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Breaches of exclusivity obligations can leave advertisers with little recourse

The 2013 Memorandum of Agreement attempted to provide a more concrete remedy, but holes remain

This, the final article in a series examining recent developments and ongoing issues related to the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) Commercials Contract, will discuss the potential recourse advertisers and their advertising agencies have when a performer breaches the exclusivity obligation he or she has under an agreement to perform scale commercial production services.

First, it’s important to note a distinction in contracting with scale performers versus overscale performers: When negotiating with scale performers, Section II(9)(B) of the SAG-AFTRA Commercials Contract stipulates that commercial producers cannot make changes, alterations, or additions to the Standard Employment Contract unless such modifications are more favorable to the performer than the Standard Employment Contract. Producers are, however, able to negotiate to include additional legal protections, such as a morals clause with a termination right and remedies for breach, and other remedies for a breach of the performer’s obligations (including breach of exclusivity, which will be the focus of this article), by negotiating and paying performers on an overscale basis.

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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