May 21, 2025 • 23 mins
In this episode, lawyer Richard Hoeg discusses the controversy surrounding Darth Vader's AI-generated voice in Fortnite and the resulting legal actions by SAG AFTRA. He discusses the implications of AI replacing human performers and SAG AFTRA's stance on the matter. The episode includes an analysis of the National Labor Relations Act, licensing issues, and the legal distinctions between filing charges and lawsuits. Hoeg also explores potential outcomes of the NLRB's findings on the complaint and the future of AI in voice acting contracts. The episode concludes with closing remarks and a call for listener feedback.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:14):
Hello, and welcome to another episode ofvirtual legality.
I'm your host, Richard Hoag, managing member ofthe Hoag Law Business Law Firm of Northville,
Michigan, and I am so excited to be back withyou for this episode talking about just a few
of my favorite things.
We've got star wars, epic games, Fortnite,union activity, statute reading.
(00:34):
The list is full.
But if any of that sounds interesting to you,please stick with us because we've got a great
episode today.
So starting out with, it's been an interestingweek for the Star Wars character, Darth Vader.
As Fortnite through Epic Games announced just afew days ago, this will be a day long
remembered.
Speak with Darth Vader in Fortnite.
(00:56):
Strategize with the ultimate sith lord withyour voice, and he'll respond back using
conversational AI.
We're honored to feature the voice of the lateJames Earl Jones, and we thank his estate for
the opportunity to make this happen forplayers.
James Earl felt that the voice of Darth Vaderwas inseparable from the story of Star Wars,
and he always wanted fans of all ages tocontinue to experience it.
(01:19):
We hope that this collaboration with Fortnitewill allow both longtime fans of Darth Vader
and newer generations to share in the enjoymentof this iconic character, said the family of
James Earl Jones or the estate of James EarlJones that would have held the rights to his
voice and likeness and other things about himafter his death.
But that's not the end of this story, becauseas with everything else in the world of
(01:43):
generative AI, we've got misuse, overuse,illegal use to talk about.
So as this went out on Fortnite, we had storieslike this one.
AI voice Darth Vader can swear, say skippitytoilet, and I apologize if I pronounced that
wrong, everybody, in Fortnite, how to find it.
(02:03):
And, yes, people were having Darth Vader dothings like dropping the f bomb, talking about
skippity toilet, and his thoughts on breastsaccording to this particular article, as is the
nature of the Internet and getting computer andAI to do things that you wanted to do.
Of course, that's not what Epic would havewanted.
That's not what the estate of James Earl Joneswould have wanted.
(02:24):
So immediately after these kinds of videos andthese articles go up, Fortnite responds and
says, we've pushed a hotfix immediately, andthis shouldn't happen again.
But that was just the start of the James EarlJones, Darth Vader discussion within Fortnite.
Because shortly thereafter, a a link went upthat said that SAG AFTRA, the union that
(02:45):
represents voice actors as well as videoactors, files a lawsuit over the Fortnite Darth
Vader AI voice.
Now this particular image on your screen rightnow is at least a little bit inaccurate.
There is no lawsuit here, but I'm not blamingIGN for that because if we look at their actual
article, it doesn't call this a lawsuit.
We'll get to that in just a minute.
(03:05):
Before we do, though, I wanna point out thatvideos like this one on this channel are
supported by people like you listening inpodcast form, watching on YouTube through
Patreon, memberships, super chats, everywhereelse where you can hit buttons, and otherwise
show your support for commentary like this.
If you're interested in this topic, if youthink I do a good job, please do consider
(03:26):
supporting us at Patreon or elsewise.
I really, really appreciate it.
Now as IGN said, voice actor union files unfairlabor practice charge over Fortnite's AR Darth
Vader, which gets collapsed on Twitter andsocial media into lawsuit.
That's a fair kind of compromise, I think, forsocial media.
(03:47):
I don't like it because I'm a lawyer, and I'mvery specific about the words that I use.
But in order to communicate that there is alegal filing made, I think lawsuit is okay.
And I do note here that Rebecca Valentine, theauthor of this article, does not make that same
mistake.
So the IGN social media team is doing someeditorializing even of the editorializing that
is already present in this article and thisheadline, and sometimes those things happen.
(04:11):
So it's an incorrect headline in that tweetthat we just talked about, but it's an
acceptable headline here where they say theyfiled an unfair labor practice.
But what does that mean in practice?
Let's take a look at the article.
The Screen Actors Guild, American Federation ofTelevision and Radio Artists, SAG AFTRA, is
filing an unfair labor practice charge with theNational Labor Relations Board against Epic
(04:32):
Games after the company implemented an AIvoiced Darth Vader NPC in Fortnite last week.
The complaint, which can be viewed here, andyou better believe we're gonna look at that in
just a second, alleges that over the last sixmonths, Llama Productions, owned by Epic Games,
has failed to bargain in good faith with SAGAFTRA's video game actors and has made
unilateral changes to terms and conditions ofemployment without providing notice to the
(04:55):
union or the opportunity to bargain byutilizing AI generated voices to replace
bargaining unit work on Fortnite.
Now if you're hearing that and saying, well,who is even impact who are these who is the
employee we're talking about?
What do you mean you didn't bargain with thedeceased James Earl Jones?
Presumably, you did negotiate a contract withthe estate.
The estate seems all on board with this use.
(05:16):
So what are you talking about SAG AFTRA?
