The last of the Hollywood strikes formally came to a close on December 5, when the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA), the performers’ labor union, ratified its contract with Hollywood studios. As in the Writers’ Guild of America (WGA) strike that ended in October, studios’ growing use of generative AI was one of the final issues to be resolved in the SAG-AFTRA strike. There are key parallels between the nature of the generative AI concerns in the two strikes. In both strikes, union members feared that studios would effectively utilize generative AI to perform tasks that ordinarily would be performed by paid writers and actors.
In the SAG-AFTRA case, a crucial additional concern was the studios’ use of generative AI and other digital technologies to replicate performers’ faces and voices. Ultimately, the agreement that resolved the SAG-AFTRA strike (hereafter simply the “agreement”) contained detailed provisions governing the creation and use of both “Digital Replicas” of individual performers and entirely AI-generated “Synthetic Performers.”
A Digital Replica is exactly what it sounds like: a digitally created reproduction of a performer’s voice or likeness. The agreement identifies two types of digital replicas, which are treated differently under the contract:
- “Employment-based” digital replicas, where a studio captures the likeness of a performer in the course of shooting a movie or TV show “with the performer’s physical participation” but with the intent to use the replica to “portray the performer” in a scene or soundtrack “in which the performer did not actually perform.”
- “Independently created” digital replicas, which a studio creates from “existing materials” and uses to portray the performer in scenes they did not actually shoot.
For employment-based replicas, the performer has to provide explicit consent through either a separate contract or an “endorsement or statement in the performer’s employment contract that is separately signed or initialed by the performer.” The studio must present the contract to the performer at least 48 hours in advance of their likeness being captured, ensuring the performer has time to consider the proposal.
Moreover, the performer must provide separate consent for each additional movie or TV show where the replica is used. In other words, a studio cannot require (or even ask) performers to give them permanent rights to a digital replica. The studio must come back and separately bargain with the performer each time they want to reuse a replica of that performer. For each such (re)use of an employment-based replica, the studio must pay the performer at least the day performer rate, which varies based on the performance type and the project budget.
The rules for independently created replicas are somewhat looser. Because studios generally own the copyrights to the movies and TV shows that form the “existing materials” used to create independent replicas, there are no hard limits on studios’ ability to create such replicas. However, studios must still obtain separate consent each time they wish to use this type of replica. Unlike with employment-based replicas, there is no minimum pay amount. The compensation is a matter of bargaining between the performer and the studio.
The techniques used to create digital replicas are comparable to those used to create deepfakes – that is, AI is used to take a specific human performer’s likeness and project it into a scene where the performer never actually appeared. But advances in generative AI have created a new possibility: studios could replace human performers with completely artificial but human-appearing “Synthetic Performers.” For this, the contract requires producers to notify SAG-AFTRA and give the union “an opportunity to bargain in good faith over appropriate consideration, if any, if a Synthetic Performer is used in place of a performer who would have been engaged . . . in a human role.”
Will Replicas Survive This Agreement?
The contract provides performers far less protection from Synthetic Performers than it does from the creation and use of replicas. This may be because, unlike AI-created scripts, the phenomenon of studios using digital effects to create the appearance of human characters is far from new. As the agreement states, “It has long been the case that producers have used digital technologies to generate non-human characters without the services of” a human performer. Starting with the large battle scenes in Lord of the Rings, studios have used digital technology to create and animate characters in large crowds. As technology has advanced, the use of digital technology to create characters or alter their appearance has increased.
Consequently, studios are likely to argue that many, if not most, uses of Synthetic Performers fall outside the scope of bargaining, which is limited to situations where the studios otherwise would have used a human performer. Even in situations where studios acknowledge that human performers would otherwise have been used, the requirement that they bargain in good faith is far from a guarantee that the resulting negotiations will be fruitful for SAG-AFTRA and its members.
This may lead studios to prefer to use Synthetic Performers over digital replicas in situations where either digital creation would be suitable for a particular scene. That trend may accelerate further as generative AI continues to advance, giving studios a greater ability to create Synthetic Performers capable of filling more visible and complex roles. One could easily imagine, then, a scenario where digital replicas actually see less use over time, squeezed between human performers’ preference to perform roles themselves and studios’ incentives to use Synthetic Performers in situations where live human performance is not necessary.
Punting on Training Data
The agreement seemingly punts on an issue raised by actor/director Joseph Gordon-Levitt in an op-ed he wrote during the early days of the strike: studios’ use of actors’ existing performances not to create replicas of those actors, but rather as training data to enhance the capabilities of generative AI. Bear in mind that the face of a person who does not exist is not completely artificial. Rather, that face is constructed based on data gathered from countless real human faces. The same is true of Synthetic Performers: they are not made from scratch, but rather are patterned after the movements and voices of the human performers in the training data.
As Gordon-Levitt’s op-ed notes, studios hold the copyright for their movies and TV shows, including the performances therein. Absent an agreement to the contrary, then, studios could use their vast libraries of past performances as ingredients to create as many Synthetic Performers as they wish. The agreement does not limit their ability to do so; instead, and similar to the provisions regarding the use of Synthetic Performers, it merely requires the studios to “meet regularly during the term” of the agreement “to discuss appropriate remuneration, if any, with respect to photography and/or sound track recorded under these Agreements or any predecessor Agreement that is used to train a generative AI system for the purpose of creating Synthetic Performers.” But as long as the studios hold the copyrights, it’s not clear how much leverage SAG-AFTRA will have in those negotiations.
I’ll close this blog post with a prediction. This new SAG-AFTRA agreement expires in July 2026. If another strike happens then, whether (and how much) to pay performers “residuals” for the use of their past performances as training data for generative AI will be one of the core issues.