Writers, Actors, AI: The AI Centric Changes to the WGA and SAG Agreements

Delve into the new WGA and SAG contract provisions relating to AI. Scott Hervey and Jamie Lincenberg tackle the terms and changes in this installment of "The Briefing" by Weintraub Tobin. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott AI ended up being a bigger than expected part in the writers' and actors' strikes. What exactly are the new WGA and SAG contract provisions relating to AI? I'm Scott Hervey from Weintraub Tobin, and today, I'm joined by my colleague Jamie Lincenberg. We are going to talk about the AI terms and the 2023 changes to the WGA and SAG MBA on this installment of "The Briefing" by Weintraub Tobin. Jamie, welcome back to "The Briefing." Jamie Thanks. It's good to be back. Looking forward to getting into this topic with you. Scott Yeah. So, let's dive right in. So, let's first talk about the changes to the Writers Guild MBA related to AI. I think the most logical place to start is with how the WJ defines AI. So the term generative artificial intelligence, or let's call it GAI, because we don't have enough acronyms, let's call it GAI. And that generally refers to a subset of AI that produces content based upon learned patterns like Chat GPT, DALL-E, and Llama, and it does not include traditional AI technologies such as those used in computer-generated imagery like CGI and visual effects. Jamie Scott, the WGA terms say that GAI cannot be a writer or professional writer as defined in the MBA because it's not a person, and therefore, materials produced by GAI should not be considered literary material under any MBA. This is important because the fact that GAI output can't be considered literary material has a direct impact on a writer's credit and compensation. Scott Yeah, that's right. While a producer can provide a writer with GAI output and instruct the writer to use it as the basis for writing a story or a script, that GAI output cannot be considered assigned or source material for the purpose of determining compensation or writing credit, and it can't be used to disqualify a writer from that writer's eligibility for separated rights. Jamie While writers can use GAI in the process of preparing literary material, for example, a screenplay with consent of the company, a company may not require that a writer do so as a condition of employment. Material created by writers who elect to use GAI should be considered literary material as opposed to material produced by GAI. Scott That's right, but given the issues surrounding the protectability of GAI output and the requirements that must be satisfied when registering a work that includes GAI output with a copyright office, it's not clear to me why a producer would want a writer to incorporate GAI output into any literary material. The WGA terms do acknowledge that producers can establish their own policies with respect to the use of GAI that writers will be required to adhere to, and companies can reject the use of GAI, including when that use could threaten the copyrightability or the exploitation of the work. Jamie We should also talk about the 2023 changes to the SAG Basic Agreement related to AI. Those revisions seem to be a bit more involved. Scott Yeah, they are. I would agree with you there. So, the 2023 changes in the SAG Basic Agreement, they really address three different types of digital replicas. The first is an employment-based digital replica. The second is an independently created digital replica. And then the third is called a synthetic performer. Jamie Let's talk about the employment-based digital replica first. Scott Sure, let's do that. So, an employment-based digital replica is a replica of the voice or likeness of the performer that is created in connection with the employment, performer's employment on a motion picture. And note that this can be both the program for which the performer was employed and a program other than which the performer was employed.