Inside: Confronting continuing ambiguity in the definition of Internet “commercials”

The key inquiries are whether the advertiser’s video content constitutes an advertising message and whether it could run on television as a commercial in its current form

This is the second in a series of six articles examining recent developments and ongoing issues related to the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) Commercials Contract (Part 1 - the use of "real people" in digital commercial products). Since the 2003 Commercials Contract was negotiated, defining what a “commercial” intended for use on the Internet is, advertisers and agencies have grappled with how to classify the online video content they produce. The definition of an Internet commercial was not updated when the industry and the union renegotiated the Commercials Contract in 2013, which leaves advertisers and agencies — as well as SAG-AFTRA — with continued ambiguity regarding what type of video content triggers the payment of applicable SAG-AFTRA rates to talent. This article discusses some parameters as to what constitutes a commercial made for use on the Internet and contemplates whether the advertising industry is really better off lacking clarity on this issue coming out of the 2013 negotiations.

As a threshold matter, the SAG-AFTRA Commercials Contract defines “commercials” as “short advertising or commercial messages” that “depict or mention an advertiser’s name, product, or service.” The Internet-specific provision of that section deems such “advertising messages” to be commercials intended for use on the Internet, so long as they “would be treated as commercials if broadcast on television and . . . are capable of being used on television in the same form as on the Internet.”  

Contributing Author

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Howard R. Weingrad

Howard R. Weingrad is a partner in the Advertising, Marketing & Promotions at Davis & Gilbert. Mr. Weingrad is one of the country’s leading experts...

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