And that's immediately what I thought when Iread this news article, when I saw this
proliferating around the Internet, because it'snot immediately obvious what interest SAG AFTRA
has in the estate of James Earl Jones licensingout his likeness and his voice to a party like
Epic Games and Fortnite, except for theobvious, which is to say that generative AI and
(05:39):
these kinds of licenses can put actors out ofwork.
Right?
It is certainly the truth that new technology,including generative AI, can say, okay.
We can do this with just voice snippets.
We can do this recordings.
James Earl Jones obviously has a lot of them inStar Wars and outside of it.
And so actors right now that are represented bySAG AFTRA can look at this and say, well,
(06:01):
that's gonna put us out of work.
Maybe we should do something about it.
It's an understandable position for the union.
It's an understandable position for the actors.
It's maybe not as understandable a positionfrom a legal framework perspective.
So hold on to that thought as we dive a littlebit further in.
However, continues IGN, the use of AI voices atall by Epic Games presents a major issue for
(06:22):
SAG AFTRA given its efforts to come to anagreement on a contract for its video game
performers over the last year.
The video game performing members of the unionhave been on strike for around ten months now.
The strike was started specifically due to alack of agreement on AI provisions even as 24
out of 25 other contract proposals had beenaffirmed by both sides.
Yeah.
(06:42):
There's a sticking point over AI.
It's really no surprise that this lands mostheavily on video games because video game
companies are, at their base, tech companiesand are more likely to adopt high end early
stage tech than maybe other aspects of the SAGAFTRA adjacent movie making process.
Earlier this year, SAG AFTRA publicly shared abreakdown of the portions of the contract still
(07:05):
disagreed upon by both sides.
We'll take a look at that in just a second aswell, expressing that it was still
frustratingly far apart on the provisions.
In light of this, SAG AFTRA has issued astatement explaining its unfair labor practice
charge against Epic that might be a little bitstrong.
I'm not sure this actually explains everything.
Essentially claiming that Epic's use of AI wasundermining the work of human SAG AFTRA members
(07:27):
who have previously or could potentially dowork of matching Darth Vader's voice with their
own performances.
Here's the statement in full.
We celebrate the right of our members and theirestates to control the use of their digital
replicas and welcome the use of newtechnologies to allow new generations to share
in the enjoyment of those legacies and renownedroles.
I'm not sure they're actually celebrating thatwith this action, but hey.
(07:50):
However, we must protect our right to bargainterms and conditions around uses of voice that
replace that work of our members, includingthose who previously did the work of matching
Darth Vader's iconic rhythm and tone in videogames.
Fortnite's signatory company, LlamaProductions, chose to replace the work of human
performers with AI technology.
Unfortunately, they did so without providingany notice of their intent to do this, and I've
(08:12):
highlighted that particular statement becauseit's entirely unclear what legal obligation a
company should have to the union to notify themthat they're going to do something that
essentially eliminates their need to useactors.
Right?
If you were a video game company and you wereplanning on using SAG after actors to tape
vocal performances of your role playing game orany other game that you were making, and then
(08:34):
you decide not to do that, that you're justgonna use text or even text to speech, at this
point in time because you think it works betterfor your game, do you owe a notice to SAG after
that you're no longer gonna use their actors?
That's not usually how we think about labor orlabor strikes or just labor unions in general.
If you're not using that labor, you don't haveto tell them you're not using it anymore.
(08:55):
Your obligation is to bargain with them overthe terms around which you do use the labor
that is a part of their union.
So it's understandable why they're upset aboutthis.
It's not as easily understandable why theywould have a legal claim in this particular
context.
With the charge filed, the next step will be areview by the NLRB, the National Labor
Relations Board, potentially followed by aninvestigation and hearing if the agency
(09:19):
believes the charge has merit or dismissal ifthe NLRB believes it does not.
So, yes, just like we saw with respect to theCalifornia statements against epic against
Activision.
Apologies, epic.
That one isn't on you.
But just like we saw in that case, just like wesaw with respect to Blake Lively and Justin
Baldoni and the charging documents made withrespect to California in that particular
(09:42):
instance, This is a process by which a privateparty tells a government organization that they
think there's something wrong.
The government organization then evaluatesthat, decides whether or not it wants to pursue
something independently, whether it wants tomake a private right of action for the union or
someone else to bring a case in that particularinstance, it is not as it stands right now, a
(10:06):
lawsuit.
But, again, that's the social media team at IGNshortening things for headlines that can fit in
the character limits of Twitter.
I'm at least somewhat sympathetic to thatposition even if, as a lawyer who tries to be
very precise with his wording, I don't reallylove it.
In the event that it is determined Epic Gameshas committed an unfair labor practice, the
NLRB can force it to remedy the situation invarious ways.
(10:27):
Totally true.
Such as potentially hiring an actor to record avoice for Darth Vader or removing him from the
game entirely or some other penalty.
Yes.
The first listings here of forcing them to hirean actor or remove him from the game entirely,
those would be considered specific performanceremedies under the law.
Those are forcing somebody to do something ornot do something, not use your Darth Vader
(10:48):
generative AI.
Those are less likely to be used by the NLRBthan what is listed here as some other penalty,
which is monetary damages, something alongthose lines.
But, again, I have certain questions as towhether or not this is even an unfair labor
practice as presented here, and it's a verynovel question.
Generative AI is obviously very new.
(11:08):
We haven't seen a charge like this made, soit's entirely impossible to with 100% guarantee
how the board might reply to a situation likethis.
