AI Concerns of WGA and SAG-AFTRA: What Is Allowed?

The rise of the use of generative artificial intelligence (GAI) to produce original written material has left authors and writers across industries feeling threatened. This was one major factor that led to the Writers Guild of America (WGA) strike after failed negotiations with the Alliance of Motion Picture and Television Producers (AMPTP). The strike, which began on May 2, 2023, came to an end on September 24, 2023, when a tentative agreement between the WGA and the AMPTP was reached.¹ The WGA recently released a summary² of the new Minimum Basic Agreement (MBA), as well as the full agreement.³

Generative AI in the WGA Agreement

In summary, the WGA and the AMPTP have agreed to the following terms with respect to the use of artificial intelligence (AI) on MBA-covered projects (i.e., projects in which a producer hires a WGA writer to furnish services pursuant to the terms of the MBA):⁴

• The term “Generative Artificial Intelligence” generally refers to a subset of AI that produces content based upon learned patterns (e.g., ChatGPT and Llama), and does not include traditional AI technologies such as those used in computer-generated imagery (CGI) and visual effects (VFX).
• GAI cannot be a “writer” or “professional writer” as defined in the MBA because it is not a person, and therefore materials produced by GAI should not be considered literary material under any MBA.
• Producers (defined in the MBA as “Companies”) can supply writers with GAI-written material which has not been previously exploited and instruct writers to use this material as the basis for writing literary material if:
• The Company discloses to the writer that GAI produced the material.
• The material cannot be considered assigned or source material for purposes of determining compensation or writing credit.
• The material cannot be used to disqualify a writer from eligibility for separated rights.
• While writers can use GAI in the process of preparing literary material (e.g., 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.
• Companies can establish their own policies with respect to the use of GAI that writers will be required to adhere to. Companies can reject the use of GAI, including when the use could threaten the copyrightability or exploitation of the work.⁵
• Companies can require writers to use GAI programs that do not generate written material (such as one that detects potential plagiarism or copyright infringement).
• All parties reserve all rights with respect to the developing legal and regulatory framework around the use of GAI. This includes the WGA reserving the right to prohibit the exploitation of literary material to train GAI.

AI in the SAG-AFTRA Negotiations

The Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) also initiated a strike this year after failed contract negotiations with the AMPTP.⁶ Like the WGA strike, issues and ambiguity surrounding the use of AI to replace human labor was a driving force behind the SAG-AFTRA strike. In the SAG-AFTRA context, concerns regarding AI relate to the use of digital replicas of performers and using AI to change performances.⁷

SAG-AFTRA’s stance is that the right to replicate a performer’s image or voice through the use of AI to change or create a new performance, and the use of a performer’s voice, image or performance to train AI designed to generate new material, are subjects of bargaining, and that these rights cannot be conveyed without establishing the compensation and terms under which they are granted and used.⁸

The AMPTP has agreed that performers should be compensated when their likeness is used to generate a performance.⁹ However, SAG-AFTRA and the AMPTP are still at odds when it comes to specifying the parameters for granting the rights to this kind of use.

The SAG-AFTRA strike is ongoing, and AI remains a major point of contention. SAG-AFTRA and the AMPTP are set to resume negotiations on Monday, October 2.¹⁰

^{1 Frequently Asked Questions, https://www.wgacontract2023.org/faq.}

^{2 Summary of the 2023 WGA MBA, https://www.wgacontract2023.org/the-campaign/summary-of-the-2023-wga-mba?utm_source=substack&utm_medium=email.}

^{3 Memorandum of Agreement for the 2023 WGA Theatrical and Television Basic Agreement (September 25, 2023), https://www.wgacontract2023.org/wgacontract/files/memorandum-of-agreement-for-the-2023-wga-theatrical-and-television-basic-agreement.pdf.}

^{4 Supra note 3, at 68-71.}

^{5 See Generative AI and Recent Copyright Developments (July 26, 2023), https://www.akingump.com/en/insights/alerts/generative-ai-and-copyright-issues.}

^{6 On Strike!, https://www.sagaftrastrike.org/.}

^{7 Why We Strike, https://www.sagaftrastrike.org/why-we-strike.}

^{8 AI Letter, https://www.sagaftra.org/files/sa_documents/SAG-AFTRA%20AI%20Letter.pdf.}

^{9 Statement from the Alliance of Motion Picture and Television Producers (July 18, 2023), https://press.amptp.org/node/19219.}

^{10 SAG-AFTRA and AMPTP to Meet for Bargaining on Oct. 2 (September 27, 2023), https://www.sagaftra.org/sag-aftra-and-amptp-meet-bargaining-oct-2.}