Interplay between image and likeness rights and AI central to gaming actor strike and newly proposed legislation

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Last week, for the second time ever, members of the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) in the gaming industry (e.g., voice actors and motion capture artists) voted to strike based on stalled negotiations between the union and multiple gaming companies.[1]Some of the industry giants involved include Activision, Disney, Electronic Arts, Epic Games, and more.

In many ways, this strike mirrors the SAG-AFTRA film and television actor strike that lasted almost four months in 2023.[2] Most notably, the use of artificial intelligence (AI) remains a huge sticking point for actors in both industries. The final impasse between the gaming companies and the actors relates to protections against “exploitative uses” of AI. In particular, voice actors and motion capture artists are requesting protections against uses of their images or likenesses without fair compensation.

Under tort law, each individual has the right to control the commercial use of their identity (sometimes called the “right of publicity”). One way in which this right manifests is in the right to profit from one’s own identity (e.g., name, image, or likeness). Further, these rights can be transferred from one individual to another or from an individual to a company (e.g., in exchange for payment). Obviously, current AI technologies can reproduce an actor’s image or likeness with ease. For example, a generative AI (GenAI) model could be trained using an actor’s work on one game and then used to generate new content (e.g., new voice lines) for a future game. Hence, absent industry-wide protections, contractual negotiations between individual actors and gaming companies could devolve into a veritable race to the bottom. For instance, standard contracts for acting jobs could require that an actor provides a perpetual, royalty-free license to the game developer to use an actor’s image and/or likeness (e.g., within a GenAI model) after the completion of the acting job. As a result, SAG-AFTRA would likely prefer to prevent these types of uses of GenAI altogether or, at the very least, ensure that adequate ongoing royalty payments are required when reproducing an actor’s image or likeness in future projects.

Separately, members of the U.S. Senate have also recently taken notice of the potential for AI to threaten individuals’ protections of their own images and likeness. This week, Senators Coons, Blackburn, Klobuchar, and Tillis introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2024.[3] According to the press release from Senator Coons, “[t]he NO FAKES Act would hold individuals or companies liable for damages for producing, hosting, or sharing a digital replica of an individual performing in an audiovisual work, image, or sound recording that the individual never actually appeared in or otherwise approved – including digital replicas created by generative artificial intelligence (AI).” In this way, the NO FAKES Act essentially transmutes rights of publicity into alternative forms of copyright. Somewhat interestingly, the NO FAKES Act has received support from both SAG-AFTRA and The Walt Disney Company (two entities that are on opposite sides of the strike negotiations described above). Fran Drescher (president of SAG-AFTRA) said of the bill, “[f]or SAG-AFTRA members, the NO FAKES Act is especially important since our livelihoods are intrinsically linked with our likenesses.” Likewise, The Walt Disney Company noted that “Disney is pleased to support the NO FAKES Act, as introduced, which ensures important and meaningful protections for individuals against misuse of their image and voice through new AI technologies.”

As is clear, in addition to more traditional copyright protections, AI is revolutionizing the way industries think about image and likeness rights. I suspect the discourse in this space will continue to evolve as rapidly as the AI technology undergirding the discussions.

[1] https://apnews.com/article/sagaftra-video-game-performers-ai-strike-4f4c7d846040c24553dbc2604e5b6034

[2] https://en.wikipedia.org/wiki/2023_SAG-AFTRA_strike

[3] https://www.coons.senate.gov/news/press-releases/senators-coons-blackburn-klobuchar-tillis-introduce-bill-to-protect-individuals-voices-and-likenesses-from-ai-generated-replicas

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

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