I can only express for you in this video that Ithink it is perhaps a stretch, a reach of the
use of the statute, and I will ask you thequestion as we end this video so that you can
(11:29):
leave comments to it in terms of what you thinkshould happen in a case like this one.
But it's a very unusual circumstance, and Iwanted to highlight it all for you because we
haven't seen it in virtual reality before, andthat always makes it interesting to me.
So let's take a look at what they actually saidhappened here in their charging document, which
you can clearly see is not a lawsuit.
There's a lot more information in a lawsuit.
(11:50):
We've read them for hours and hours and hourson this channel, and I'm sure you've seen them
online.
But this is a charging document against LlamaProductions, a subsidiary of Epic Games by SAG
AFTRA, and it says the above named employer,Epic for this purpose, has violated the
National Labor Relations Act by committingunfair labor practices within the meanings of
(12:10):
section eight a subsection one and subsectionfive.
So we'll have to take a look at some statutesas well.
Within the past six months, the employer by itsagents and representatives failed and refused
to bargain in good faith with the union bymaking unilateral changes to terms and
conditions of employment.
Right?
The National Labor Relations Act is onlyconcerned with employment, but that raises
(12:30):
another question, which is to say, is licensingout your vocal clips, even your visual
likeness, is that a term and condition ofemployment for legal purposes?
You're not employing anyone here.
You're transferring intellectual propertyrights, likeness rights.
So that all already appears to be at leastsomewhat contentious of a point here, but we do
(12:52):
understand that what SAG AFTRA is reallygetting at is that by using these licensed
intellectual property bits, you are essentiallyeliminating the need to negotiate with these
other people that we represent currently.
And is that something that SAG AFTRA shouldhave legal recourse to defend?
But that's what they're saying here.
I also wanna point out that when they talkabout what they're fighting over with respect
(13:15):
to AI, they are very far apart.
They've highlighted a number of contractprovisions that they have issues with here, but
one that they don't is that the currentcontract that they've agreed to that doesn't
have any red lines or blue lines or anythingelse as part of their statements includes a
term that says, in the event the principalperformer is deceased at the time the employer
(13:35):
seeks any required consent, the employer shallobtain the consent of the authorized
representative who represents the deceasedprincipal performer's exclusive rights as
determined by applicable law.
So when we talk about consent, one of thethings they're fighting over is what do you get
when you get the vocal clips that you'veotherwise bought when you sign an actor to
perform motion capture or otherwise in yourvideo game?
(13:56):
Can you take those clips, everything thatyou've made that you're putting directly into
your cut scenes, and generate new stuff in thefuture?
That's the big fight that they're having rightnow, and they talk about this in respective
estates, and that's applicable to James EarlJones in this particular case, and say, yes,
you need to go get consent.
But as long as you have that consent, you canuse it for all the other reasons that we might
otherwise negotiate.
(14:17):
Now it's important to note, this contract isnot yet final.
The reason that this is highlighted for you inthe terms of a breakdown document as provided
by SAG AFTRA is because the sides have notagreed on all of this.
But I'm pointing it out here because this islanguage that is not otherwise seemingly
controversial either on SAG's part or theemployer's part.
And so it is a common notion that if you go andget consent from a deceased party's estate,
(14:41):
you're gonna be able to use it for the reasonsthat an actor would otherwise be able to sign
up for the same thing.
And that makes total sense.
That's what you would expect.
You want under the law for people to have theauthority to license out things like their
vocal and identity performances.
But then we get a little bit lower, and we seewhere SAG AFTRA is really, really concerned.
(15:02):
The parties acknowledge the importance of humanperformance in interactive programs and the
potential impact on employment under thisagreement when a generative AI system is used
in lieu of performers to generate material foruse in interactive programs that would
otherwise be performed by those performers.
Now that's just a recital kind of paragraph.
There's no argument here between the two sides.
(15:22):
They're just including it so that we know wherewe are in the contract because they're not
sharing the whole contract with us in thisdocument.
But it's important because it's clear that SAGAFTRA is really concerned about this almost
negative effect of generative AI.
Not really as concerned about making sure thatthe generative AI licenses are what they would
want them to be because that's not really anemployee employer relationship, but more on the
(15:47):
effect that even entering into those licensesat all has on their ability to place performers
that are currently in their union with theseparticular bodies.
So it's a controversial, complicated positionthat SAG AFTRA has to take here.
And then by the time you're getting intocomplaints that LAMA and EPIC have violated
(16:08):
their National Labor Relations Act, you can seewhy they're doing it even when it doesn't
necessarily make a bunch of logical sense.
So that's that's the contract breakdown, and itsays at the bottom here that because generative
AI is so new, the parties agree that thediscussion in the future will include topics
such as how to enforce anything that we'retalking about here because we don't even know
(16:28):
what this looks like tomorrow, let alone nextyear.
It's a very difficult negotiation for basicallyeverybody in the creative pursuits to enter
into right now.
SAG AFTRA seems to be taking a more aggressivestance than other unions that have otherwise
agreed to various parts of this, and certainlythe video game portion of SAG AFTRA seems to be
(16:48):
the most aggressive.
Your minds can vary on whether or not that's agood or bad thing.
I do think this is the kind of thing that theunion should be interested in.
I'm not sure that makes what EPIC has done herea violation of the name National Labor
Relations Act.
