To Produce or Not to Produce

September 15, 2020

Stacy Marcus, chief negotiator for the Joint Policy Committee and Matthew Miller, president of and CEO at the Association of Independent Commercial Producers (AICP), discussed the return of production after COVID-19 and the challenges facing brands, production companies, and actors in the new environment.

The Joint Policy Committee (JPC) represents advertisers and advertising agencies to negotiate with the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) for collective bargaining agreements that govern the use of performers in commercials.

According to the JPC's Stacy Marcus, the following is a summary of protocols which can assist commercial productions during the COVID-19 pandemic:

Temporary Stock Footage Waiver
The pandemic has meant brands often have to use stock footage for ads. For any individual who appears in stock footage, pension and health (P&H) contributions must be made according to SAG-AFTRA rates. On-camera principal actors (OCPs) receive a blanket payment based on session and residual rates. No other payment to talent is required and no social security number is needed.

Stock footage must be sourced from an independent, third-party stock footage house and must have been produced on or before February 1, 2020. The commercial must include at least one voiceover by a union actor. SAG-AFTRA will be free to pursue a claim on behalf of that individual if the individual who appears in the footage approaches SAG-AFTRA to pursue a claim. SAG-AFTRA will not search out or otherwise solicit claims.

Unofficial Expansion of Employee Waiver
Given the limitations imposed by the pandemic, many brands have been unable to cast talent and have been forced to use their employees in commercial shoots. This has the potential to create legal and financial complications if the employees were serving as actors outside of their traditional job responsibilities. An exemption in the form of an employee waiver may or may not be used, depending on the content and context of the creative, to be determined by the JPC.

User-Generated Content
The JPC and SAG-AFTRA are in agreement that unsolicited user-generated content not shot for an advertising purpose is exempt from conditions under the Commercials Contract. The key determinant is that the content needs to be unsolicited (i.e., pre-existing content). Solicited user-generated content may need to comply with additional union requirements depending on the source and creative.

In-Home/Self-Productions
Advertisers have increasingly used influencers or employees of production companies to create new content, most of whom already have in-home studios or knowledge regarding equipment that is necessary to self-produce content. For larger productions, talent is sent equipment to set up at home to film themselves, taking direction via the Zoom platform or other video-conferencing technology.

Options include:

  • The director and/or director of photography (DP) are at home shooting their own family.
  • The DP and other crew members are all at home on their phones, and/or Zoom video conferencing to talent at home filming themselves on their phones.
  • The DP and other crew members are all at home remotely connecting with talent at their home with camera/lights/sound equipment delivered to the homes of the talent. The crew talks the talent through the set-up of equipment for self-filming.
  • The DP and some crew members at home are remotely connecting with talent at home or on location with an assistant director (AD), camera operator, gaffer, and sound crew on location with the talent.

For any live productions during COVID-19, the following conditions were enacted:

Pre-Production Safety Calls
Before the start of production, the creative team must have a Zoom conference call, attended by SAG-AFTRA and JPC representatives, reviewing COVID-19 safety measures including social distancing, testing or temperature taking, and personal protective equipment (PPE). A COVID-19 coordinator must be hired as a part of the production to help ensure and oversee safety guidelines during the shoot. To date, SAG-AFTRA and JPC have cleared more than 600 commercials for production.

COVID-19 Workplace Guidelines and Agency/Client Considerations of the Association of Independent Commercial Producers (AICP)
The Association of Independent Commercial Producers (AICP) is an organization that represents the interests of independent companies specializing in the production and post-production of commercials in film, video, and digital for advertisers and agencies.

Matthew Miller of the AICP said six versions of COVID-19 workplace guidelines have been issued by the AICP since late April 2020. Authorities have used these guidelines to help craft rules and regulations at the state and local levels.

The basic tenets of the guidelines are as follows:

  • Maintain safe working environments — reduce the number of people on set, maintain social distancing, use PPE (including masks).
  • Conduct regular health screenings.
  • Act responsibly and work together.
  • Try to book a production company and post-production company with as much lead time as possible to make sure all needs specific to the project can be attended to. Scheduling must be thought out to ensure safety measure can be adequately met (e.g., any specific testing) and that props and specific equipment can be sourced.
  • Costs for complying with workplace guidelines should be clearly delineated in the bid.
  • If the agency and/or client are attending remotely, or if the project is to be completed remotely, cyber liability insurance should be in place (by way of a wrap-up or individually acquired policy) to cover any data security breaches and any delays due to connectivity should be treated as an overage.
  • Work should be planned to minimize COVID-19-related disruption risks so far as it is reasonably practicable to do so. However, no amount of planning can fully mitigate risks. It should be understood that additional measures will require an approved overage.

For COVID-19-related risks, the agency and/or client should:

  1. Maintain contingency budgets for non-insurable COVID-19-related costs, such as:

     • Additional production costs (which could be incurred, for instance, if locations become unavailable, new crew members become necessary due to sickness, transmission failure, etc.)
    • Non-production-related costs (which could result, for example, if regulations change, costs for quarantining crew are incurred, etc.)
    • Cancellation, postponement, and force majeure

  2. Reasonably approve the replacement of key personnel (director, artist, or talent) in the event they are unable to work due to COVID-19 exposure or infection or possible risk thereof.
  3. Include in an agreement with the company that the agency and/or client is responsible for COVID-19-related costs in the likely event such costs are not covered by insurance.

COVID-19 Testing
Due to current limitations on technology, and to avoid a false sense of security, the JPC and AICP do not support mandated testing of talent and crew unless required by state or local guidelines. However, the JPC and AICP believe talent and crew should have their temperatures taken prior to the start of each production day.

While this position is recommended by the JPC and AICP, brands should be aware that it is in contrast to SAG-AFTRA's preference for polymerase chain reaction (PCR) nasal swab testing to be conducted on all talent and crew that will interact with talent.

The demand for ongoing adherence to these standards and practices is subject to change in accordance with how the COVID-19 pandemic progresses. Any number of modifications or additions to the procedures could be made, depending on whether there is a vaccine and widely available distribution, a second wave of outbreaks, continued restrictions on travel for agency and client personnel, or positive cases on set.

CLE Materials

Source

"To Produce or Not to Produce." Stacy Marcus, Chief Negotiator, Joint Policy Committee on Broadcast Talent Union Relation and Partner, Reed Smith LLP; Matthew Miller, President of and CEO at Association of Independent Commercial Producers. ANA 1-Day Conference, Law and Public Policy, 9/15/20.

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