By: Adam Gertz & Leah Stevenson
February 7, 2024
The world’s largest on-screen/voice actor talent union unveiled its newest agreement today and it applies directly to independent game developers. SAG-AFTRA’s (“SAG”)’s Tiered-Budget Independent Interactive Media Agreement (“TBIIMA”) will cover games with production budgets ranging from $250,000 - $15 million and will replace the existing Low Budget Agreement, for interactive media that has been in use since 2016. The TBIIMA applies to voiceover and motion capture work, to also include dancers, singers and “on-camera” and“off-camera” performance.
The TBIIMA lives up to its name and presents a “tiered” system of applicability. These tiers are based on the underlying game’s “all-in” production budget, which consists of all of the expenses incurred in the creation and development of the game, save for marketing costs. The “Tiers” are as follows:
- Tier 1: $250,000 - < $1 million
- Tier 2: $1 million - < $5 million
- Tier 3: $5 million - $15 million
If the game’s production budget falls outside of this range, a developer will have to use another agreement and/or receive separate budget from SAG. Following completion of the game, developers will need to submit a final budget to SAG. If the budget falls outside of the original Tier, it is possible that SAG will reclassify the game.
How Will Performers Be Compensated?
Performer compensation is determined according to the Tiers. The current rate sheet for 2024 is available here. Note that these rates represent the MINIMUM required compensation and performers can freely negotiate a higher salary. Performers are entitled to day-rate compensation (based on the number of hours worked) as well as secondary compensation (based on the amount of units of the game sold). With respect to the day-rate, there can be additional fees required if the performance qualifies as “physically stressful” (excessive physical activity that poses risk of exhaustion or injury) or “vocally stressful” (can risk undue strain to performer’s voice, e.g., prolonged screaming).
Regarding the secondary compensation, it is important to note that this compensation is based on units sold, rather than sessions performed like in the standard SAG Interactive Agreement. This payment is due to ALL performers whose work makes it to the final game. For secondary compensation, performers receive a certain percentage of the minimum scale payments for every 500k units of the game sold. The percentage is based on the Tiers and appears in the rate sheet.
Lastly, as a signatory to the TBIIMA, developers must pay into the SAG health plan and retirement fund in an amount equal to 17% of the gross compensation due to each performer.
In addition to payment language, the TBIIMA requires that developers disclose certain information about the role prior to booking including, among other things, whether vocally or physically stressful work will be required, the length of the role, and whether sexual content, profanity, or racial slurs are in the script or otherwise required.
Like under other SAG agreements, Developers must use the SAG approved performer contract and integrate the terms identified in the TBIIMA in any further agreement with performers.
In short, the TBIIMA provides that the developer will own the results and proceeds of the performer’s services, including all copyrights. The developer has the right to exploit the performer’s services in other media, however the performer may be entitled to additional compensation and/or separate bargaining, pursuant to the applicable SAG agreement for such media. The developer will also have the right to use the performer’s name, image, and likeness, in connection with the promotion of the underlying game.
What About Digital Replicas and AI?
The TBIIMA permits the use of Digital Replicas, which are defined as “digital versions of an off-camera or on-camera performance that can be used to independently generate a performance that was not previously recorded by the performer.” To adhere to the TBIIMA, developers will be required to: (i) give clear and conspicuous written notice to performers; (ii) receive informed consent from the performers; (iii) disclose anticipated uses of Digital Replicas; (iv) pay the performer the proper compensation for on-camera, off-camera, or on and off camera combination performances as set forth in the TBIIMA; and (v) provide performers with Digital Replica Reports, which include a full description of the characters and lines depicted by the Digital Replica.
Additionally, the TBIIMA permits developers to use Generative Artificial Intelligence (“GAI”), artificial intelligence that learns patterns from data and produces content based on those patterns, such as ChatGPT4 and MidJourney. If developers anticipate the use of GAI, developers are required to: (i) inform SAG prior to the use of GAI; (ii) receive the performer’s consent; and (iii) bargain for the use of the GAI generated material at no less than scale minimum compensation.
Does the TBIIMA Apply to Your Game?
Like other SAG agreements, the TBIIMA will only apply to developers that are signatories thereto. To become a signatory, developers must submit an application to SAG where they describe the game, the proposed budget, production dates, and provide additional required information. Once a signatory, developers can only work with SAG membership and must abide by the terms and conditions of the TBIIMA (although certain terms can be waived by SAG under special circumstances). While smaller developers may have overlooked SAG in the past, as SAG delves further into digital and interactive entertainment, more and more performers will join their ranks, meaning that, by becoming a signatory, the talent pool available to developers could be significantly greater, provided they are able to comply with the numerous requirements.
As you can see, if you plan to use SAG talent in your next project, it is important to develop a comprehensive budget, timeline, and narrative plan so that you remain in compliance with the TBIIMA and any other SAG Agreements. Additionally, if your game includes digital replicas and/or creates characters from AI based on SAG performers, you should ensure that you have the proper compliance infrastructure in place such that you can communicate the necessary information and disclosures to your talent and track and record associated permissions and authorizations. Note that the information presented herein is not exhaustive. The TBIIMA contains provisions related to working conditions, payment obligations, usage rights, dispute resolution, and other terms. We encourage you to consult with a seasoned gaming or digital media attorney prior to becoming a signatory to the TBIIMA and entering into agreements with performers.