So in order to make that statement, let's takea look at what that act actually says, and in
particular, the sections that SAG AFTRA saysare being violated by EPIC.
(17:12):
So it shall be an unfair labor practice for anemployer to restrain employees in the exercise
of the rights guaranteed in section one fiveseven of this title.
That's subsection one.
They say this is being violated.
And then in subsection five, to refuse tobargain collectively with the representatives
of the employer's employees subject to theprovisions of section one five nine a of this
(17:33):
title.
So SAG AFTRA says, you're restraining employeesin the exercise of their rights, and you are
refusing to bargain collectively with therepresentatives of a union, for this particular
business model.
And so we're assuming for purposes of thisconversation that SAG After actually is a
proper union to be forced to collectivelybargain with on the part of Fortnite and Epic.
(17:56):
I think that's a fair assumption.
It would obviously be even worse for thisparticular story if SAG AFTRA has nothing to do
with the actors that otherwise portray peoplein Fortnite, but we'll assume it for this
purpose.
And the real question is, can they say thatjust agreeing to a license of rights with the
estate of James Earl Jones is interfering,restraining, or coercing employees in the
(18:18):
exercise of their rights currently, and is itrefusing to collectively bargain with those
that are otherwise represented by SAG AFTRA?
And I would offer a couple of points here.
One, the unions always ignore this little pieceof the collective bargaining section of the
National Labor Relations Act, but this isimportant for this particular question.
Employees shall have the right to selforganization to form, join, or assist labor
(18:42):
organizations to bargain collectively throughtheir representatives of their own choosing and
to engage in other concerted activities for thepurposes of collective bargaining.
They have the right to unionize or other mutualaid or protection, and and this and is
important, shall also have the right to refrainfrom any or all of such activities except to
the extent that such right may be affected byan agreement requiring membership in the labor
(19:04):
organization as a condition of employment.
Now James Earl Jones, as a deceased person, isnot presently being employed by Epic Games.
What has happened is his estate has licensedout his likeness rights.
So this isn't really a condition of employmentkind of concept in this particular instance,
And it's important to note that even if itwere, if James Earl Jones himself were alive
(19:26):
and decided to license out his likeness in thisway, he has the right to refrain from joining
in with the union activities.
So SAG comes in, and they say you've refused tobargain with us over the terms of the AI
license that you've entered into with a thirdparty here, the estate of James Earl Jones.
And so that's a violation of this section, butit looks to me like it's probably a closer
(19:47):
question as to whether or not SAG is violatingthis section by essentially saying, well, any
estate that wants to license out intellectualproperty that could otherwise put one of our
actors out of work has to be deemed a member ofour union, has to be working with us to
collectively bargain the terms of that AIlicense and cannot otherwise enter into an
agreement on its own behalf, which cannotpossibly be the case under this provision of
(20:09):
the law.
And so it does appear to me like SAG AFTRA isperhaps reaching a bit too far even though they
definitely have an interest in trying tomaintain as many jobs for their members as
possible.
Continuing on, the other aspect that I wantedto highlight is that representatives designated
or selected for the purpose of collectivebargaining by the majority of the employees
shall be the exclusive representatives of allthe employees in such unit, and that any
(20:33):
individual employee or a group of employeesshall have the right at any time to present
grievances to their employer and to have suchgrievances adjusted without the intervention of
the bargaining representatives.
Said another way, given employees, even ifrepresented by the union, can go and solve
problems on their own as long as the adjustmentis not inconsistent with the terms of a
collective bargaining contract or agreement.
(20:54):
And as we've already talked about, the AIportion of the agreement is not yet settled.
So it's entirely unclear what notice Epic orLAMA should have to give SAG after when they
enter into this contract.
They haven't agreed to give any at this pointin time.
And so is this a violation of the NationalLabor Relations Act?
I certainly have my doubts on that even whileacknowledging with sympathy that obviously a
(21:17):
lot of people in a lot of jobs are going to bedisplaced by the work, by the abilities of
generative AI in the very near future, and itis obviously very interested by the union that
that not happen to the people that are it'srepresenting.
So I understand all of that, and yet the lawdoes not seem to cover what they are concerned
(21:37):
with in this particular instance.
That being said, that's virtually Galaty fortoday.
Again, if you like this kind of analysis andcommentary on video games, pop culture,
business, and law, please consider supportingthe channel on Patreon or through memberships
and super chats when we do livestreams, orotherwise just telling people that we're having
these conversations.
Every little bit helps, and I am so, soappreciative.
(21:57):
Now what do you think about this topic?
Do you think James Earl Jones should have theability to license out his rights or his estate
to license out his rights to places like Epic?
Should Epic have to go through SAG AFTRA tonegotiate the terms of that AI license?
Maybe you're just sympathetic to the actors inthis particular circumstance.
I certainly wouldn't blame you for that.
(22:17):
And you think that SAG AFTRA is the best, mostpowerful place to actually force these
companies to agree to reasonable terms.
But maybe you think, hey.
If my family member just died and they can helpsupport their family even in absentia after the
fact, they would want this to be done, and Iwanna enter into contracts like this.
As they said in the original article, that hewas the voice of Star Wars, and he wanted to be
(22:41):
a part of Star Wars now and into the future.
And so you are recognizing and honoring thelegacy of your family member in that particular
instance.
I can see both sides of this.
As we say a lot here, reasonable minds candiffer, but I'm very interested in your
opinion.
So please do let me know, and thank you forjoining me on another Virtual Legality.
