2023 will undoubtedly be remembered as the year when Generative Artificial Intelligence (GAI) invaded the productive world, shaking the foundations of artistic and creative fields. The advent of powerful software such as Chat GPT, Llama, and Bard for the massive creation of written content has sparked a heated debate in several industries, raising significant concerns that go far beyond the world of copywriters, illustrators, and cartoonists, also involving authors and screenwriters and the entire film industry as a whole.
In Europe, the EGAIR (European Guild For Artificial Intelligence Regulation) manifesto contributed to the debate on the regulation of Generative Artificial Intelligence (GAI) and laid the groundwork for the preliminary inclusion of some crucial issues within the European legal fabric outlined by the AI ACT.
I had the opportunity to publicly discuss the Manifesto with the Italian EGAIR representatives at Comicon last April in Naples, during a panel significantly called ‘Made by Human’.
In the United States, the absence of clear federal legislation in the field of Generative AI has created fertile ground for regulatory fragmentation. The directions to be followed have thus largely been determined by the decisions of the relevant offices, such as the U.S. Copyright Office, by the pronouncements of the Federal Courts, by the measures taken at the state level and by the agreements made between the parties concerned.
Against this backdrop of uncertainty, the search for an agreement between the SAG-AFTRA (Screen Actors Guild – American Federation of Television and Radio Artists) and American writers and screenwriters WGA (Writers Guild of America), which led to the momentous strike that began on May 2, 2023, acquires strategic importance.
As the actors’ union strike continues, the WGA has taken a crucial step in a different direction.
On September 25, 2023, the Writers Guild of America (WGA) signed a historic agreement with the AMPTP (Alliance of Motion Picture and Television Producers, Inc.), the association representing production companies and the entertainment industry. This memorandum (MBA), ratified on October 9, 2023, with the broad support of 99% of WGA members, will be in effect until May 1, 2026.
What makes it even more significant is the introduction, for the first time, of a chapter devoted to the use of Generative Artificial Intelligence, bringing a momentous innovation in the way content is created in the film industry.
Interests at Stake among Actors, Screenwriters, and Industry Bigwigs
The starting points that are the subject of the contrast are well known: as far as the interests of production companies are concerned, regardless of individual differences and their focus on the artistic aspect, these remain fundamentally economic in nature and profit-oriented. In an American film industry worth billions of dollars, the goal of achieving significant financial savings represents an ambitious possibility, potentially revolutionizing the entire production process.
Actors and voice actors, on the other hand, are faced with a prospect in which it already becomes plausible to reduce or even eliminate the use of voice actors, through voice cloning, and to make even green-screen filming unnecessary, thanks to the ability to synthesize and clone human faces and movements, while still not shooting basic scenes. Screenwriters, on the other hand, are faced with text generation models that, although less creative in the classical sense of the term, are considerably faster in processing content and, without wishing to think ill of it, also in elaborating and summarizing stories from which to take cues for reworking purposes.
One can, therefore, understand the scope of the interests at stake, considering the potential significant savings on aspects such as poses, scenes, framing, and dubbing, which, on the other hand, would somewhat hollow out the traditional cinematic concept that has characterized the seventh art throughout the twentieth century.
Thus, the fact that a basic agreement between the Writers Guild of America (WGA) and the Alliance of Motion Picture and Television Producers (AMPTP) has significant implications because it is the first major industry framework agreement that, in the current legislative ambiguity, is certainly an essential reference.
As part of that agreement, the WGA and the AMPTP agreed on several definitions and regulations regarding the use of Generative Artificial Intelligence (GAI) in projects covered by the MBA, i.e., projects in which a manufacturer hires a writer associated with the WGA to provide services. These provisions, included in Article 72 of the Memorandum, include the following:
Definition of Generative Artificial Intelligence (GAI)
The parties involved acknowledge the existence of different definitions of Generative Artificial Intelligence (GAI), but agree that it is a subcategory of artificial intelligence that generates content based on patterns learned from data, excluding from this computation “traditional AI” such as CGI and VFX. Such content includes written material, such as text, and can be generated through algorithmic approaches. Examples of GAI include ChatGPT, Llama, MidJourney, and Dall-E.
Generative Artificial Intelligence (GAI) Does Not Qualify as a “Writer”
The companies involved agree that neither traditional GAI nor GAI falls under the definition of “writer” or “professional writer” as defined in the MBA.
Since GAI does not represent human subjectivity, the material generated by GAI is not to be considered literary material for the purposes of MBA.
Provision and Use of the Material Produced by Generative AI
Film studios are allowed to provide screenwriters with written material generated by GAI, provided that such material has not been previously used and that the screenwriters are notified that it was generated by GAI.
In addition, and this is a relevant point from a financial point of view, it is stipulated that GAI material cannot be considered as assigned material for the purpose of determining screenwriters’ compensation, nor can it be used to exclude a screenwriter from being granted separate rights (separated rights) under U.S. law.
Screenwriters have the right to use Generative AI in the process of creating literary material, subject to the company’s approval. However, the company cannot impose the use of Generative AI as a condition of employment. Material created by screenwriters who choose to use Generative AI must be treated as literary material and not as AI-generated material.
Corporate Policies Regarding Generative AI
In the uncertainty associated with the recognition of copyright and the exercise of copyright, the Memorandum recognizes that companies have the power to set their own policies in relation to the use of Generative AI and to require that scriptwriters take them into account. They have, therefore, also the right to refuse the use of Generative AI by authors.
Reservations About Generative AI Training
All parties involved declare that they are aware that the legal environment in relation to the use of Generative AI is subject to uncertainty and continuous evolution, and therefore maintain appropriate reservations on all relevant issues, unless -it is detailed in the agreement- they are specifically addressed in Article 72 of the Memorandum. One of the exclusions concerns, for example, the right to prohibit the use of literary material for Generative AI training, the cause of current litigation between authors and models such as OpenAI.
Concluding Remarks
Given also the plebiscite reached in the ratification of the agreement, it becomes plausible to assume that the important milestones reached may form the basis for future key agreements or legislative initiatives to uniformly regulate the industry. At the same time, the position of the actors’ union SAG-AFTRA, to which the WGA has continued to express support and backing even after the agreement was signed, appears to be becoming increasingly precarious.
The recent case of Tom Hanks, whose face was cloned for an unauthorized advertisement, further highlights the concerns and challenges in the negotiations, the consequences of which could partially turn the film industry into a factory of licensed deep-fakes, with actors relegated to an increasingly subservient and marginal role.
Avv. Alfredo Esposito
