Inside: Bargaining for artist consents to use pre-existing sound recordings and footage in commercials

The fifth in an ongoing series on the Screen Actors Guild – American Federation of Television and Radio Artists Commercials Contract

This is the fifth 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. This article will discuss Section 28 of the SAG-AFTRA Commercials Contract, which sets forth the requirement in certain instances to bargain with performers to obtain consent to use their performances in previously-produced sound recordings or footage made under the jurisdiction of the union.

When using pre-existing third-party content in advertising materials, such as a sound recording or piece of film or television footage, in addition to obtaining the necessary applicable copyright licenses, an advertiser or agency that is a signatory to the SAG-AFTRA Commercials Contract may be required to bargain with and pay union residuals to a performer whose performance is embodied in those materials. Section 28’s bargaining requirement applies to sound recordings and footage “made under the jurisdiction of the Union.” This has been recognized as meaning that the pre-existing sound recording or footage was made under the union contract applicable to the field in which the content was originally produced, e.g., the AFTRA Sound Recording Code for Sound Recordings, or the SAG-AFTRA Basic Film and Television Agreement.  

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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