Virtual Legality is a YouTube video series withaudio podcast versions presented as commentary
(23:06):
and for education and entertainment purposesonly.
It does not constitute legal advice and doesnot create an attorney client relationship.
If you have legal questions about the topicsdiscussed, please consult your own legal
counsel.
Hello, and welcome to another episode ofvirtual legality.
I'm your host, Richard Hoag, managing member ofthe Hoag Law Business Law Firm of Northville,
Michigan, and I am so excited to be back withyou for this episode talking about just a few
of my favorite things.
We've got star wars, epic games, Fortnite,union activity, statute reading.
(00:34):
The list is full.
But if any of that sounds interesting to you,please stick with us because we've got a great
episode today.
So starting out with, it's been an interestingweek for the Star Wars character, Darth Vader.
As Fortnite through Epic Games announced just afew days ago, this will be a day long
remembered.
Speak with Darth Vader in Fortnite.
(00:56):
Strategize with the ultimate sith lord withyour voice, and he'll respond back using
conversational AI.
We're honored to feature the voice of the lateJames Earl Jones, and we thank his estate for
the opportunity to make this happen forplayers.
James Earl felt that the voice of Darth Vaderwas inseparable from the story of Star Wars,
and he always wanted fans of all ages tocontinue to experience it.
(01:19):
We hope that this collaboration with Fortnitewill allow both longtime fans of Darth Vader
and newer generations to share in the enjoymentof this iconic character, said the family of
James Earl Jones or the estate of James EarlJones that would have held the rights to his
voice and likeness and other things about himafter his death.
But that's not the end of this story, becauseas with everything else in the world of
(01:43):
generative AI, we've got misuse, overuse,illegal use to talk about.
So as this went out on Fortnite, we had storieslike this one.
AI voice Darth Vader can swear, say skippitytoilet, and I apologize if I pronounced that
wrong, everybody, in Fortnite, how to find it.
(02:03):
And, yes, people were having Darth Vader dothings like dropping the f bomb, talking about
skippity toilet, and his thoughts on breastsaccording to this particular article, as is the
nature of the Internet and getting computer andAI to do things that you wanted to do.
Of course, that's not what Epic would havewanted.
That's not what the estate of James Earl Joneswould have wanted.
(02:24):
So immediately after these kinds of videos andthese articles go up, Fortnite responds and
says, we've pushed a hotfix immediately, andthis shouldn't happen again.
But that was just the start of the James EarlJones, Darth Vader discussion within Fortnite.
Because shortly thereafter, a a link went upthat said that SAG AFTRA, the union that
(02:45):
represents voice actors as well as videoactors, files a lawsuit over the Fortnite Darth
Vader AI voice.
Now this particular image on your screen rightnow is at least a little bit inaccurate.
There is no lawsuit here, but I'm not blamingIGN for that because if we look at their actual
article, it doesn't call this a lawsuit.
We'll get to that in just a minute.
(03:05):
Before we do, though, I wanna point out thatvideos like this one on this channel are
supported by people like you listening inpodcast form, watching on YouTube through
Patreon, memberships, super chats, everywhereelse where you can hit buttons, and otherwise
show your support for commentary like this.
If you're interested in this topic, if youthink I do a good job, please do consider
(03:26):
supporting us at Patreon or elsewise.
I really, really appreciate it.
Now as IGN said, voice actor union files unfairlabor practice charge over Fortnite's AR Darth
Vader, which gets collapsed on Twitter andsocial media into lawsuit.
That's a fair kind of compromise, I think, forsocial media.
(03:47):
I don't like it because I'm a lawyer, and I'mvery specific about the words that I use.
But in order to communicate that there is alegal filing made, I think lawsuit is okay.
And I do note here that Rebecca Valentine, theauthor of this article, does not make that same
mistake.
So the IGN social media team is doing someeditorializing even of the editorializing that
is already present in this article and thisheadline, and sometimes those things happen.
(04:11):
So it's an incorrect headline in that tweetthat we just talked about, but it's an
acceptable headline here where they say theyfiled an unfair labor practice.
But what does that mean in practice?
Let's take a look at the article.
The Screen Actors Guild, American Federation ofTelevision and Radio Artists, SAG AFTRA, is
filing an unfair labor practice charge with theNational Labor Relations Board against Epic
(04:32):
Games after the company implemented an AIvoiced Darth Vader NPC in Fortnite last week.
The complaint, which can be viewed here, andyou better believe we're gonna look at that in
just a second, alleges that over the last sixmonths, Llama Productions, owned by Epic Games,
has failed to bargain in good faith with SAGAFTRA's video game actors and has made
unilateral changes to terms and conditions ofemployment without providing notice to the
(04:55):
union or the opportunity to bargain byutilizing AI generated voices to replace
bargaining unit work on Fortnite.
Now if you're hearing that and saying, well,who is even impact who are these who is the
employee we're talking about?
What do you mean you didn't bargain with thedeceased James Earl Jones?
Presumably, you did negotiate a contract withthe estate.
The estate seems all on board with this use.
(05:16):
So what are you talking about SAG AFTRA?
And that's immediately what I thought when Iread this news article, when I saw this
proliferating around the Internet, because it'snot immediately obvious what interest SAG AFTRA
has in the estate of James Earl Jones licensingout his likeness and his voice to a party like
Epic Games and Fortnite, except for theobvious, which is to say that generative AI and
(05:39):
these kinds of licenses can put actors out ofwork.
