SAG-AFTRA’s new contract hinges on studios acting responsibly with AI

Disagreements over the degree to which Hollywood’s movie studios should be allowed to digitally capture, own in perpetuity, and use the likenesses of living actors without oversight or restrictions are some of the biggest reasons why the members of the Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) have been on strike this year. After over four months of picket lines, thinly veiled threats from the Alliance of Motion Picture and Television Producers (AMPTP), and a general work stoppage that shut the entire entertainment industry down, there was hope of things taking a significant turn for the better this week when news first broke about the strike ending and a tentative labor contract being on the horizon pending a ratification vote.

But as understandably exciting as the prospect of the actors’ strike being over is, the tentative contract’s provisions — especially those regarding the use of generative AI technology — have given many striking actors pause because of how much faith it puts in the studios to act responsibly.

Yet its nebulous language about “unprecedented provisions for consent and compensation that will protect members from the threat of AI” left open many questions as to how well the contract would safeguard actors. The fact that almost 14 percent of SAG-AFTRA’s National Board voted against moving forward and putting the proposed contract up for a general ratification vote last Friday was also a sign that union members should look closely at the option being presented to them. By comparison, the national boards for both the Writers Guild of America (WGA) and the Directors Guild of America unanimously recommended their respective tentative agreements to their respective memberships earlier this year.

Reading over SAG-AFTRA’s 18-page-long summary of the tentative agreement, the union’s assertion that this deal could help thousands of performers build sustainable careers certainly sounds somewhat plausible. But when you start to parse the contract’s provisions regarding what specific new guardrails would be put in place to protect SAG-AFTRA’s members, it appears as if the AMPTP — a trade association representing film studios — is asking actors to trust that it will act in good faith.

SAG-AFTRA’s summary includes a number of new definitions for different kinds of digital replicas that can be created and details how studios would have to obtain clear and express consent from actors well in advance of having their likenesses captured. In some (but not all) cases, the tentative deal would also require that actors be paid at least the minimum “day performer rate (including residuals as applicable)” for the process of having their faces and bodies scanned. 

All of that sounds alright at face value. But part of what has prompted critics of the tentative deal, like director and former SAG-AFTRA board / negotiating committee member Justine Bateman, to speak out against it are all of the summary’s caveats that sound as if they could be fashioned into loopholes benefitting the AMPTP’s studios. In a lengthy thread posted to X, Bateman cautioned SAG-AFTRA members about the summary’s implication that human actors might end up having to compete with AI objects for jobs, and likened the proposed system to “SAG giving a thumbs-up for studios/streamers” to hire non-union actors.

“Bottom line, we are in for a very unpleasant era for actors and crew,” Bateman wrote. “The use of ‘digital doubles’ alone will reduce the number of available jobs, because bigger name actors will have the opportunity to double or triple-book themselves on multiple projects at once.”

On Monday, SAG-AFTRA’s lead negotiator Duncan Crabtree-Ireland told Variety that he spent “hours” on the phone with Bateman the previous day discussing the tentative deal’s AI provisions. While he characterized Bateman as being “justly cautious about the future,” he also insisted that the deal’s rules around AI were “the most that could be achieved with a 118-day strike.”

Newly re-elected SAG-AFTRA president Fran Drescher has not addressed Bateman directly. But in a Zoom meeting also on Monday, she told SAG-AFTRA members that “nobody was thrown under the bus” with the tentative agreement, and cautioned ,“If you read things like that, it’s very inflammatory and unfortunate, because it’s using social media and chat rooms to advance someone’s personal agenda.”

Though SAG-AFTRA’s strike officially ended on November 9th, the union’s summary of the unreleased deal repeatedly states that the AMPTP only has to “endeavor to comply” with its provisions until the new contract is officially ratified next month. The summary doesn’t go into detail about how its many provisions will be enforced, but when I spoke with Dominique Shelton Leipzig, an LA-based partner at law firm Mayer Brown, she reasoned that the threat of being hit with non-compliance claims gives studios one reason to be on their Ps and Qs as the use of digital replicas becomes more commonplace. Leipzig also pointed to the summary’s mention of regular meetings between SAG-AFTRA and the AMPTP as “a mechanism for encouraging compliance.”

Under the agreement, studios would gain the ability to create two kinds of digital replicas of real actors: employment-based digital replicas, which are replicas made using scans of the actual actors themselves like the The Flash’s Nicolas Cage Superman; and independently created digital replicas, wholly digital replicas crafted to resemble real actors in character as was the case with Harold Ramis’ posthumous appearance in Ghostbusters: Afterlife. The tentative agreement also defines “synthetic performers,” created using generative artificial intelligence, as assets meant to look and sound like humans despite them being digitally created and not specifically based on any one individual real person.

