AI, Actors, And Intellectual Property: Hollywood’s Struggle For Balance

The WAG and SAG-AFTRA are demanding an improvement of their pay structures considering the recent changes in the mediums of viewership and innovations in technology. They claim that data regarding streaming revenue and viewership is not shared with them and because of such gate keeping, the royalties a.k.a residuals are not on par with their efforts. The WAG has contended that writers nowadays are required to write a greater number of episodes rather than full-fledged movies, due to the rise of OTT platforms. Furthermore, they have reiterated their demand that Artificial Intelligence (AI) should not be used as a source material for the purposes of writing.

However, the SAG-AFTRA has also diverted attention towards the use of AI and generative technology in filmmaking, which is said to be capable of putting background actors, if not all, out of work. The issue raised vociferously is with respect to the ownership rights of digital reproductions of an actors’ likeness. There have been various instances in the recent past wherein studios have recreated images and voices belonging to real actors, using AI, to use them in different media. Numerous background actors have claimed that production studios, represented by the Alliance of Motion Picture and Television Producers (AMPTP) are keen on owning and using the AI likeness of an actor till eternity. The usage of the same would be as per the requirements of the studio without the actor’s express consent to such usage, while paying the actor only for a day’s work, i.e., the day when the likeness would be captured and stored.

The AMPTP on the other hand has asserted that although it is keen on using new technology, it will not use digital alterations of an actor without their consent while adhering to the existing or a somewhat improved system of employment and revenue sharing.

This situation gives rise to a novel question involving the dynamic intersection of AI and Intellectual Property Right (IPR), an area that has given rise to complex legal challenges, warranting a comprehensive examination of the evolving landscape; Who owns an actor’s digital reproduction/likeness and how is it classified?

The Right of Publicity or Celebrity Rights can be defined as the right to control and profit from the commercial use of one’s name, likeness, image, or persona and finds its roots in the Right to Privacy. It is an economic right meant to protect income and financial gains, while also ensuring that one’s reputation is safe from misleading associations.

A digital reproduction of an actor without the use of AI is limited to the characters embodied and persona publicized whereas personal identity is separately dealt with. It is protected by the Lanham Act of 1946, with a mix of Tort Law in the US, whereas the Trademarks Act, 1999, along with the Copyrights Act, 1957, are available in India.

However, when AI and generative technology are brought into the mix, it gets a little complicated. This innovation can utilize an actor’s digital reproduction/likeness to an unimaginable extent. Once recorded and stored, the technology can generate everything possible to suit a sequence. This includes cloning of voice and performance. Therefore, an actor’s digital likeness can be made to perform as per the need of a scene(s) without them having to do anything. Such usage supersedes the need for that actor’s presence for the purposes of filming or delivering a performance(s) as the digital likeness can cover all aspects. How is such usage categorized? In the Indian jurisdiction, is the protection of such digital likeness covered by the definition of “performer” under the Copyrights Act, 1957?

It must be noted here that there has already been a steady rise in the creation of non-consensual intimate-scenes, deep-fakes of adult movies, and non-consensual nude performances. These are produced by AI software using publicly available images to depict an individual as performing pornographic works without consent. Such crimes are beyond the comprehension of the existing legal regime.

The protection of torts, copyrights or trademarks is available in circumstances where the physical being of an actor is either physically, digitally, or virtually misused. Some of the questions, apart from ownership rights and classification, are: (i) Does an actor give away their image rights forever if they create a digital reproduction? (ii) How is one protected if they are physically absent yet digitally present? (iii) How does one control the digital being that has been shooting multiple sequences in different corners of the world without the physical being trying to even leave the couch? (iv) Will the digital likeness be paid royalties akin to the current scenario? (v) What work will the actor do once they have recorded the creation of such a digital reproduction?

It could be said that this conundrum is beyond the capacity of IPR today because the classification of using an actor’s digital reproduction/likeness by way of AI or generative technology has not been considered in the past. Neither has the owner of a digital reproduction involving AI and generative technology been explicitly identified or defined by any existing legislation. This moment of pandemonium is termed as a turning point in law.

Our worlds evolve and so does the law. Reforming the law to answer these questions requires an in-depth analysis of the extent of usage of new technology in the domains of lifestyle and entertainment. As of now, there are only bleak estimates in this regard. It would require the swift promulgation of legislation(s) on the limitations of such usage while ensuring that there is parity for production houses as well. Thereafter, the creation and effective implementation of a regulatory system aimed at protecting the IPR of digital creators, actors, writers, and other such individuals who may be trapped in the ever-growing blackhole of AI and generative technology is a must to avoid such deadlocks in the future.

The author is an Advocate and views are personal.