A Look Ahead: AI’s Influence on Labor in the Entertainment Industry

In a continuation of our artificial intelligence (AI) series, Dimitry Krol, Loeb & Loeb’s Entertainment senior counsel, discusses how AI has reshaped negotiations and contracts throughout the guild, union and production space in the entertainment industry.

While the strikes in Hollywood have subsided with temporary agreements in place, they shed light on the growing apprehension among talent regarding the integration of AI in the creation of creative works. The prevalence of generative AI, which is capable of precisely generating sounds and imagery and even of replicating actors, raises questions about the protections needed to allow cutting-edge technology and human talent to harmonize. Below, Dimitry explores the intricacies of AI provisions in labor agreements, addressing concerns through the lens of both talent and studios, and provides insight into the latest legislative and regulatory developments.  

In this discussion, when referring to AI, we include both generative and artificial technologies.

Tell us about your practice and the type of entertainment labor matters you generally handle. 

My practice focuses on helping clients navigate the entertainment labor landscape, which encompasses guild and union matters as well as labor and employment issues. I advise clients on risks and legal concerns that may arise during all phases of theatrical, television, digital, new media, interactive and commercial projects. This includes handling guild and union negotiations with the WGA, SAG-AFTRA, DGA, AFM, IATSE and Teamsters as well as any mediations, arbitrations and NLRB proceedings.

What current trends have you observed with the integration of AI within the entertainment industry?

AI in the entertainment industry is certainly a hot topic, especially when it comes to generative AI. This was, and is, a major negotiation point for the production companies and unions alike. SAG-AFTRA, WGA and DGA addressed AI in their 2023 collective bargaining agreements. The overarching concern among the writers, directors and actors is their potential replacement by such technology. However, they were also careful not to preclude its use. Rather, the goal was to strike a balance where their members would continue to work and be compensated, but also be able to use this burgeoning technology. The recent strikes highlighted the need to establish guidelines for using AI in content creation, emphasizing consent, knowledge and compensation.

How has AI altered negotiations between talent and studios?

Effective communication in the context of contracts, especially in the entertainment industry, is crucial to ensure clarity about the terms and usage of AI.

Collective bargaining agreements set parameters about AI use. Rights in the collective bargaining agreement cannot be waived without union permission. Addressing these parameters in contracts is crucial to ensure both parties have a clear understanding of their obligations. 

It is not just about creation; considerations also extend to the type of consent provided and  revoking or altering usage terms, including with third-party AI vendors. Concerns about motion capture content and the ability to control or limit usage are already surfacing. Therefore, discussions about not only creating and utilizing content but also adjusting terms should be part of the contractual discourse.

Are there any evolving regulatory or legislative developments that may impact the entertainment industry? 

There are several legislative developments in the United States that could impact the entertainment industry. Currently, there is the NO FAKES Act and the No AI FRAUD Act, both of which seek to protect the voice and visual likeness of all individuals from AI use while also providing a recourse for any violation.

In the negotiations with the International Alliance of Theatrical Stage Employees currently taking place, it’s clear that they’ve been closely observing the SAG-AFTRA, WGA and DGA negotiations as well as legislative action. While challenges are anticipated, these past strikes hopefully have highlighted the importance of communication and fostering trust during negotiations, allowing everyone to continue to work without pause. 

Looking forward, what strategies can legal counsel provide to clients in the entertainment space to navigate these ongoing agreement changes?

The application of AI provisions within collective bargaining agreements is one area where we are regularly conducting presentations. Our goal is to guide our clients to receive maximum protections while avoiding guild and union issues. 

We’re also supporting clients by addressing concerns about potential reuse of content. Navigating pre-existing and prospective contracts involves a case-by-case approach tailored to each client’s needs. It’s important that we’re carefully examining the specific goals of the client as well as those of talent, writers, directors and actors.

Above all, the top priorities for clients involve navigating the evolving landscape of AI utilization while being mindful of pre-existing agreements and union obligations. It’s crucial to adapt to new provisions and for clients to remain informed about legislation for a comprehensive approach to safely navigating the ever-changing technological landscape from both the production and legal aspects.

How is Loeb a leader in the space?

At Loeb, we have a dedicated AI Industry group and extensive guild, union and business affairs experience. Our team excels in contract negotiation and compliance with relevant laws. Clients understand the complexity of these issues when reading through agreements and we help them navigate concerns in a way that is aligned with their goals.

In addition to individual client presentations, our firm regularly speaks on the topic of AI, including at our annual IP/Entertainment conferences. Our deep entertainment industry background combined with our experience advising on AI-related matters allows us to share valuable insights and address queries to keep clients prepared in the evolving AI landscape.