Solicitor Tony Morris joins us in the Spotlight studio to talk about artificial intelligence and what performers should know about copyright law and contracts when it comes to protecting their identity and work.
Artificial Intelligence (AI) is developing at an incredibly fast pace and is becoming more prevalent in our daily lives. Whilst AI offers certain creative freedoms, so too does it raise some challenges when it comes to regulation, fair compensation and a potential threat to job security.
As we saw in the SAG-AFTRA strikes in the US, concerns are growing over the increased use of generative AI and other digital technologies by studios to replicate performers’ faces and voices. Provisions were eventually made in the agreement made between the union and the Alliance of Motion Picture and Television Producers (AMPTP) that guardrails the use of AI. In short, studios agreed to gain consent from actors before creating digital replicas of them, and payment should be made to them for such use.
In December of last year, the British government published a consultation paper on copyright and artificial intelligence, proposing changes to the copyright legal framework in light of the scale of growth in the AI sector. In the consultation it was noted that “the rapid pace of AI development and its increasing adoption is undoubtedly challenging for all. All sectors are having to adapt to embrace the benefits of AI and grapple with its disruptive effect. This is particularly true in the creative industries, as highlighted by the debate over AI and copyright.”
Change, it seems, is coming. But what protections are there for performers in the meantime?
Whilst there currently isn’t any legislation in place that specifically deals with artificial intelligence, there are some legal protections for performers to be aware of, and that’s what you’ll find out more about in this podcast episode.
We’re joined by Tony Morris, a solicitor who has worked in the entertainment industry for many decades. A partner at Level, Tony specialises in contractual, commercial, and intellectual property issues. He also happens to be the author of The Filmmakers’ Legal Guide – a non-legal legal guide on how to navigate the complex legal landscape of the film industry. So we thought, who better to talk to on the subject of AI and a performer’s legal rights?
We tackle a number of topics and in the episode such as:
- Understanding copyright for performers
- Legal issues arising from AI’s use of performances to generate other work
- What you can do if your work or likeness has been used by AI without your consent
- Licensing and contract considerations if a performer works on an AI project
- How to safeguard your identity and creative work
- The ethics of AI
- What performers can do to protect themselves in an ever-changing landscape
Take a listen:
Show Notes:
- In response to the question: “If a performer’s characteristics have been used without consent for performance cloning, what would the legal course of action be for them?” Tony would like to add that “Where an unauthorised performance is used online, the performer may issue a takedown notice to the website or hosting company and that may or may not work.”
- Link to the interview mentions with Ben Affleck’s comments on AI and the film industry.
Episode Transcript:
Note: The transcript has been edited to help with readability
Hi Tony. Can you tell us about yourself?
My name’s Tony Morris. I’m for good or ill a solicitor. I’ve been working in the entertainment industry for many decades – I’m not going to say how many! My current specialisation is film and television production. Most of the clients that I work with are producers based in the UK, producing everything from shorts to documentaries to features to TV series. I also occasionally act for some writers, directors, and other individuals involved in the industry. And I work with a firm called Level here in Soho.
So you’re very involved in the industry?
I got into doing the legal aspect of film and music because I was a film and music fan. Although when I qualified in the ’70s, there were very few specialist law firms so I started off in general practice and I just happened to get a client that was making a film that went a bit wrong at the time and they asked me to help him out. I hadn’t seen a film contract before, and there was a bit of litigation and we sorted things out. And then a similar thing happened with music and one client leads to another. And bBecause I was passionate about films and music, I think people were attracted to me for whatever reason and said, “Oh, Tony will sort you out.” So I’ve been sorting people out in the entertainment industry from their legal affairs since the early ’80s.
What’s the current legal framework with regards to protection for performers and their work when it comes to artificial intelligence?
We have copyright, which is a legal right that vests in an artistic literary dramatic work i.e. a film, a book, etc. The copyright will be generally owned to begin with by the author, the author of a film, the writer and the director.
Then performers have rights in their performances. These are rights that are created and guaranteed by statute, the Copyright, Designs and Patents Act of 1988 and it means that a performer is able to control the recording and use of a performance.
What happens in reality, as we all know, is if you’re acting in a TV show or a film, the producer will give you a release, and that release will provide a consent whereby the producer and anyone deriving an interest from the producer such as a broadcaster or a streamer or distributor, can exploit that performance as part of the film or programme for the life of copyright of the film or programme.
We also have moral rights, most usually thought of in terms of the rights of authorship of a copyright work. Because copyright attaches to the work, to the film, to the show, to the play, whatever. Moral rights attach to the author.