Right?
It is certainly the truth that new technology,including generative AI, can say, okay.
We can do this with just voice snippets.
We can do this recordings.
James Earl Jones obviously has a lot of them inStar Wars and outside of it.
And so actors right now that are represented bySAG AFTRA can look at this and say, well,
(06:01):
that's gonna put us out of work.
Maybe we should do something about it.
It's an understandable position for the union.
It's an understandable position for the actors.
It's maybe not as understandable a positionfrom a legal framework perspective.
So hold on to that thought as we dive a littlebit further in.
However, continues IGN, the use of AI voices atall by Epic Games presents a major issue for
(06:22):
SAG AFTRA given its efforts to come to anagreement on a contract for its video game
performers over the last year.
The video game performing members of the unionhave been on strike for around ten months now.
The strike was started specifically due to alack of agreement on AI provisions even as 24
out of 25 other contract proposals had beenaffirmed by both sides.
Yeah.
(06:42):
There's a sticking point over AI.
It's really no surprise that this lands mostheavily on video games because video game
companies are, at their base, tech companiesand are more likely to adopt high end early
stage tech than maybe other aspects of the SAGAFTRA adjacent movie making process.
Earlier this year, SAG AFTRA publicly shared abreakdown of the portions of the contract still
(07:05):
disagreed upon by both sides.
We'll take a look at that in just a second aswell, expressing that it was still
frustratingly far apart on the provisions.
In light of this, SAG AFTRA has issued astatement explaining its unfair labor practice
charge against Epic that might be a little bitstrong.
I'm not sure this actually explains everything.
Essentially claiming that Epic's use of AI wasundermining the work of human SAG AFTRA members
(07:27):
who have previously or could potentially dowork of matching Darth Vader's voice with their
own performances.
Here's the statement in full.
We celebrate the right of our members and theirestates to control the use of their digital
replicas and welcome the use of newtechnologies to allow new generations to share
in the enjoyment of those legacies and renownedroles.
I'm not sure they're actually celebrating thatwith this action, but hey.
(07:50):
However, we must protect our right to bargainterms and conditions around uses of voice that
replace that work of our members, includingthose who previously did the work of matching
Darth Vader's iconic rhythm and tone in videogames.
Fortnite's signatory company, LlamaProductions, chose to replace the work of human
performers with AI technology.
Unfortunately, they did so without providingany notice of their intent to do this, and I've
(08:12):
highlighted that particular statement becauseit's entirely unclear what legal obligation a
company should have to the union to notify themthat they're going to do something that
essentially eliminates their need to useactors.
Right?
If you were a video game company and you wereplanning on using SAG after actors to tape
vocal performances of your role playing game orany other game that you were making, and then
(08:34):
you decide not to do that, that you're justgonna use text or even text to speech, at this
point in time because you think it works betterfor your game, do you owe a notice to SAG after
that you're no longer gonna use their actors?
That's not usually how we think about labor orlabor strikes or just labor unions in general.
If you're not using that labor, you don't haveto tell them you're not using it anymore.
(08:55):
Your obligation is to bargain with them overthe terms around which you do use the labor
that is a part of their union.
So it's understandable why they're upset aboutthis.
It's not as easily understandable why theywould have a legal claim in this particular
context.
With the charge filed, the next step will be areview by the NLRB, the National Labor
Relations Board, potentially followed by aninvestigation and hearing if the agency
(09:19):
believes the charge has merit or dismissal ifthe NLRB believes it does not.
So, yes, just like we saw with respect to theCalifornia statements against epic against
Activision.
Apologies, epic.
That one isn't on you.
But just like we saw in that case, just like wesaw with respect to Blake Lively and Justin
Baldoni and the charging documents made withrespect to California in that particular
(09:42):
instance, This is a process by which a privateparty tells a government organization that they
think there's something wrong.
The government organization then evaluatesthat, decides whether or not it wants to pursue
something independently, whether it wants tomake a private right of action for the union or
someone else to bring a case in that particularinstance, it is not as it stands right now, a
(10:06):
lawsuit.
But, again, that's the social media team at IGNshortening things for headlines that can fit in
the character limits of Twitter.
I'm at least somewhat sympathetic to thatposition even if, as a lawyer who tries to be
very precise with his wording, I don't reallylove it.
In the event that it is determined Epic Gameshas committed an unfair labor practice, the
NLRB can force it to remedy the situation invarious ways.
(10:27):
Totally true.
Such as potentially hiring an actor to record avoice for Darth Vader or removing him from the
game entirely or some other penalty.
Yes.
The first listings here of forcing them to hirean actor or remove him from the game entirely,
those would be considered specific performanceremedies under the law.
Those are forcing somebody to do something ornot do something, not use your Darth Vader
(10:48):
generative AI.
Those are less likely to be used by the NLRBthan what is listed here as some other penalty,
which is monetary damages, something alongthose lines.
But, again, I have certain questions as towhether or not this is even an unfair labor
practice as presented here, and it's a verynovel question.
Generative AI is obviously very new.
(11:08):
We haven't seen a charge like this made, soit's entirely impossible to with 100% guarantee
how the board might reply to a situation likethis.
I can only express for you in this video that Ithink it is perhaps a stretch, a reach of the
use of the statute, and I will ask you thequestion as we end this video so that you can
(11:29):
leave comments to it in terms of what you thinkshould happen in a case like this one.
