Industry & Advocacy News
January 17, 2024
After 118 days, the film and TV actors’ union (SAG-AFTRA) and the Alliance of Motion Picture and Television Producers (AMPTP) reached an understanding ending the first film and TV actors’ strike since 1980. Like the Writers Guild of America strike before it, AI was a major issue for the actors’ union, as well as the need to revise the models for residuals based on the increase in streaming platforms. SAG-AFTRA and the AMPTP came to terms on a new contract addressing these and other issues, including increased diversity efforts, expanded health benefits, and measures designed to combat sexual harassment. The new agreement was ratified on December 5, 2023, with 78 percent of the union’s members approving.
Recognizing that “we’re fighting for the survival of our profession,” the actors’ union viewed AI as a direct threat to the livelihoods of working performers that would likely replace human performances with other technology. Hollywood studios wanted to scan the image of background performers, pay them for half a day’s work, and then use that collected replica for any purpose (including the training of generative AI systems without the performer’s consent). The union pressed for a “comprehensive set of provisions to grant informed consent and fair compensation when a ‘digital replica’ is made, or a performance is changed using AI.”
The new agreement reached by SAG-AFTRA and AMPTP sought to strike a compromise, and it sets out the acceptable and prohibited uses of AI and generative-AI technology with respect to actors in the film and TV industry. It defined and created rules around two main types of “digital replica” categories: “Employment-Based Digital Replica” and “Independently Created Digital Replica”—both ways in which the performer can be digitally presented in scenes in which they were not actually filmed.
Definition:
An “Employment-Based Digital Replica” is a replica of the voice or likeness of the performer that is created in connection with their employment on a motion picture under the Agreement, by using digital technology with the performer’s physical participation, for the purpose of portraying the performer in photography or on a sound track in which the performer did not actually perform.
The use of this type of replica in the motion picture or TV show must be outlined in a “reasonably specific description” and the performer’s consent is not required if the photography or soundtrack remains substantially the same as previously scripted, performed, and/or recorded. Otherwise, consent must be clear and conspicuous and included in the employment contract or a separate document, such as in an endorsement or statement that is separately signed or initialed [by the performer]. The time spent creating the replica is to be considered part of the performer’s work time if on that same work day the performer performs other work for the producer; if done on another day, the performer may be entitled to additional compensation under terms provided in the agreement.
Notably, if the producer uses the replica outside of the motion picture for which the performer was employed, consent and separate bargaining is required. In addition, the consent survives the performer’s death, unless it’s otherwise noted. At that point, if consent is needed, consent can be given by an authorized representative of that performer or, if that fails, by someone from the union.
Importantly, the performer may be entitled to residuals for the use of their digital replica if it appears in the motion picture or TV show in a way that would have entitled the performer to receive residuals.
An “Independently Created Digital Replica” is a digitally-created asset that is intended to create, and does create, the clear impression that the asset is a natural performer whose voice and/or likeness is recognizable as the voice and/or likeness of an identifiable natural performer performing in the role of a character (and not as the natural performer himself/herself) and where there is no employment arrangement with the performer in the motion picture in which the Independently Created Digital Replica will be used in that role.
The Independently Created Digital Replica requires consent for services for its creation and bargaining before its use, which must be clear and conspicuous in a signed document that includes a “reasonably specific description” of the proposed use. Like the Employment-Based Digital Replica, the Independently Created Digital Replica’s consent and use survives the death of the performer, unless otherwise explicitly noted and likewise, if the performer is deceased, consent can be given by their authorized representative or someone from the union.
The Independently Created Digital Replica employs a “First Amendment Exception” to consent, in which a use may be permitted for “comment, criticism, scholarship, satire or parody, use in a docudrama, or historical or biographical work, to the extent protected by the First Amendment.” In addition, the Independently Created Digital Replica has other notable exceptions to consent with respect to post-production alterations, dubbing, and foreign language adjustments.
While the two forms of digital replicas differ in the areas of scope and the consent and compensation required, the bottom line is that SAG-AFTRA and AMPTP have agreed that digital replicas cannot be used to circumvent the use or engagement of background actors.
In addition to replicas, the new agreement controls some uses of Digital Alterations in which a performer’s performance is digitally altered. In some situations, the performer’s consent is required.
The agreement also discusses the use of “synthetic performers,” defined as digitally-created assets trained on, and artificially generated from, a combination of human actors (or performers) rather than the replicas that portray the individual human actors. Producers must notify the union of such uses and might be subject to bargaining and compensation.
This new contract begins to address the impact and potential disruption of how AI technologies will change the acting profession in Hollywood as it will society writ large. And, consequently, it highlights the need for each involved party to safeguard their rights. It specifically recognizes “the importance of human performance in motion pictures and the potential impact on employment.”
Recognizing the need for further developments, SAG-AFTRA negotiated an agreement to meet regularly with the AMPTP (on behalf of the producers) to discuss compensation for the use of any works used to train generative artificial intelligence and for semi-annual meetings between the union and producers related to the intended use of generative artificial intelligence, including the potential need to ensure that such uses are not used to reinforce or create bias. These meetings will be subject to non-disclosure agreements, however.
We will continue to monitor additional developments and continue to throw our support behind the efforts of SAG-AFTRA in maintaining the rights of human creators.
Note: This information was gleaned from the draft Memorandum of Understanding (MOU) and SAG’s summary document. The final MOU has yet to be issued.
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