09 November 2023
With Hollywood’s 118-day strike resolved, production can finally resume on our favourite evening TV shows. The union’s new contract provides actors protection from digital replicas are made of them or when their voice, likeness, or performance will be substantially changed by AI. But what future do actors face in Asia, where SAG contracts often do not apply? Excel V. Dyquiangco reports.
Negotiations between the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) actors’ union and the Alliance of Motion Picture and Television Producers have finally drawn to an end. The actors’ union ended the 118-day strike Thursday, November 9, at 12:01 a.m. in Hollywood. Variety reported that the union’s negotiating committee approved the deal on a unanimous vote; the SAG-AFTRA national board will vote on the agreement on Friday. The deal reportedly includes the first-ever protections for actors against artificial intelligence, as well as a historic pay raise.
“We have arrived at a contract that will enable SAG-AFTRA members from every category to build sustainable careers,” the union said in an email, as reported by Variety. “Many thousands of performers now and into the future will benefit from this work.”
In its strike, SAG members proposed that a comprehensive set of provisions should be established to protect human-created work and require informed consent and fair compensation when digital replicas are made of them or when their voice, likeness, or performance will be substantially changed through AI. Some experts have said that the underlying concerns of the SAG members are understandable as there will be an economic impact to actors and artists if they do not have a right to their digital personas.
In the Asia-Pacific region, the impact of the SAG strike was not as widespread as it was in North America, and while perhaps the creative community didn’t go on strike, there were isolated pockets of peaceful protests by writers, including in India, according to Chandrima Mitra, a partner at DSK Legal in Mumbai.
“However, the strike has made the artists more cognizant about the value of their personality rights and the growing impact of AI technology,” she said. “In India, the legitimate use of AI technology to create likeness or digital persona of actors has been in a limited manner like in certain advertisements when Cadbury used the digital personas of renowned Indian film actors Hrithik Roshan and Shah Rukh Khan in separate advertisement campaigns. The impact of AI technology on the personality rights of actors and artists could be multifold.”
Under Indian laws, there is no specific intellectual property right that governs personality rights, as of now. These rights are distinct from traditional intellectual property rights like copyrights, trademarks and patents, which primarily protect creative and commercial assets. Personality rights are more concerned with safeguarding an individual's personal identity and reputation – which are interlinked with the right to publicity and are primarily concerned with safeguarding an individual’s personal identity and reputation. This right allows the individual to control the usage of their name, image, likeness and other personal attributes. This control extends to commercial and non-commercial usages like associations, endorsements, advertising, merchandising and protection against defamation.
In Hong Kong and in mainland China, meanwhile, actors are generally not subject to SAG terms. However, it is generally the norm for these artists to assign to the production studios all rights in and to their performances relating to the project for which they are engaged, including the ability to exploit all assigned rights in any manner and through any media known at the time of agreement or devised thereafter. Thus, on the face of it, the standard assignment clauses allow studios to use artists’ images filmed in one project to generate subsequent works for another project via AI.
Furthermore, in Malaysia, there is the absence of specific legislation that regulates or deals specifically with AI and AI-generated content such as digital replicas. The Malaysian copyright law currently provides for “performers’ rights” under the Copyright Act 1987. Section 16B further provides that where a sound recording is published for commercial purposes or a reproduction of such recording is publicly performed or used directly for broadcast or other communication to the public, an equitable remuneration for the performance shall be payable to the performer by the user of the sound recording. Under the Copyright Act, performers’ rights also include moral rights that guarantee that their performances are not distorted, mutilated, or modified in a way that would be prejudicial to his reputation, and that performers are identified for their contribution to a performance.
Impact on personality rights
Mitra said that the use of artificial intelligence technology, which can replicate human faces, voices, and even create images and text, poses an existential threat to actors, writers and other creatives, leading to demands for strict AI regulations in the entertainment industry.