But it's a very unusual circumstance, and Iwanted to highlight it all for you because we
haven't seen it in virtual reality before, andthat always makes it interesting to me.
So let's take a look at what they actually saidhappened here in their charging document, which
you can clearly see is not a lawsuit.
There's a lot more information in a lawsuit.
(11:50):
We've read them for hours and hours and hourson this channel, and I'm sure you've seen them
online.
But this is a charging document against LlamaProductions, a subsidiary of Epic Games by SAG
AFTRA, and it says the above named employer,Epic for this purpose, has violated the
National Labor Relations Act by committingunfair labor practices within the meanings of
(12:10):
section eight a subsection one and subsectionfive.
So we'll have to take a look at some statutesas well.
Within the past six months, the employer by itsagents and representatives failed and refused
to bargain in good faith with the union bymaking unilateral changes to terms and
conditions of employment.
Right?
The National Labor Relations Act is onlyconcerned with employment, but that raises
(12:30):
another question, which is to say, is licensingout your vocal clips, even your visual
likeness, is that a term and condition ofemployment for legal purposes?
You're not employing anyone here.
You're transferring intellectual propertyrights, likeness rights.
So that all already appears to be at leastsomewhat contentious of a point here, but we do
(12:52):
understand that what SAG AFTRA is reallygetting at is that by using these licensed
intellectual property bits, you are essentiallyeliminating the need to negotiate with these
other people that we represent currently.
And is that something that SAG AFTRA shouldhave legal recourse to defend?
But that's what they're saying here.
I also wanna point out that when they talkabout what they're fighting over with respect
(13:15):
to AI, they are very far apart.
They've highlighted a number of contractprovisions that they have issues with here, but
one that they don't is that the currentcontract that they've agreed to that doesn't
have any red lines or blue lines or anythingelse as part of their statements includes a
term that says, in the event the principalperformer is deceased at the time the employer
(13:35):
seeks any required consent, the employer shallobtain the consent of the authorized
representative who represents the deceasedprincipal performer's exclusive rights as
determined by applicable law.
So when we talk about consent, one of thethings they're fighting over is what do you get
when you get the vocal clips that you'veotherwise bought when you sign an actor to
perform motion capture or otherwise in yourvideo game?
(13:56):
Can you take those clips, everything thatyou've made that you're putting directly into
your cut scenes, and generate new stuff in thefuture?
That's the big fight that they're having rightnow, and they talk about this in respective
estates, and that's applicable to James EarlJones in this particular case, and say, yes,
you need to go get consent.
But as long as you have that consent, you canuse it for all the other reasons that we might
otherwise negotiate.
(14:17):
Now it's important to note, this contract isnot yet final.
The reason that this is highlighted for you inthe terms of a breakdown document as provided
by SAG AFTRA is because the sides have notagreed on all of this.
But I'm pointing it out here because this islanguage that is not otherwise seemingly
controversial either on SAG's part or theemployer's part.
And so it is a common notion that if you go andget consent from a deceased party's estate,
(14:41):
you're gonna be able to use it for the reasonsthat an actor would otherwise be able to sign
up for the same thing.
And that makes total sense.
That's what you would expect.
You want under the law for people to have theauthority to license out things like their
vocal and identity performances.
But then we get a little bit lower, and we seewhere SAG AFTRA is really, really concerned.
(15:02):
The parties acknowledge the importance of humanperformance in interactive programs and the
potential impact on employment under thisagreement when a generative AI system is used
in lieu of performers to generate material foruse in interactive programs that would
otherwise be performed by those performers.
Now that's just a recital kind of paragraph.
There's no argument here between the two sides.
(15:22):
They're just including it so that we know wherewe are in the contract because they're not
sharing the whole contract with us in thisdocument.
But it's important because it's clear that SAGAFTRA is really concerned about this almost
negative effect of generative AI.
Not really as concerned about making sure thatthe generative AI licenses are what they would
want them to be because that's not really anemployee employer relationship, but more on the
(15:47):
effect that even entering into those licensesat all has on their ability to place performers
that are currently in their union with theseparticular bodies.
So it's a controversial, complicated positionthat SAG AFTRA has to take here.
And then by the time you're getting intocomplaints that LAMA and EPIC have violated
(16:08):
their National Labor Relations Act, you can seewhy they're doing it even when it doesn't
necessarily make a bunch of logical sense.
So that's that's the contract breakdown, and itsays at the bottom here that because generative
AI is so new, the parties agree that thediscussion in the future will include topics
such as how to enforce anything that we'retalking about here because we don't even know
(16:28):
what this looks like tomorrow, let alone nextyear.
It's a very difficult negotiation for basicallyeverybody in the creative pursuits to enter
into right now.
SAG AFTRA seems to be taking a more aggressivestance than other unions that have otherwise
agreed to various parts of this, and certainlythe video game portion of SAG AFTRA seems to be
(16:48):
the most aggressive.
Your minds can vary on whether or not that's agood or bad thing.
I do think this is the kind of thing that theunion should be interested in.
I'm not sure that makes what EPIC has done herea violation of the name National Labor
Relations Act.
So in order to make that statement, let's takea look at what that act actually says, and in
particular, the sections that SAG AFTRA saysare being violated by EPIC.
(17:12):
So it shall be an unfair labor practice for anemployer to restrain employees in the exercise
of the rights guaranteed in section one fiveseven of this title.
That's subsection one.
They say this is being violated.