Performers have moral rights as well. The two main moral rights that are relevant for a performer are:
- The right to be identified (the right of paternity or maternity as we call it), the right to be effectively credited for the performance.
- The right not to have a derogatory treatment made of your performance.
Then there’s also privacy rights under Data Protection Act and the European general data legislation whereby personal private information may be protected, which can extend to voice, face and likeness. But of course, outside all of that, we also have contracts.
How have you seen AI being used in the world of entertainment and performance?
It’s proliferating at an extraordinary rate. To begin with, there was post-production in editing and CGI characters. We’ve got music generation, visual effects creation, repurposing old content to generate new stories, new dialogues, complete screenplays.
We’ve even got AI generated contracts. I’ve seen one so far, which actually I found quite joyful because people are thinking that lawyers will be replaced, but if this is a standard of material that’s produced, instead of drafting contracts, we’ll be going to court about them because it was very unclear. Be careful if you’re using an AI generated contract.
What’s perhaps of most interest to your members is AI generated actors. And of course there’s a wonderful example of that in Greenwich at the moment, at the ABBA Voyage Show where you’ve got three-dimensional ABBA holograms performing their greatest hits.
All of those things are happening now and coming across my desk to a certain extent.
With the advancement in technology, especially around AI, how is that impacting intellectual property law when it comes to the creative arts?
At the moment, there’s lots of open questions. We’re assessing things on, what I would call, general principles. General principles is what we are taught in terms of contract law and intellectual property law, copyright, moral rights, and Trademarks even.
To go to copyright, the author of a work is usually the first owner. Under English law, in order to be a valid copyright work, the author has to be what’s called a qualifying person: a UK citizen, a citizen of the EA and so on and so forth, but a real person.
They have a similar concept in American federal copyright law. And in a case that went to court in America about 18 months ago, someone created a work using AI and went to register that work at the Library of Congress Copyright Registry, which they have in the states. In Europe and the UK, we do not have an equivalent register of copyright.
When you go online to fill in the form, it says, ‘Who is the author?’ And normally you’d write Andy Bloggs or Frida Smith or whatever, but this applicant put ‘AI generated’. And when he tried to register the copyright, the registrar said no. His decision was upheld because AI is not a qualifying person as it’s not a human being. The inference was that if this creator, whose name was Mr. Thaler, if he’d put Andy Thaler or whatever his name is as the author who’d used AI tools to create the copyright, then he would’ve been able to register it.
The point is, and this is quite fundamental for some of the other things we’re going to discuss, if you’re painting a painting with a paint brush and paints, you’re using a physical item to create that copyright work. If I’m writing a book and I type it or write it, I’m using a pen or a laptop. So the way I see it, AI is a tool that an author can use in creating a copyright. By asserting that the author has used the tool, that in my view, makes that person qualify for the purposes of acquiring a copyright interest.
The next area where there is some legal action is what I call the scraping cases. The first of them was filed a year or so ago – most of the litigation that’s been filed that I’m aware of has been filed in the US – Getty were saying to whichever AI engine they’re suing, you’ve taken copyright imagery that we’ve got up online and you’ve put it into your database. And other people are using that imagery to create new imagery. But our imagery has copyright attached to it. We are the owners of that copyright work, and if you want to use it, pay for it. But at the moment, A) you’ve infringed our copyright by copying them into your database and B) you’re facilitating third party infringements by allowing people to use them.
In the Suno and Udio case, the Recording Industry Association of America, which is a trade body representing the major record companies are suing Suno and Udio who’ve created these machines that scrape music that’s then reused in the same way that the imagery of Getty is used.
Suno and Udio are actually pleading fair use. I’ve read the material that they filed, and it isn’t fair use. What they’re doing is essentially using copyright work and making it available to other people.
Where AI is used to generate or copy a performance that might mimic a performer’s voice style or other identifiable characteristics – how is that going to work? This is going to be of real importance to your members.
Let’s go back to before AI. We know there’s hundreds of millions of things on YouTube and a large percentage of them probably ought not to be up there legally. There’s all sorts of performance clips and whole TV series can be watched. It may be that some of those YouTube channels are authorised, but some of them are not. An actor might see their performance there and think, “well, I haven’t been paid for that.” But what may then happen is that somebody wants to recreate the way a character moves. It might be a bit of choreography and if you are the choreographer, you can have a copyright interest. Equally, if you’re the dancer who performed that choreography, you’ll have a performer’s right in that choreography.