Under various jurisdictions, she listed some broad categories that could affect an individual’s personality rights:
“With the Indian culture deep-rooted in cinema, show business and celebrities, the increasing use of technology and proliferation of social media has made the celebrities reach the length and breadth of a country as large as India with its diverse culture and this in turn has made them public figures,” she said. “This has also led to the actors and artists becoming more aware of the commercial value of their personality rights. While contractually the negotiations haven’t really changed dramatically where there are extensive discussions around usage of actor or artist likeness in AI-generated content, however, there is certainly an awareness amongst the actors and artists regarding the usage of their AI-generated likeness. As recent as September 2023, Anil Kapoor, a renowned Indian film actor, was able to obtain an interim order from the Indian courts protecting his personality rights and restraining various entities from misusing his image, name voice or other elements of his persona for monetary gains without his consent.”
Mitra added, “However, despite the aforesaid evolution of personality rights in India, the law in India is still at its nascent stage of development with respect to the use of AI-generated content. In the coming times, we anticipate that there will be more defined language in the contracts for usage of the likeness of actors in AI-generated content.”
Misleading the public
The case is quite similar in Hong Kong. Ian Liu, a partner at Deacons in Hong Kong, said that with the advancements in AI, the technology enables the generation of works, such as literary works, musical works, images, films, sounds and moving images. “However, copyright laws in most jurisdictions may not provide protection to the likeness of actors and performances without a fixation of such likeness and performances as works,” he said. “The recent SAG strike aimed at filling a gap for protection of actors and artists’ AI likeness and closeness.”
He added, “However, despite such wide assignment of rights, production studios are not necessarily free to use artists’ images and likeness however they wish in relation to subsequent projects. For example, in Hong Kong, subsequent use of digital replicas may be prohibited if it is likely to mislead the public into believing that the subsequent project is licensed or endorsed by the artist. In mainland China, use would be prohibited if it violates the portrait rights and personality rights of the PRC Civil Code. Thus, as far as Hong Kong and China are concerned, there are other legal safeguards that limit the studios’ use of the artists’ likeness and digital personas for purposes not contemplated in the original engagement agreement.”
Legal challenges and considerations may also arise, naturally. These include whether copyright subsists in AI-generated works, copyright ownership of AI-generated works using likeness of actors and artists, enforcement of IP rights subsisting in AI-generated works, scope of the use of their likeness in AI-generated works, compensation for the use of their likeness in AI-generated works and termination and duration of the use of their likeness in AI-generated works.
Theresa Luk, a partner at Deacons, said that in Hong Kong, actors and artists may claim rights to their images by relying on passing off – misrepresentations that a work is licensed or endorsed by an actor or artist, and which is likely to cause damage. “On the other hand, the film and television producers are likely the copyright owners of the works depicting the likeness or images of the actors or artists. Therefore, when negotiating contracts, actors and artists may not have a strong bargaining power to request for rights on the works depicting the likeness or images of the actors and artists,” she said.
She added, “Before the advent of AI, artists have likely contemplated an assignment of rights to relate only to performances that they have participated in. However, an assignment of artists’ rights in the same breath, which is standard across the entertainment industry, theoretically allows production studios to film sufficient shots of the artists’ performances or images for, say, a few scenes in a TV show, and then subsequently train AI to create more scenes for the same TV show. This may not have been contemplated by some actors, especially those paid by the amount of time spent for filming. Moreover, artists should also consider whether any AI-generated content based on their likeness can be used for other projects, and what limits are to be set for such use.”
“The parties should therefore be transparent as to whether an artist’s likeness will be used in AI, how would it be used, and include certain parameters in the engagement agreement as to what extent of use is acceptable. Actors and artists should bear these in mind when negotiating contracts with the film and television producers,” she said.
Torts of defamation
In contrast, Singapore law does not recognize image rights or personality rights. Thus, there are no specific intellectual property or other rights that protect an actor’s or artist’s ability to commercially exploit their likenesses in the same way as in the United States.
