Commercial Conflicts Explained
Competing products conflict with each other.
If you have auditioned for a commercial, there’s a good chance you’ve heard the term “conflict” or its loftier sounding counterpart “exclusivity,” but you may not fully understand what it means. On the most basic level it means you cannot appear in two commercials advertising competing products at the same time. The products conflict with each other. For example, if you are already in a spot for Bank of America, you can’t also be in a spot for Citi Bank... unless the Citi Bank commercial is holding credit cards as their chosen area of exclusivity and Bank of America is holding banks. Ok, it can get complicated, especially depending on whether the project is union or non-union and how the conflict category is defined.
For union commercials – that is commercials going on a SAG-AFTRA Commercials Contract – the rules are clear, but there are still variations depending on the intended use of the commercial, like whether it’s going to be on broadcast TV or only on the internet. For broadcast spots, the advertiser automatically gets one area of exclusivity with the session fee for the shoot day, and that conflict lasts 13 weeks from the shoot day. That means even if the spot never airs, the actor cannot do another competing commercial in that time period because the session fee counts as the first holding fee. In other words, the advertiser pays to hold the actor to the conflict.
If the advertiser chooses to continue holding the conflict, they must pay a holding fee equivalent to another session fee for every 13-week cycle for as long as the spot is running. On SAG-AFTRA commercials, the maximum period a commercial can be used without renegotiating is 21 months. If the advertiser wants to continue using the spot beyond the 21-month maximum period of use, the actor has the right to negotiate for more money. If the advertiser decides not to continue running the spot after that period, the actor is released from the conflict and is free to go out for competing commercials. But don’t assume you are released until you receive a written notice from the advertiser saying you are. I’ve run into situations where the actor thought they were released from a conflict and auditioned for a competing commercial only to find out the advertiser just dragged their feet sending the renewal notice.
On SAG-AFTRA spots made for digital use, like internet or new media, the rules are similar, but the one major difference is that the advertiser must declare their intent to hold a conflict and pay holding fees. They do not automatically get exclusivity for digital use, so if they do not pay holding fees, then the actor is free to audition for competing commercials. Sort of. The caveat is that the competing spot cannnot hold a conflict either. You can see how this situation gets tricky. Odds are that if you do find yourself in this situation, you have a commercial agent who can help you navigate safe passage through the rocky narrows of the straits of exclusivity.
If an advertiser wants to hold the actor to more than one area of exclusivity, they must pay session, holding, and use fees of 150% to hold two or three conflicts and 200% to hold four or more conflicts. Referring to my earlier example of Bank of America and Citi Bank, Bank of America could pay 150% session and use fees to hold both banks and credit cards, taking an actor out of the running for a Citi Bank commercial holding credit cards.
Murky as those rules may seem, as I mentioned earlier, exclusivity on SAG-AFTRA jobs is clearer than on non-union jobs. In a lot of ways non-union jobs are still a lot like the Wild West. Advertisers and production companies are free to structure the deals however they want. Fifteen years ago when non-union commercials were not as prevalent, it was very rare for an advertiser to try to hold exclusivity. That ship sailed long ago, however, as more advertisers decided to go non-union so they could have their cake and eat it, too. It’s not uncommon to see non-union commercials holding multiple areas of exclusivity for multiple years with automatic renewals built into the contract. Just be sure to read everything carefully and discuss the implications with your agent (if you have one).