So let’s say [for example] someone’s filmed a clip of Matthew Bourne’s Swan Lake, and there’s five minutes of it up on YouTube. It may well be that some aspiring dancer who wants to make a short video thinks, “I really like the way these dancers move” and copies it. If they’ve made a copy of the whole or a substantial part of an original work, that’s a copyright infringement.
Maybe they then take the Swan Lake dancers and turn them into goblins and elves and put them in a fairyland or a woodland situation with magic spells and whatever. It might be very dark or convey a message that’s very different to what Swan Lake is about. If Matthew Bourne owns the copyright in his choreography, which I would imagine he probably does, he could legitimately say to whoever puts this imitative version of the performance that his choreography has been infringed and his production of that whole scene has been infringed. And the performers may say that it’s a derogatory treatment of their performance because they consented to my performance being filmed and recorded for a particular purpose. And from being a swan gracefully floating across the stage, they’re now an evil goblin, killing goodies or something. That would be a derogatory treatment.
In copyright law, we have a concept of fair use, and it’s a very misunderstood term. There are various fair uses. One of which is incidental inclusion. You may be filming on the street and a car goes by playing a Lady Gaga track – that’s incidental inclusion because the director did not make a directorial decision to include it.
As soon as you make a directorial decision to include a performance, a recording, a little video of a television programme that’s on in the background of the scene, it’s not incidental inclusion. It’s not fair use. So if you’re taking material from, for example, music, audiovisual or a graphic and putting it in your AI production and you’ve decided to include it there, it cannot be incidental inclusion. No fair use.
There’s a fair use of criticism or review. If you’re doing a piece on television about a new show that’s on in the West End and you have a five-second clip and say, “This is a great show, go and see it.” That’s fair use because you’re criticising it and you’re not using an excessive part of it.
And then the other thing, which I think is very important for AI, is parody. Under English law parody, which was introduced under the 2013 Copyright Act, is something that makes a judge laugh, theoretically.
The problem with parody is that when you are doing a parody of something, it’s quite hard to avoid using the whole or a substantial part of the original. So for example, you’ve got these people who make Star Wars films in their garage using a dustbin as R2-D2, and they get a pretty girl with a white dress and put two cinnamon buns on her head and she’s ‘Princess Leia’, and they act out a scene. It’s a parody. But if they’re using the dialogue and the movement, it’s not really a parody, it’s a copyright infringement.
The same principle applies with AI. Once you start abstracting an element of a performance and manipulating it and putting it in somewhere else, if it’s using the whole or a substantial part of that original performance, it’s an infringement. And it might also be a derogatory treatment.
If a performer’s characteristics have been used without consent for performance cloning, what would the legal course of action be for them?
Where an unauthorised performance is used online, the performer may, of course, issue a takedown notice to the website or hosting company and that may or may not work.
Absent that, the worst answer that I can give, but in a way it’s the most significant, is if you’ve got the money to take someone on in a lawsuit, that’s a good start. Litigation is horribly expensive.
Hopefully most Spotlight members, when they’re engaged to appear in a TV programme or a film, will sign a contract. And we always start by looking at what the contract says.
Production companies or broadcasters who are contracting performers will ask them to consent to their voice performance and likeness being filmed and recorded for the purposes of this programme or film so that it may be exploited by all means in all media throughout the world for the life of copyright of the film. If you take a simple example of any TV drama that you care to mention, it will probably say that.
However, suppose we’re looking at a contract that was signed in 1995, no one knew had even conceived of AI. How far would a consent granted in 1995 permit BBC Productions or whoever to start licensing that performance for the purposes of training AI or to be in some production that was outside of the reasonable contemplation of the parties at the time the contract was made? The simple answer is it may depend literally on the language of the contract.
There was a case back in the ’90s, which is kind of similar. As many of your listeners will know, Peter Sellers made a number of films about Inspector Clouseau, Pink Panther series. At the time he died, he was still under contract to do one more. He was gone, but they had lots and lots and lots of clips on the cutting room floor so they stuck them all together and made them into Trail of the Pink Panther.
His estate successfully objected to the exploitation of that film because the consents, as they were worded for the contracts he had signed, were limited to that performance being used in that particular film. So by analogy, if you’ve got some of your members, let’s say they were in Coronation Street in the ’90s, and they signed a consent that was effectively covering the use of that performance in Coronation Street. Subject to the wording, and this is theoretical as I’ve never seen a Coronation Street actor’s contract, would prevent the production company from licensing that material for AI.
