Last week the entertainment industry drew a collective sigh of relief as the summer of discontent finally ended with the announcement that a tentative agreement had been reached between the AMPTP and SAG-AFTRA.

Whilst the battle for further transparency and success-based payments from the streamers has been at the heart of the negotiations, the 2023 Guild negotiations will go down in history as being the first to seek to define and govern the use of AI and machine learning within the entertainment industry.

In the months leading up to the start of its negotiations, SAG-AFTRA signposted to the industry that the issue of AI would need to be addressed. However, the extent to which the topic has dominated the US Guild negotiations has probably taken many people in the industry by surprise. If the trades are to be believed, AI (and the use of synthetic or computer-generated artists) was the final issue to be resolved between SAG-AFTRA and the AMPTP. Indeed, in the writers’ negotiations, it speaks volumes of AI’s unknown potential that the WGA sought not only protections for their members against its use, but also asserted their members’ right to harness its power in their own work (should they choose to, and subject to producer consent and applicable policies).

There are still a lot of unknowns about how AI and machine learning will impact the entertainment industry. However, two things are beyond doubt:

• Firstly, this is just the first iteration of what will be an evolving discussion. Tellingly, each of the US Guild agreements include some requirement for an ongoing dialogue in respect of the use of AI during the term of the new agreements.
• Secondly, the AI provisions in the US Guild agreements are going to shape the custom and practice of how AI is defined and addressed within the entertainment industry in every other country around the world including the UK. Our intention is to remain closely involved in the upcoming negotiations between PACT and the UK entertainment unions in connection with the application of AI in UK talent deals and to keep you informed on the progress of these discussions.

Here are the summaries of the DGA, WGA and SAG deals (including the AI provisions) which have been issued by the respective Guilds (and, so whilst being informative, should not yet be relied upon as authoritative statements of the fully agreed position). We look forward to working with our US and UK production clients to assess the impact of these provisions on future productions. As ever it will take time to work through the nuances and exceptions contained within each of the new US Guild Agreements but, unsurprisingly, it’s clear that the issues of informed consent and fair compensation are key to the safeguards demanded by the US Guilds. Importantly, none of the AI provisions appear to have retrospective effect.

However, whatever has been agreed by the US Guilds (and, in time, by their UK and other international counterparts) is only part of the story. Collective bargaining agreements must be reviewed within the wider UK and EU regulatory and legal landscape. When it comes to confronting the issue of AI and machine learning, our clients will also need to consider the following:

• In the EU, the Film & TV industry, which looks at AI from the rightholder and user perspective, is grappling with a range of complex copyright issues as well as efforts to regulate deep fakes. EU author/performer groups, like their counterparts in the US, along with other rightholders, are advocating for more transparency and protection. In certain cases, some groups also seek to secure remuneration for AI related uses potentially via mandatory collective management.
• Our EU practice, led by Ted Shapiro, partner and head of Brussels office, advises clients on the impact of AI on the content sectors including in the context of the nearly completed AI Act and the 2019 DSM Copyright Directive.
• Our technology sector and litigation teams, led by Mark Deem, advise clients about the legal, regulatory and security risks arising from the deployment of artificial intelligence and machine learning technologies, as well as the broader commercialisation of these technologies, and the protection of data assets and content.
• Mark was one of the co-authors of the Manifesto for Responsible AI, published in June 2022 as part of his book, AI on Trial, which examines the ethical, legal and regulatory framework required for the development of the technology.

• From an IP perspective, AI raises a host of issues that are being hotly debated and grappled with by industry, lawyers and regulators alike. Key questions in relation to copyright include: the extent to which copyright subsists in AI-generated content and, if so, who the owner of the copyright is; potential liability issues arising from the ingestion of copyright works for the purposes of training and ‘fine-tuning’ AI models; the extent to which AI output may infringe upon those training materials; and how (if at all) copyright exceptions apply in this context. The debate in the UK will no doubt be shaped by ongoing work on a Code of Practice on Copyright and AI, as well as by case law in due course. And of course, the IP considerations extend to a host of other areas, including moral rights, trade marks and database rights.
• Our IP team has a wealth of experience advising clients operating in the creative industries on the interplay between intellectual property rights and emerging technologies, including AI. Rachel Alexander, a partner in our UK team, has particular expertise in this area. Read her article on what generative AI means for copyright here.

• The use of AI in the Film & TV industry cannot be separated from data protection. In fact, the UK’s White Paper on AI sets out that existing regulators and legislation, in particular the ICO and the UK GDPR, will be responsible for governing AI. We have identified several issues that have (or will) arise when using AI, including transparency and fairness; the use of personal data; consent vs legitimate interests; automated decision-making; and whether the use of AI will have a legal or similar significant effect on those individuals whose personal data it processes. The issues are complex, but our data privacy team has the expertise and industry-knowledge to help production companies address them all.
• Wiggin’s data privacy practice, led by Patrick Rennie, specialises in issues that impact the Film & TV industry. The team’s Film & TV experience means that they are able to advise on AI and consider the specific issues facing the Film & TV industry.

Our lawyers are already actively advising clients on all of these issues around the wider creative sector. Wiggin is ideally placed to advise you on all aspects of AI as the Film & TV business evolves and the issues anticipated by these landmark US Guild agreements become part of everyday production.

In the coming weeks, we will be providing you with updates as the UK Guild negotiations progress and we will be in touch to offer interactive seminars to discuss how Wiggin can help your business overcome the challenges and maximise the opportunities presented by AI and machine learning.