The Crash Landing of AI Into the World of Screen and Television Performers

People who make a living in the Hollywood scripted production industry were elated to find out the Writer’s Guild of America had ended their contentious 148-day strike with an agreement that their membership had overwhelmingly ratified. We could look forward again to plan on being busy.

The agreement included guardrails for the use of AI and clarified attribution and how writers and studios would engage with AI on scripts. This follows guidelines published in March this year from the U.S. Copyright Office Registration Guidance: Works Containing Material Generated by Artificial Intelligence which defined the position that copyright is the domain of human-authored works. AI-generated elements can be contained in authored works but need to be declared when registering for copyright of the overall work, and wholly AI-generated elements on their own do not have copy protection.

As well, the board members of SAG-AFTRA (Screen Actor’s Guild-American Federation of Television and Radio Artists) who were also on strike, voted recently in favor of the deal they made with the studios a few weeks ago, the 2023 CBA and TVA (Codified Basic Agreement and Television Agreement). They too had to wrestle with new AI tools that are being used to extrapolate an actor’s performance and replicate their appearance, but the concerns appear to be far more esoteric.

Writer, Producer, Director, and former Actor Justine Bateman previously sat on the SAG-AFTRA national board, and this past year was the AI advisor to the negotiating committee. Shortly after the board voted to approve the deal, she sent out a series of posts on X (formerly Twitter), and appeared in several interviews, taking a starkly opposing position that actors should only vote to approve ‘if they don’t want to work anymore.’

Ms. Bateman listed a series of concerns about the use of AI intersectionality in post-production, including digital replicas, post-production adjusted physical placement of the actor in a shot; the use of digital replicas in sequels or other unrelated projects; the use of background actors in “tiling”/crowd duplication; codifying Fair Use in the agreement without compensation or consent i.e. parody; adjustment of appearance including lip and facial manipulation, gestures, vocal performance or change of language and dialog; and re-skinning an actor for face-replacement to localize an actor’s skin tone and facial features or modify their ethnic appearance.

As valid as these undertakings could be a concern in the extreme, much of what Ms. Bateman outlined has been routine in the craft of VFX (visual effects) for decades. If the SAG-AFTRA deal is ratified VFX supervisors and producers may have an added variable of performer consent approval to factor into the workflow and cost. It doesn’t appear there were consultations with the VFX community to help shape a more knowledgeable position for SAG-AFTRA to negotiate from. After all, from the actors’ perspective this isn’t about the use of AI imaging tools like Stable Diffusion versus compositing tools like DaVinci Resolve, in spite of Ms. Bateman invoking AI fears as a collective threat to the VFX community as well.

Commonly, a portion of the VFX shots on a theatrical feature are undertaken for cosmetic clean-up, for example, facial blemish/pimple removal, crew equipment removal, or a noticeable insect flying in front of the actor’s face. Where there would be clean up on these kinds of shots with some basic hand-crafted rotoscoping and texture replacement using compositing software, AI imaging tools could handle it with less menial intervention. These shots typically don’t require the director’s consent as they don’t inherently change the creative intent of the shot, but now would there potentially be the need for performer sign-off because some AI was involved? The threshold isn’t clear except for what common sense would prescribe.

At a higher level, given that generative AI can be trained on an actor’s likeness, behavior, and mannerisms to create a digital replica, how does that mesh with the U.S. Copyright Office guidelines which act on the premise that generative AI elements inherently don’t have copy protection?

And the bigger question, are audiences willing to forego the value of watching actors and stars portray roles and find wholly AI generated humans and narratives that have no property value compelling?

This past year saw a court challenge which delivered a ruling that upheld the A.I. copyright guidelines, stating there’s been a consistent understanding that human creativity is “at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.”

The open hostility we are seeing by some actors towards AI, or in some cases CGI in general, is a reflection of the unknown given how new AI imaging tools are, their rapid advancement and the contrived chasm that some actors are unknowingly depicting between arts and science. Despite the concerns, the 2023 CBA and TVA was ratified with a 78% majority from the SAG-AFTRA membership who voted in favor. It is highly unlikely the terms codified in the agreement will still be current by the time it expires on June 30, 2026 and would need to be revisited due to the accelerated pace of evolution.