So the first thing is what’s in the contract. The second thing, going back to the Matthew Bourne example, it would be a derogatory treatment if a performance for which a consent had not been given, that extended to AI in addition to being an infringement of the performance, it could also be an infringement of the moral right of integrity.
Equally, if that performer is not credited, it would be an infringement of their right to be identified as the author of that performance.
Is there anything performers can do to safeguard their identity and their creative work if they don’t want to be involved in machine learning?
This is where your agents really can come to the fore. Obviously, if you’re a big star, you can say to your agent, “I want a stipulation in the contract that nothing I do, whether it’s on the screen, in outtakes, on the cutting room floor, whatever, will be used for any purpose other than inclusion in the film and trailers and promotion.” I don’t see why any actor, whatever level they’re at, ought not to be able to require that as a stipulation.
For any production company or broadcaster who refuses that, you’d think, why would you not agree to that? And the only reason why they might not agree it is because, [they might be thinking] “If this isn’t great, we can always flog off the footage for machine learning.”
The other thing is to build up a reputation for protecting your rights. Because if someone’s got a choice of using A or B, and A is a known litigator, they’re more likely to go to B. So build up a reputation for protecting your interests.
If a performer wants to consent for their performance to, for example, train an AI algorithm, what kind of licensing should they look into?
It’s a good question and it reminds me of when moral rights were introduced into English law under the 1988 Act. Moral rights are not recognised in the United States and because they’re irrevocable and inalienable in continental Europe, we [in England] took a halfway house approach here you can contract out of them.
For example, in some of the music publishing agreements that I first started seeing in the ’90s, and it’s now pretty standard, the composer would be asked to waive their moral rights. You’d explain to them that meant that their love song could be licensed as a soundtrack for a toilet commercial 20 years later. [To which], they said, “Well, no, I’m not having that.”
So what you have is a list of areas whereby specific consent may be required. For example, I could envisage an actor contract where the performer would say, “I’m happy for my performance to be used for AI training, however, I do not want my performance to be used in a war film, horror film or a zombie film.”
And I suppose you could say, “I will only permit that to be used for the following purposes.”
How you police it is another story.
But as far as English law is concerned, you can put anything in a contract so long as it’s not for an illegal purpose.
What compensation could a performer expect? Any insights into things like residuals, buyout fees etc.
I think you’ve answered the question there. When you look at Equity PACT rate cards, it’s got all sorts of things there about buyouts and residuals and whatever. I suspect that at some point, Equity will come up with some kind of rate card for how this might be used but it’s very early days.
I find it challenging to think about how it might be policed because the whole outcome of an AI production is that it could make things on the face of it unrecognisable so how do you know what it is?
How do copyright and royalties work if the performance is used with consent?
Well, and that’s a matter of contract and that would be standard. Well, all the contracts that I see have got a set of rates that performers will be paid in certain circumstances. The bigger problem is what happens where there’s an infringement, where the content is used without permission [to create something else].
I’m back to general principles. Where you have an infringement, the party seeking damages will be entitled to claim for the loss of profits, which doesn’t really happen. Or certainly in copyright cases, what a willing licensor would’ve expected from a willing licensee. In other words, if you had legitimately applied to use this material from the copyright owner, how much would the copyright owner have charged you? How much would the performer have been entitled to receive for providing this performance? And that’s really a market question.
I’ve had cases, for example, one in particular where permission was sought to use a 30 second clip of a vintage television performance of a musical artist that was owned by my client. And my client said, “Yeah, you can use that 30 seconds but I want £15,000 pounds” or whatever. The production company never followed up. They included the material and it was seen at an American film festival.
Because the film was shown in the US, the infringement proceedings were brought by my client in the US. His US attorney filed proceedings in LA where it was fraud and all these American things, and it cost the insurers a considerably larger sum than what would’ve been the case had they just paid the licence fee in the first place.
Going back to your question, if the performance is used here, we would’ve paid an extra £1000 [for example]. In America, “oh, they’ve damaged me this way and that way.” So the answer is, we’ll see what the courts say.
At the moment I can’t see statutory legislation coming in in the sort of detail to cover all these things that you and I are discussing. I can’t see it happening very soon because the whole field is developing so quickly, it’s hard to pin it down.
What are your thoughts and concerns about the ethics around AI generated content?
I think people of my generation might look at it differently from an ethical point of view, from someone who’s being born now. Someone who will have grown up having had an iPhone from the age of three, and just accepting AI as part of their life. Ethically, they will have a different set of standards to the set of standards that has informed the development of copyright law, moral rights law over the past 50, 80, even 100 years. Where you’ve got this concept of a creator being very much droit d’auteur, as per the French conception, where the author’s rights are paramount.