“In Singapore, an actor or artist could protect his likeness through the torts of defamation or passing off,” said Sheng Rong Tng, a partner at Rajah & Tann in Singapore. “These torts protect a person’s reputation and goodwill respectively and may be engaged where an actor’s or artist’s likeness is utilized in a manner that negatively affects his reputation or goodwill. Whether this does, in fact, take place when an actor’s likeness is manipulated through AI would depend very much on how the likeness is utilized and what the end product is. This leaves a gap or lacuna in the law – there may be instances where an actor’s likeness is utilized in a manner that does not impact his reputation or goodwill, so there is no legal remedy in torts of defamation or passing off, yet the actor is not compensated for the use of his likeness.”
He added: “The good news is that present-day AI technology, while impressive, has not advanced to such a level that it is able to satisfactorily create digital likenesses and manipulate them to create or alter performances without a sufficiently large data set to train the generative AI system. Perhaps sometime in the future, AI technology will be able to create an entire likeness that can be fully manipulated, just based on a single video or image of an actor. But as of today, for AI to create the required digital likeness, thousands of images and videos must first be captured, through the actor spending hours in front of a camera and green screen to capture his face, movements, and voice. The actor still wields a sufficient level of control to dictate how his likeness is used. Thus, there is a window of opportunity for actors to engage with studios and production companies to ensure that their ability to commercially exploit their likenesses at reasonable levels of remuneration.”
He said that there are two main considerations when negotiating contracts involving the use and exploitation of an actor’s likeness in AI-generated content:
He said, “It would also be advisable for an actor to ensure that his consent for the studio to use his digital likeness is restricted to a particular project. One danger of providing express consent to one studio for one project is that it may constitute express consent or be deemed as implied consent for his digital likeness to be similarly used, either to other studios or for other projects. It would be difficult for an actor to adequately protect his ability to commercially exploit his likeness if he provides consent to the studio to use his digital likeness in any future project, or for any other use beyond projects.”
A balance between rights and innovation
According to Janet Toh, a partner at Shearn Delamore & Co. in Kuala Lumpur, the strike serves as a poignant reminder of the potential abuse and exploitation opportunities that artificial intelligence may pose to the creatives, and the need to balance between the protection of the actors and artists’ rights in their images and performances against the need for innovation and flexibility in the production and distribution of performances.
“It highlights the ground-breaking changes AI has brought to the entertainment world with its ability to simulate human expressions, emotions and movements, offering possibilities for creating realistic characters and enhancing performance through technologies such as motion capture and facial recognition without the consent of these actors and artists and their physical contribution,” she said. “This therefore impacts the economic and moral interests of these actors and artists and other stakeholders invested in the making of performances like producers.”
The strike has also raised the issue of how intellectual property should protect the digital replicas of actors and artists. Often, many of these actors and artists allege that their images have been coerced, replicated, used and in ways their original contracts never covered. Digital replica is a rather novel concept under the law. Informed consent for digital replica is one of the key issues in the negotiation.
“The actors fear a possible future in which studios will compel them to relinquish rights to their images, ultimately leading to their digital clones replacing them in the industry,” she said. “Particularly, the SAG strike focuses on the exploitation of background actors, who are known as extras, often appearing in the background of a scene, performing non-speaking parts. Generally, when the actors perform on film sets, the studios may have their images digitally scanned, and their voices digitally recorded. The strike stresses the concerns that these data may then be stored and utilized by the studios for any purposes without the actors’ consent. The studios may also be able to make changes to the actors’ dialogue, and even create new scenes without the actors’ informed consent. For the producers, digital replica is an efficient and cost-saving method to create crowd without requiring extensive physical shooting and manpower.”
