The use of generative artificial intelligence (AI) is, and will for the foreseeable future continue to be, a contentious topic in the entertainment industry. As this post is being written, the Writers Guild of America (WGA), which represents writers in the film, TV, radio and online media, is on strike – and one of the stated objectives in their negotiations is to “[r]egulate [the] use of material produced using artificial intelligence or similar technologies.” In particular, they are seeking protections in their collective bargaining agreement with producers which would prohibit the use of generative AI to write or rewrite literary material generated by guild members, and prohibit the use of literary material created by guild members as source material for AI or being used to “train” an AI.
The phenomenon which has given rise to the WGA’s concerns is, of course, not confined to screenwriting – performers, content creators and producers in many fields of endeavor are contending with how AI will impact the workflows and economic assumptions that undergird entire industries. From writers to actors, to musicians to visual artists – and those who historically have hired those individuals to create content – seemingly everyone in all creative fields will need to think about how to handle generative AI.
Which leads to some questions: how will contracts be modified to address generative AI? In particular, how can contracting language, particularly as it pertains to the grant of rights in respect of copyright-protected materials which are delivered under the contract, address the use of that material in generative AI? Of course, views on this are likely to be diametrically opposed between content creators and producers. To get the conversation (and drafting) going, we have prepared some sample contract language that addresses whether and how generative AI can be used in the context of entertainment-related content.
Here is some “protective” language for content creators:
The rights granted by Artist to Producer pursuant to this Agreement expressly exclude, and Artist expressly reserves, any right or permission to retain, reproduce, communicate or otherwise use or exploit the Content in or in connection with any activities which involve, or are intended to result in, the training of artificial intelligence or machine learning algorithms, models, systems, platforms, services or other technologies (collectively AI Tech), or the generation of new or derivative content or works (including, without limitation, text, images, sounds and performances) by or using such AI Tech (Output), including, without limitation, Output which is intended to or does replicate, imitate or evoke the style, manner, method, performance or approach of Artist (whether or not in the same or a different genre or medium of expression). For greater certainty, Producer does not have the right or permission to authorize or grant, assign or license any other party to do anything with the Content that is contemplated in the preceding sentence.
And here is some permissive language which “producers” (broadly understood) may wish to consider:
The grant of rights to Producer in this Agreement includes the unrestricted irrevocable right, both during and after the Term, without any further payment to Artist, to retain, reproduce, communicate and otherwise use or exploit the Content to train any artificial intelligence or machine learning algorithms, models, systems, platforms, services or other technologies (collectively AI Tech), or to use the Content in or in connection with any AI Tech to generate new or derivative content or works (including, without limitation, text, images, sounds and performances) (New Content), and includes the unrestricted right to authorize or grant, assign or license any other party to do any of the foregoing. For clarity, and without restricting the grant of rights to Producer in this Agreement, as between Artist and Producer, Producer shall be the sole owner of any New Content generated by any AI Tech using the Content, and Producer shall have the unrestricted right to retain, reproduce, communicate and otherwise use or exploit the New Content. For greater certainty, Producer has no obligation to provide Artist with any notice, or to seek any permission from Artist, or make any payment of any kind to Artist in connection with Producer’s use of the Content in or in connection with any AI Tech, Producer’s creation of any New Content using the Content using AI Tech, or Producer’s exploitation of any New Content.
There are some qualifications about the foregoing clauses. First, these clauses are presented in the prospective context of a “plenary” grant of rights from a content creator to a producer (i.e. the producer is acquiring all, or nearly all, rights in respect of the content being contracted for). Second, neither clause could live on its own and could, as the situation warrants, be accompanied by provisions pertaining to representations and warranties, guild or union requirements, compliance with laws, confidentiality, data protection, privacy etc. The foregoing clauses are presented only as prompts for consideration and discussion, do not constitute legal advice and should not be reproduced or otherwise used without obtaining legal advice applicable to the particular situation of the user.