And then in subsection five, to refuse tobargain collectively with the representatives
of the employer's employees subject to theprovisions of section one five nine a of this
(17:33):
title.
So SAG AFTRA says, you're restraining employeesin the exercise of their rights, and you are
refusing to bargain collectively with therepresentatives of a union, for this particular
business model.
And so we're assuming for purposes of thisconversation that SAG After actually is a
proper union to be forced to collectivelybargain with on the part of Fortnite and Epic.
(17:56):
I think that's a fair assumption.
It would obviously be even worse for thisparticular story if SAG AFTRA has nothing to do
with the actors that otherwise portray peoplein Fortnite, but we'll assume it for this
purpose.
And the real question is, can they say thatjust agreeing to a license of rights with the
estate of James Earl Jones is interfering,restraining, or coercing employees in the
(18:18):
exercise of their rights currently, and is itrefusing to collectively bargain with those
that are otherwise represented by SAG AFTRA?
And I would offer a couple of points here.
One, the unions always ignore this little pieceof the collective bargaining section of the
National Labor Relations Act, but this isimportant for this particular question.
Employees shall have the right to selforganization to form, join, or assist labor
(18:42):
organizations to bargain collectively throughtheir representatives of their own choosing and
to engage in other concerted activities for thepurposes of collective bargaining.
They have the right to unionize or other mutualaid or protection, and and this and is
important, shall also have the right to refrainfrom any or all of such activities except to
the extent that such right may be affected byan agreement requiring membership in the labor
(19:04):
organization as a condition of employment.
Now James Earl Jones, as a deceased person, isnot presently being employed by Epic Games.
What has happened is his estate has licensedout his likeness rights.
So this isn't really a condition of employmentkind of concept in this particular instance,
And it's important to note that even if itwere, if James Earl Jones himself were alive
(19:26):
and decided to license out his likeness in thisway, he has the right to refrain from joining
in with the union activities.
So SAG comes in, and they say you've refused tobargain with us over the terms of the AI
license that you've entered into with a thirdparty here, the estate of James Earl Jones.
And so that's a violation of this section, butit looks to me like it's probably a closer
(19:47):
question as to whether or not SAG is violatingthis section by essentially saying, well, any
estate that wants to license out intellectualproperty that could otherwise put one of our
actors out of work has to be deemed a member ofour union, has to be working with us to
collectively bargain the terms of that AIlicense and cannot otherwise enter into an
agreement on its own behalf, which cannotpossibly be the case under this provision of
(20:09):
the law.
And so it does appear to me like SAG AFTRA isperhaps reaching a bit too far even though they
definitely have an interest in trying tomaintain as many jobs for their members as
possible.
Continuing on, the other aspect that I wantedto highlight is that representatives designated
or selected for the purpose of collectivebargaining by the majority of the employees
shall be the exclusive representatives of allthe employees in such unit, and that any
(20:33):
individual employee or a group of employeesshall have the right at any time to present
grievances to their employer and to have suchgrievances adjusted without the intervention of
the bargaining representatives.
Said another way, given employees, even ifrepresented by the union, can go and solve
problems on their own as long as the adjustmentis not inconsistent with the terms of a
collective bargaining contract or agreement.
(20:54):
And as we've already talked about, the AIportion of the agreement is not yet settled.
So it's entirely unclear what notice Epic orLAMA should have to give SAG after when they
enter into this contract.
They haven't agreed to give any at this pointin time.
And so is this a violation of the NationalLabor Relations Act?
I certainly have my doubts on that even whileacknowledging with sympathy that obviously a
(21:17):
lot of people in a lot of jobs are going to bedisplaced by the work, by the abilities of
generative AI in the very near future, and itis obviously very interested by the union that
that not happen to the people that are it'srepresenting.
So I understand all of that, and yet the lawdoes not seem to cover what they are concerned
(21:37):
with in this particular instance.
That being said, that's virtually Galaty fortoday.
Again, if you like this kind of analysis andcommentary on video games, pop culture,
business, and law, please consider supportingthe channel on Patreon or through memberships
and super chats when we do livestreams, orotherwise just telling people that we're having
these conversations.
Every little bit helps, and I am so, soappreciative.
(21:57):
Now what do you think about this topic?
Do you think James Earl Jones should have theability to license out his rights or his estate
to license out his rights to places like Epic?
Should Epic have to go through SAG AFTRA tonegotiate the terms of that AI license?
Maybe you're just sympathetic to the actors inthis particular circumstance.
I certainly wouldn't blame you for that.
(22:17):
And you think that SAG AFTRA is the best, mostpowerful place to actually force these
companies to agree to reasonable terms.
But maybe you think, hey.
If my family member just died and they can helpsupport their family even in absentia after the
fact, they would want this to be done, and Iwanna enter into contracts like this.
As they said in the original article, that hewas the voice of Star Wars, and he wanted to be
(22:41):
a part of Star Wars now and into the future.
And so you are recognizing and honoring thelegacy of your family member in that particular
instance.
I can see both sides of this.
As we say a lot here, reasonable minds candiffer, but I'm very interested in your
opinion.
So please do let me know, and thank you forjoining me on another Virtual Legality.
Virtual Legality is a YouTube video series withaudio podcast versions presented as commentary
(23:06):
and for education and entertainment purposesonly.
It does not constitute legal advice and doesnot create an attorney client relationship.
If you have legal questions about the topicsdiscussed, please consult your own legal
counsel.
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