She added: “However, for the actors, digital replica is a critical issue that will leave them vulnerable to having most, if not all, of their work being replaced by their digital clones. Intellectual property rights of the actors encompass legal protections and rights associated with their creative and intellectual contributions within the entertainment industry. Such rights vary from one jurisdiction to another and are generally governed by a combination of laws and legal principles, among others, the right to publicity and copyright law. Pursuant to the SAG strike, it is evident that there is a growing awareness amongst the members of the entertainment industry of their contractual bargaining power, particularly in terms of intellectual property rights. Contract negotiation holds significant importance for actors in terms of defining terms, among others, the usage of their image or likeness, and the fair compensation that entails. Through negotiations, actors can retain control over their intellectual property rights, including any potential sequels, spin-offs, or adaptations involving their performances.”
“As AI technology improves, it is a legitimate concern that actors may have their talent exploited without their consent. The SAG strike underscores a shared objective – to work towards a resolution where the requirement of informed consent to create and use digital replicas, as well as subsequent digital alterations, are clearly spelt out in the contracts,” she said.
Protection for artists
Accordingly, said Mitra, the way in which artists can proactively preserve their rights could be two-fold: one, at the time of entering into an agreement, and second, seeking legal remedies before the courts in case of an infringement or violation of their rights.
“Usually producers of audio-visual content and audio content seek all possible rights in and to the performance of the artists including the right to exploit the said content in perpetuity throughout the universe, though not only the existing modes but also future modes that may, subsequently, come into existence as well as the right to use the artist’s name, likeness, image, persona, etc. in such content, without any restriction,” she said. “Therefore, artists ought to be mindful as to the rights being granted as part of an agreement with any producer, such that they do not grant a gamut of rights, which may then include the right for their attributes or persona to be used with AI. Now with the increasing awareness of AI-generated content and the contracts that actors and artists propose to negotiate should be looked at to address details for specific purposes for which the likeness may be used for example, the duration of use, and any limitations on the use of the likeness in different types of media. The actors and artists may negotiate for control and approval rights over how their likeness is used in AI-generated content. This allows them to ensure that their likeness is not portrayed in a manner that could be damaging to their reputation or public image.”
In some jurisdictions, such as China, the likeness of actors and artists is protected by portrait rights – the Civil Code of the People’s Republic of China provides for such personality rights. According to Article 1019 of the Civil Code, without the consent of actors and artists, their portraits shall not be produced, used, or made public, unless otherwise provided by law. Unauthorized uses of the digital personas of actors and artists, including uses in AI, in China may constitute infringements of portrait rights. Thus, instead of seeking IP protections, actors and artists may rely on portrait rights to ensure their likenesses are protected.
“However, in Hong Kong, there is no portrait right that specifically protects the likeness of a person,” said Liu. “Actors and artists may rely on the tort of passing off to enforce the rights on their likeness. To establish passing off in Hong Kong, the actors and artists would require proving: (1) their goodwill or reputation; (2) the persons, who use their likeness without authorization, have made misrepresentations leading to likelihood of confusion or deception; and (3) damage or likelihood of damage to them.”
Added Luk, “To minimize surprises, artists and studios should expressly state in contract whether AI will be used to regenerate the artist’s likeness and performances, and if so, to what extent and for what purposes. To align both parties’ expectations, contracts may also specify the particular way the artist’s likeness may or may not be used, for example, by prohibiting use of likeness from intimate or violent scenes, and any performances by digital replicas must be in line with the nature of the artist’s performance as agreed. The parties should also state clearly whether AI-generated performances and digital recreations can only be used for the project at hand, or for any other future projects as well.”
“With such understanding, actors and artists are then able to decide how best to protect their intellectual property rights and to ensure that their contracts with the production companies or studios set out provisions to protect human-created work, as well as requirements to obtain their informed consent when a digital replica is made of them, or when their voice, likeness, or performance will be substantially altered using AI,” she said. “It is therefore important for laws to address the ownership of performers’ rights in AI-generated performances, the infringement of performers’ rights by AI systems, who should bear the liability and what are the exceptions as well as limitations.”
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