For both kinds of digital replicas, studios would have to endeavor to provide a “reasonably specific description” of their intended use. After obtaining initial consent from the actors in question, studios would also be able to continue to use those scans after the actors’ deaths “unless explicitly limited otherwise” in their specific contracts. Those rules seem designed to address situations like what happened following Carrie Fisher’s death in 2016 just months before she was set to appear in both Star Wars: The Last Jedi and The Rise of Skywalker.

With synthetic performers, studios would have to notify SAG-AFTRA of its intent to produce a project using an AI asset instead of a real person and offer the union an “opportunity to bargain in good faith” to give human actors a chance to go out for those roles. SAG-AFTRA has not explained what that bargaining process would entail.

As often as the summary talks about the consent studios would have to acquire from actors in order to scan their likenesses, it also says that studios would not actually need permission to use them so long as “the photography or sound track remains substantially as scripted, performed and/or recorded.” That caveat feels particularly thorny because SAG-AFTRA’s summary doesn’t set clear terms for a threshold of “substantial” changes that would trigger the contract’s mechanisms holding the AMPTP to account.

More clarification from SAG-AFTRA and the AMPTP on how this is all going to work is obviously necessary and likely one of the things the union’s leadership has been discussing with members at informational meetings this past week. But Leipzig also noted that it’s also going to be important for the AMPTP to consider: 1.) the trends around the litigation of AI both in the US and abroad, and 2.) “whether not seeking consent is worth the potential expense and time versus collaboration.”

“There is heightened attention and awareness,” Leipzig said, noting that dozens of countries across the world already have legal frameworks for AI protections on the books that could become the basis of similar legislation in the US. “The incentives are for collaboration and discussion on how to move forward with this powerful generative AI technology.”

Without seeing the actual tentative agreement, it’s impossible to know exactly how any of its mechanisms of enforcement might work, but the summary’s language seems to imply that studios could have a lot of power to unilaterally tinker with actors’ performances in post-production. According to Nicolas Cage, that’s what happened with his cameo in The Flash where he briefly appears as a monster Superman from an alternate reality. While Cage knew that his facial scans would be used to portray the character, he wasn’t aware of the studio’s intention to use the scene as a nod to Tim Burton and Kevin Smith’s canned Superman Lives film — a move Burton has spoken out against.

The summary also notes that while actors would be paid for the initial scan and use of their likenesses, those signed to Schedule F contracts — large, lump sum offers typically offered to film / series leads — would not be paid for subsequent use of those employment-based digital replicas (EBDRs). Whereas the compensation rate for studios’ use of EBDRs would become standardized, the summary explicitly states that with independently created digital replicas (ICDRs), actors would have to negotiate with studios themselves on a case-by-case basis, and the lack of a solid minimum means that those rates could vary wildly.

Even more concerning is the summary’s note that studios would not have to acquire consent from or pay actors to use their ICDRs so long as the project in question “would be protected by the First Amendment,” like projects that would be considered docudramas, biographical works, satires, parodies, criticism, or pieces of commentary.

In an ideal world, it would be hard to imagine a film studio or a TV network greenlighting a project meant to be filled with digital recreations of people who have not agreed to be a part of the thing they’re appearing in. But it would be irresponsible to assume that studios are not thinking about these kinds of things.

There could be many different scenarios in which studios would have the right to use or alter EBDRs and ICDRs at their own discretion, and as actress Kate Bond has pointed out on X, it’s unclear whether different rules would apply to minors and what next steps would be available to performers if their replicas were somehow stolen and used by a third party.

What is clear reading SAG-AFTRA’s summary is that, in instances where actors felt the contract was being violated, the only recourse available to them would be through arbitration for financial compensation after the fact.

And in a statement provided to Bond about what could happen if a performer wanted their EBDR / ICDR to be removed from a project due to the asset engaging in things the actor would not agree to do like nonconsensual nudity or portraying a racist, a SAG-AFTRA representative said that actors would not be able to sue under the tentative agreement “until there is legislation that specifically says you can in the future.”

The biggest takeaway from all of this currently is that there are still more than a few pressing questions about the tentative agreement that SAG-AFTRA’s summary does not answer. Also, it does not appear as if many of the union’s members will be able to see the full document ahead of the ratification vote.

Crabtree-Ireland has acknowledged that this is a concern on people’s minds as the final day for the ratification vote — December 5th — draws nearer. But he has also pointed out that releasing the full text of a SAG-AFTRA labor contract isn’t something the union typically does, and the scope of this particular three-year-long agreement makes it that much harder to get fully in order.

That last point sounds true considering how this contract is meant to codify the rules and regulations regarding the continued deployment of a quickly evolving technology that has already disrupted the entertainment industry. But the “unprecedented” nature of it all is also exactly why SAG-AFTRA’s members should want to have a comprehensive understanding of the deal they’re voting on. We’re in a situation where contract negotiations like this one are moving much faster than the legal protections lawmakers might eventually provide.