Last year we wrote about influencers unionising for the first time in the UK and what this means for agencies and brands (click here for article).

This month we bring news that the Screen Actors Guild - American Federation of Television and Radio Artists (“SAG”) has approved a new “influencer agreement” meaning that many more influencers who make a living from advertising on social media platforms will now qualify for protection from the American union. Prior to this announcement, YouTube was the only influencer advertising platform protected by SAG.

What work does the new agreement cover? 

The SAG influencer agreement has not yet been released, however we understand from SAG’s announcement and various reports in the industry press that it recognises “influencer-generated branded content” as a new type of advertising and will cover advertising work done across all social media platforms.

However, only video or audio content created specifically for a brand is covered; union protection isn’t given for influencer campaigns using static images. This means, for example, that picture content posted on Instagram won’t be covered, whereas video content and stories will be. 

It is clear that the content must be created by the influencer themselves, however there is some confusion in the press about whether influencer-generated content is only covered where it exists on an influencer’s personal platforms or if it extends to content placed on a brand’s social media channels. Advertising campaigns that are created for a company appear to be excluded as they fall under the union’s separate contract for commercials.

How do influencers get a “SAG card”?

Anyone who’s watched Channel 4’s recent smash hit  “It’s A Sin” (and honestly who hasn’t?) will have seen characters Ritchie and Jill’s quest to get their Equity card and understood that this is what it means to break into the entertainment industry. In the US, getting a “SAG card” is much the same thing, it means that you’ve got your foot in the door in Hollywood.

SAG’s new agreement means that more influencers will be able to qualify for a SAG card and the validation (and health and pension benefits) that this brings. While we understand from the NY Times that there is no minimum follower count for influencers who want to join the union, eligibility for health and pension plans will still be based on certain work requirements, for example, how many days the talent has worked under a SAG agreement. It’s not yet been spelled out if there will be different work requirements for influencers.

Anyone who has signed a contract with an advertiser for a branded content deal can access the SAG agreement, provided the influencer is incorporated as a company (including trading via a PSC).

What about the nitty gritty of the agreement itself?

As we say above, the agreement has not been released yet, however some details are emerging which suggest that:

• The deliverables and fee must be included in the agreement in writing.
• The influencer must retain ownership of intellectual property rights in the deliverables.
• There is no “mandated contract minimum”. This means that influencers and advertisers will still be expected to negotiate fees and rates for work, however, 20% of the influencer’s compensation will be allocated to union-covered services and subject to pension and health contributions.

Brands and agencies who anticipate working with SAG talent in an influencer role, would be advised to keep a close eye on when the SAG agreement is released, as the rights position in particular is likely to have an effect on IP clauses in their own contracts. Apparently, SAG also plans to issue a new “Influencer Waiver” under the SAG Commercials Contract which it is understood will mirror the provisions of the influencer agreement.

Does this mean that influencers are “workers”?

As mentioned in our previous article, the existence of a union will not have any impact on a relationship between a brand and influencer that is not an employer and employee / worker relationship, and it is unlikely that an influencer would meet the relevant tests of control and mutuality of obligation to be considered an employee or worker.

However, broadening union membership in this way is a step towards increasing protections for influencers that they otherwise wouldn’t have had. The same is true for other informal-style workers in the gig economy; freelance writers in the US have started forming their own unions, including the Industrial Workers of the World Freelance Journalists Union, in light of shutdowns and layoffs in recent years. The increase in participation in the gig economy is leading to a greater effort to formalise casual platform workers’ rights by way of union participation, and is therefore a point for brands to be aware of when utilising flexible engagement models.

As also mentioned in our previous article, there isn’t anything in particular that brands can do to prepare themselves for contracting with an influencer who is a member of a union. In relation to the SAG  agreement specifically, it will partly be a case of waiting for the full details of the agreement to be released. However, this is a good opportunity for brands to undertake a critical review of their current practices when engaging influencers, and to consider if these are likely to hold up under increased scrutiny that may be afforded by influencers who are enjoying union protections.  With indications that some companies are biting the bullet and purposely hiring individuals as their own employees to act as influencers, the influencer landscape may be starting to change.

It’s also worth flagging that the Supreme Court is due to deliver its judgement on the Aslam v Uber case tomorrow morning (19 February 2021), which is set to be a landmark decision that will set the approach for tribunals on the issue of ‘worker’ status moving forward. Watch this space…