikTok videos).
- The content may not include hazardous stunts, gratuitous nudity or sexual content.
- The influencer must produce and perform the content themselves, with no involvement by any third-party production entity.
- The influencer must perform alone; there are no provisions for ensemble use.
- The influencer may perform on-camera or off-camera (i.e., voice-over performance).
- The content may only be distributed on the influencer’s and/or advertiser’s websites, social media feeds and YouTube channels.
- The content cannot be combined with another covered service or used in other mediums within SAG-AFTRA’s jurisdiction (e.g., TV, traditional commercial or industrial use).
- The content may only be used for up to one year, unless otherwise negotiated.
The union has created a dedicated email address to field interest and inquiries at email@example.com.
Why it matters
The approval of the SAG-AFTRA Influencer Agreement is the union’s recognition of the growing significance and size of the influencer marketing industry. Noting that influencer content creation is currently “overwhelmingly non-union,” SAG-AFTRA President Gabrielle Carteris stated that “until now [the union] has not offered a contract designed specifically to allow Influencers to cover the sponsored content they create,” which resulted in members having “to turn down opportunities for Influencer brand deals or risk working off the card,” and that the union is “losing the opportunity to achieve new and additional funding for the Pension & Health Plans.”
It’s not clear at this point what impact the Influencer Agreement, at least in its current state, will have on advertisers’ approaches to influencer marketing. Given its relatively narrow scope, for those advertisers primarily using celebrities as influencers in connection with broader media, marketing and advertising campaigns, this new Influencer Agreement may have little effect on how such advertisers engage influencers for their campaigns. Additionally, since the Influencer Agreement appears to be limited to influencers who directly contract with advertisers, influencers who are contracted by intermediaries like an influencer agency or a media company, which is a common practice in the industry, would not be able to take advantage of the Influencer Agreement.
Nevertheless, since SAG-AFTRA has taken a major step toward expanding its reach into the influencer marketing industry by effectively treating influencer content as a form of advertising, it would be prudent for any advertisers whose marketing plans include leveraging social media influencers to promote products and services across digital channels (or who are otherwise interested in tapping into the multibillion-dollar influencer marketing industry) to pay close attention to this new development, especially the reception (and adoption) of the Influencer Agreement within the influencer community.
Manatt will continue to follow closely developments regarding the Influencer Agreement and expansion of union membership to social media influencers, providing updates as they become available.