Sydni Wynter
Nearly 148 days after the Writer’s Guild of America (WGA) went on strike and effectively halted Hollywood as we know it, the writers’ unions and the Alliance of Motion Picture and Television Producers (AMPTP) have reached a tentative collective bargaining agreement that the Guild will bring to an official vote by union membership this week.[1] The nearly five-month strike beginning in May 2023, marked the first Hollywood shutdown in nearly two decades–which saw 11,500 motion picture, day-time television, and streaming writers out of work while the Guild and studios were engaged in fervent negotiations.
The Union raised a number of demands throughout negotiations: including increased minimum pay and royalty payments for cable and streaming production, strengthening of protections for writers, but most importantly, and controversially, express “guarantees that artificial intelligence would not encroach on writers’ credits, compensation,” and employability.[2] While the union and AMPTP trading alliances were able to reach an agreement on the majority of the Guild’s demands, the final point of contention centered on the use of generative artificial intelligence (GAI).[3] Alongside various ethical issues of GAI, the central anxiety surrounding the expansive form of technology is the unanswered copyright and intellectual property implications for ownership and liability that may create issues for writers and studios alike.[4]
Generative Artificial Intelligence uses available sets of data that contain examples of the entities that will be used as a beginning point for the generation of new data that is outputted.[5] The sets of data act as training sets in which information can be extracted, however the data that is contained in these sets may be protected by copyright—such as screenplays, poems, articles, and other forms of literary works.[6] One key feature of GAI processing that lies at the crux of its potentially troublesome legal implications is that it learns directly from the whole work as it exists in its expressive forms (which are protected by copyright law), not through the study of small features or underlying ideas (which are not protected by copyright law). Specifically, in the realm of script production and screenwriting, the use of GAI creates as least two issues in the realm of copyright law and its protections: (1) the use of protected works, which must be stored in memory until the end of the training process (if not longer, in order to reproduce the experiment); and (2) the ownership of intellectual property rights in the resulting, generated works.[7]
While the Copyright Office has attempted to provide guidelines around registering works with AI-assisted elements, and legislation is (hopefully) being created to provide statutory guidance, the Writer’s Guild has fought for express protections for its members and their works in the interim. The Writer’s Guild proposed tentative collective bargaining agreement (MBA), includes the proposal for a new addition, Article 72, that specifically deals with potential issues with Generative Artificial Intelligence that may affect the livelihood of writers.[8] The proposed Article sets out four explicit protections for writers related to generative artificial intelligence. The protections include an express agreement by the parties that AI will not be considered to be human, a writer, or a human writer—which resolves potential copyright issues in light of the human authorship requirement for copyright eligibility.[9] The following clauses establish a notice requirement for studios’ intended use of GAI in the script-writing process, deny studios the right to disqualify a writer from copyright and compensation rights for using GAI-produced material, and allow studios to disallow writers from using GAI if its use may affect the potential copyrightability of a work.[10] Perhaps most notably, the tentative agreement recognizes that the implementation of GAI into the motion picture production process may potentially introduce “issues of ethics, privacy, security, copyrightability or other protection of intellectual property rights.”[11] In acknowledging the peripheral legal issues, the Guild now retains the right to regularly meet with the AMPTP trade alliance to discuss, review, and amend the agreement between the parties to accurately reflect the rapidly changing legal landscape around artificial intelligence.
As Congress, and even the Copyright Office itself, are slow-moving to produce comprehensive, statutory guidance on the use of and impact on existing copyright laws with the rapid integration of artificial intelligence into the creative world, the Writers Guild’s eagerness to address the issues of generative content creations and the potential implications on its union members will undoubtedly shape the near future of television, film, and streaming. The Guild’s actions further strengthen a national call to action to the federal government to swiftly to introduce comprehensive legislation surrounding Artificial Intelligence. Such legislation will undoubtedly affect a number of areas of law—from data and privacy, to labor and employment, to intellectual property and particularly copyright, and a result, the livelihoods of countless creatives.
[1] John Koblin & Brooks Barnes, What’s the Latest on the Writers’ Strike?, N.Y. Times (Sept. 27, 2023), https://www.nytimes.com/article/wga-writers-strike-hollywood.html [https://perma.cc/KTU4-R4NY] [https://web.archive.org/web/20231002200955/https://www.nytimes.com/article/wga-writers-strike-hollywood.html].
[2] Id.
[3] John Koblin & Noam Scheiber, Will a Chatbot Write the Next ‘Succession’?, (Apr. 29, 2023), https://www.nytimes.com/2023/04/29/business/media/writers-guild-hollywood-ai-chatgpt.html [https://perma.cc/J5D2-5TVQ] [https://web.archive.org/web/20231001230527/https://www.nytimes.com/2023/04/29/business/media/writers-guild-hollywood-ai-chatgpt.html].
[4] Artificial Intelligence and Intellectual Property Policy, World Intell. Prop. Org., https://www.wipo.int/about-ip/en/artificial_intelligence/policy.html (last visited Oct. 1, 2023). [https://perma.cc/6CS3-JZ93] [https://web.archive.org/web/20230605111704/https://www.wipo.int/about-ip/en/artificial_intelligence/policy.html].
[5] Giorgio Franceschelli & Mirco Musolesi, Copyright in Generative Deep Learning, 4 Data & Policy e17 (2022).
[6] Id.
[7] Id.
[8] Writers Guild of America & Alliance of Motion Picture and Television Producers, Memorandum of Agreement for the 2023 WGA Theatrical and Television Basic Agreement 68 (2023), https://www.wgacontract2023.org/wgacontract/files/memorandum-of-agreement-for-the-2023-wga-theatrical-and-television-basic-agreement.pdf [https://perma.cc/6VTY-WLRB] [http://web.archive.org/web/20231004202300/https://www.wgacontract2023.org/wgacontract/files/memorandum-of-agreement-for-the-2023-wga-theatrical-and-television-basic-agreement.pdf].
[9] Copyright Off., Copyrightable Authorship: What Can Be Registered 7 (2021), https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf [https://perma.cc/BA3P-3BA9] [http://web.archive.org/web/20231004202834/https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf].
[10] Writers Guild of Am. & All. of Motion Picture and Television Producers, Memorandum of Agreement for the 2023 WGA Theatrical and Television Basic Agreement 68 (2023), https://www.wgacontract2023.org/wgacontract/files/memorandum-of-agreement-for-the-2023-wga-theatrical-and-television-basic-agreement.pdf [https://perma.cc/6VTY-WLRB] [http://web.archive.org/web/20231004202300/https://www.wgacontract2023.org/wgacontract/files/memorandum-of-agreement-for-the-2023-wga-theatrical-and-television-basic-agreement.pdf].
[11] Id.