The right to control whether personal images can be recreated by artificial intelligence has become one of the key sticking points for members of Hollywood's actor unions in their negotiations with the studios.
The Screen Actors Guild from the American Federation of Television and Radio Artists announced last week it is joining the Writers Guild of America in its strike against Hollywood. While the strike is primarily focused on providing sufficient income and benefits to film employees, actors have also spoken out explicitly against the use of AI to replace or use their appearance in films.
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"AI is affecting the creative side of the industry," Tre Lovell, a California lawyer who has been involved in Hollywood celebrity cases, told the Washington Examiner. Lovell noted that the growing use of AI is "eliminating work" and theoretically eliminating the need for screenwriters.
The WGA requested no AI material be trained on WGA members' work and that the software be banned from being used to write or rewrite source material. The Alliance of Motion Picture and Television Producers, which represents studios negotiating with the actors and writers for their wages, denied the request and stated it would merely hold meetings with actors and union representatives to "discuss advancements in technology."
The most complicated aspect of what studios need to consider regarding AI primarily involves the use of a person's image in future projects.
Studios wanted to make digital scans of extras and actors and keep them forever to use in the background of future films in exchange for a single day of pay, SAG-AFTRA National Executive Director Duncan Crabtree-Ireland claimed at a press conference.
The AMPTP disputed Crabtree-Ireland's statement. The scan “only permits a company to use the digital replica of a background actor in the motion picture for which the background actor is employed," a spokesperson claimed. Any future uses of the image would require the actor's consent and minimum payment.
SAG-AFTRA has attempted to negotiate with AMPTP to resolve its interests in private meetings. The union released its rejected proposals on Tuesday after the attempted negotiations failed, including details about the proposed resolutions regarding AI. The actors union requested that movie studios "establish a comprehensive set of provisions to protect human-created work and require informed consent and fair compensation when a 'digital replica' is made of a performer, or when their voice, likeness, or performance will be substantially changed using AI."
At the core of the legal tension is the actor's "right of publicity," Rod Berman, chairman of Jeffer Mangels Butler and Mitchell's Intellectual Property Law Group, told the Washington Examiner. The right of publicity protects one's appearance in public forums and allows affected parties to sue others for the unauthorized use of one's appearance, including how one's appearance can be used after death.
The rights are inconsistent across the states, however. Only 35 states recognize the right of publicity, with each state handling matters such as a person's appearance post-mortem differently. This has created a patchwork of laws that enforce how a film uses one's appearance differently. For example, Washington state has an exemption for films to use one's appearance, while California does not.
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The Senate has hosted a hearing on the right of publicity in the last week due to the growing threat of AI, but no further motion on establishing a federal right of publicity has been taken since.
It remains unclear when the strikes may resolve as the WGA approaches its 11th week of protest. However, the decisions made by WGA, SAG-AFTRA, or other creative unions could influence the standard for how federal agencies handle copyright questions.