Robots vs. Lawyers: How Entertainment Law Will Navigate the Future with Generative A.I.

Generative A.I. has triggered feverish debates about the future, especially among professionals and thought leaders in entertainment, media and gaming. While optimism surrounds the potential of generative A.I. in creative industries, three practical concerns have risen to the forefront, which will inevitably require legal solutions by lawyers, courts and lawmakers:

1. Protection of Authors' Rights

Generative A.I. models often ingest materials available on the internet, potentially conflicting with traditional intellectual property (IP) laws such as trademark, copyright and rights of publicity. Authors of creative works seek clarification on whether their exclusive rights extend to the content these models train on and generate.

Multiple class action lawsuits have already been filed in federal district courts against Open A.I. and Meta for their large language models’ alleged ingestion of copyright-protected comedy routines, including those authored by Sarah Silverman, and novels such as those authored by Michael Chabon.

To resolve these cases and balance the interests of A.I. innovators and rights holders, courts and lawmakers need to determine if generative A.I. trainers, providers, and users:

• Must obtain prior permission and consent from human authors before using their work for training models.
• Are able to invoke the fair use defense against infringement claims.
• Must employ a new mandatory licensing structure akin to how ASCAP and other royalty clearing houses handle the performance of sound recordings.

Striking the right balance is crucial to prevent stifling the utility of generative A.I. models or infringing on the rights of human authors.

2. Impact on Labor

It is a tale as old as textile mills, but yet again, many industries are grappling with a technological revolution that may render certain jobs obsolete through automation.

The entertainment industry faces potential job obsolescence due to generative A.I.'s ability to replicate complex and creative output. Collective bargaining and labor actions are underway in Hollywood, addressing concerns regarding fair compensation amidst the growing utilization of A.I. tools to generate written materials and performances. As expressed by their unions and counterparts:

• Writers’ Concern: potential loss of paid writing positions due to A.I.-authored content
• Writers’ Solution: excluding non-human generated writing from receiving credit and compensation as “literary material” or “source material”
• Actors’ Concern: the creation of ‘digital replicas’ of actors and their performances without proper compensation and control
• Studios' Proposal: implementing a compensation scale and licensing contract for actors regarding the use of their digital replicas.

Collective bargaining along with labor action could pioneer legal precedents ensuring fair compensation for workers affected by generative A.I. Hollywood's recent labor fervor will leave a lasting mark on regulations set by public entities, shaping wage and hour laws and labor guidelines. This will serve as a tangible model for other industries looking to self-regulate the integration of generative A.I. tools into their workforce.

3. Challenges for Users

Generative A.I. rapidly creates and refines highly realistic content—audio impersonations, digital characters, code snippets, and 3D environments. However, in the entertainment industry, the resulting products lack the exploitable nature of purely human-authored works for various reasons.

Besides concerns about intellectual property liability mentioned earlier, additional constraints are evident:

• Recent U.S. Copyright Office rulings state that wholly generative A.I. creations are not copyrightable by the user, thus denying users exclusivity in use.
• Video game developers using generative A.I. content have faced distribution restrictions on major platforms like Steam due to liability concerns.
• Recording artists utilizing A.I.-generated voices in chart-topping songs were disqualified for Grammy awards.

Why It Matters

These limitations and similar obstacles potentially discourage widespread commercial adoption of generative A.I. Lawyers need to evaluate clients' risks in employing A.I. until further guidance or laws are established. While major tech companies like Microsoft offer broad indemnification plans for cautious A.I. use, not all technology custodians are keen on insuring expansive A.I. uses. The legal landscape must evolve to elucidate risks for A.I. users, decreasing legal uncertainty and clearing the way for widespread deployment.

Addressing these challenges necessitates the development of a legal framework that embraces the benefits of generative A.I. while safeguarding the interests of all stakeholders in the entertainment industry. An urgent and meticulous approach is essential, and until then, entertainment lawyers remain indispensable.