Jeremy Roberts, head of film & TV at UK legal firm Sheridans, lays out how the UK industry can learn from the SAG-AFTRA deal around generative AI and build on its foundations to become a global leader.
“If the last decade in film and TV was defined by the disruption of content distribution, the next decade will be defined by the disruption of content creation.”
That amazing statement from Doug Shapiro captures the predicted impact that generative AI, or GenAI, will have on the film and TV sector. It is something that has people excited and terrified in equal measure, and nowhere is that better seen than in the fight for actors’ rights.
The extent of the US studios’ rights to use generative AI technology in relation to an actor’s performance was one of the hardest-fought issues in the recent US actors’ strike, and the deal that was finally reached is being called both a great win for actors and a total sell-out at the same time.
That deal, between the US studios and the US actors’ guild SAG-AFTRA, includes the right to use an actor’s performance to create an AI-generated digital replica, or digital double, of that actor, subject to two key protections.
Firstly, the actor’s informed consent is needed unless the film or TV show remains substantially as scripted, performed and/or recorded following the incorporation of any AI-generated content featuring the actor’s digital replica.
Think about that for more than a second or two and you will realise that the word substantially is doing a lot of heavy lifting there. It is a subjective measure, and it will be argued and probably litigated over for years to come. But, perfect should not be the enemy of the good, and this seems like a sensible protection for actors.
There will be many amazing use-cases for GenAI, many of which have not even been thought of yet. Any attempt to legislate for future technology is a hostage to fortune, and my suggested approach is no different.
Secondly, the actor gets paid. Indeed, they get paid at their full contracted rate for any time the production saves by using the digital replica. That also seems like a solid win for actors and will be a heavy disincentive against overusing GenAI in place of an in-person actor.
Recently, the industry in the UK has been grappling with these issues too, but a consensus has seemed some way out of reach. We have some – thankfully, not many – at one extreme arguing that producers should be able to take an actor’s performance and do whatever they want with it, without payment.
At the other extreme, we are seeing some actors’ representatives insisting that no AI whatsoever can be used in respect of any actor’s performance.
Both are wrong, and as usual the answer lies somewhere in the middle.
The UK’s film and television sector leads the world in many ways, and it has an opportunity to lead here too by expanding on the US deal and adopting a strong but centrist approach – one that protects actors’ rights while allowing innovation and the use of new technology to create more and better UK content.
First, it should quickly adopt SAG-AFTRA’s fundamental tenet that producers must obtain the actor’s clear and informed consent for any use of GenAI in respect of that actor’s performance unless the film or TV show remains substantially as scripted, performed and/or recorded following the incorporation of any AI-generated content featuring the actor’s digital replica.
This framing is not perfect and will be open to debate, but a better one is hard to find.
It should then follow SAG-AFTRA’s lead and as a starting point use rights the producer already has. Producers should be able, at no extra cost, to use GenAI for things they can already do, and which cause no harm to the actors, such as:
- ADR – using GenAI to improve or create new recordings for the film or TV show based on the actor’s own voice and cadence
- Foreign language dubbing – using GenAI to dub an actor’s voice in a foreign language and/or synchronise lip movement. This will lead to much better foreign language content, better foreign sales, and therefore better residuals for the actors
- Doubling – using a digital replica of the actor for certain scenes, although clearly there need to be safeguards. For example, the actor’s clear and unambiguous consent must be obtained before creating any AI-generated nudity or sexual content
- Storyboarding, animatics, pre-visualization, B-roll, and VFX.
In addition, the producer should be able to:
- Use a digital replica of the identifiable actor in additional scenes that are more than just B-roll. Here, the UK should mirror the SAG-AFTRA terms, so the actor is paid the amount they would have received had the scene been shot with the actor present in person
- Complete the project if an actor dies or becomes incapacitated – the full fee should be payable as if the actor completed the project, but the producer would have the automatic right to use a digital replica to complete any remaining scenes or dialogue
- Use GenAI to replace an actor who has breached a so-called ‘moral turpitude’ clause
One of the principal concerns of the acting community is that producers will use actors’ performances to train generative AI models or to create non-identifiable ‘synthetic’ actors. There are better ways to do this than using actors’ performances within films or TV shows – and, from the actors’ perspective, it is almost impossible to police what content has been used to train a GenAI model – so this does not seem a hill worth either side dying on. I would suggest that producers leave out this right and put actors’ minds at rest.
The SAG-AFTRA deal includes an exception to the consent requirement when the digital replica is used for “comment, criticism, scholarship, satire or parody”. These are similar to fair use exceptions to copyright in both the US and the UK. Applying them here seems a reasonable centrist approach.
However, SAG-AFTRA terms also include an exception for “use in a docudrama, or historical or biographical work”. That seems open to abuse, and would need to be looked at very carefully by both sides before adopting in the UK.
Lastly, many other rights should be left to be dealt with on a case-by-case basis, if or when they are needed. Examples include using an actor’s digital replica:
- in sequels or subsequent seasons
- in computer games
- in bonus or marketing content, or
- to produce a non-broadcast pilot or teaser tape at a fraction of the current cost.
There will be many amazing use-cases for GenAI, many of which have not even been thought of yet. Any attempt to legislate for future technology is a hostage to fortune and my suggested approach is no different.
Not everyone will agree with every aspect of it, but I hope it shows that there is a sensible way forward – one that allows the UK to lead the world in using GenAI to create more and better content, while respecting the talent and dignity of its actors.
Jeremy is the head of the film & TV team at Sheridans.