We’re in a different era now. If you’d gone back to 18th century France when they were talking about droit d’auteur and explained what the future was going to be. I mean, they wouldn’t have been able to get their heads around it.
So ethically, I think standards will change, and I think because it’s going to be very difficult. Absent the development of all sorts of tools in the future to police this, I think some of the ethical standards of today will fall away.
I imagine perhaps AI can be trained, so it could come in here and it would film and record you standing up, sitting down, moving your voice, your expression, your laugh, the way you cough, sneeze, clear your throat, whatever. And likewise, me. And this could be put into a database and you could match, “oh, there’s a match for Kristyn in this advert for Mars bars or something from 2039” or whatever. So maybe a tool will be developed that will enable individuals to more effectively police it. Ethically, I think there will be a shift in standards whereby more will be acceptable.
I’ve had clients for years coming in and saying, oh, look, they’ve done this, or they’ve used that, and you write a letter or you might get something taken down. But it’s often finger in the dike stuff, I mean, there’s a flood behind the wall.
There’s too much going on. I’ve particularly found that to be the case on the music side with sampling, whereby there are particular tracks where I’ve represented the writer or the recording artist or whoever that get sampled over and over and over and over again. And unless it’s a big track, it’s impossible to keep track of. You used to get a musicologist to do an analysis of the track but now you’ve got this spectral analysis whereby they put the track through a wave thing and they can see which is the same. So maybe that can be done with performances as well.
Ben Affleck did an interview with CNBC and he was asked his opinion on whether AI was a benefit or a threat. His opinion seemed to be that AI won’t replace actors and actor interaction on screen, but it will affect how we make films in the future, for example, the visual effects process being speeded up.
How do you see AI shaping the future of the entertainment industry? And is there anything that performers should be aware of as they navigate the new landscape?
I completely understand why Ben Affleck would say that. But he’s of an age where he’s been in films for years and comes from a different generation to the next generation.
Budgets are being squeezed. Why would a 10-year-old, who’s going to be 25 in 15 years time, not think ‘Why do I need to go out and try and find a million pounds and get this actor?’ And ‘I’ve written this screenplay with a bit of help from AI. I can create my actors on screen. I can digitally do this, and I can do the whole thing for £250 quid plus a few hours’. Why will that not happen? I’m not saying it’s going to be any good!
I was thinking, well, what has happened thus far which would be an example? And I thought of the ABBA Voyage show. So I went around the office and I said, “Has anybody seen the ABBA Show?” So one of the staff said, yes and I asked if she enjoyed it. She said, “I loved it, but it’s not as good as the real thing. It was a great experience but given the choice between seeing that and a very good live act. I’d rather see the live act.”
Would I go and see a 3D show? Maybe, and I would look at it and enjoy it or not on the basis of what it was, but I wouldn’t try and compare it to a live show because it’s not the same thing. It’s like comparing, watching a movie at home on TV and going to an IMAX.
If it’s Star Wars, you go and see it in IMAX, even if you’re not a fan, you’re going to love it because of the experience. Whereas on TV, you can just switch it off.
I’m not going to say, in my humble opinion, which is worth nothing anyway, that AI will replace cinema but I do think people will make complete AI films. If you can make ABBA 3D and real, they’ll be able to create totally AI generated characters, scripts, landscapes, scenarios, storylines. And I reckon that will happen.
There will be a point in time where future generations may not care. You and I might say, well, “no, do I want to go and see AI or Ben Affleck doing whatever film he’s in? I’d rather go and see Ben Affleck” because you and I have been going to the cinema for X years.
Another generation may think differently and that I think is the key to understanding the answers to all these questions because we’re looking at them now on the basis of having 20, 30 whatever years experience of working in the industry. Whereas people growing up now, It’s not a shared experience, so they’re going to look at it differently.
How do you see the law evolving in this area?
The answer is that at some point, there will be industry bodies who are going to lobby for some kind of legislation. But what does that legislation look like and what is it going to do to protect?
Do you think it’ll come down to there being a case being brought in the UK that will frame the legislation or do you think it might happen before that?
There’s a lot of litigation in the states and although we do not follow their jurisprudence, a lot of it will be based on principles that would be recognised and applied here. I found 24 or 25 cases that have been filed in the US in the last 12 months on AI.
And on a final note, I know you have a book out, would you like to introduce it to our listeners?
The book is called The Filmmaker’s Legal Guide – Third Edition. I’ve been lecturing at film schools for a long time on basic legal stuff for filmmakers. The basics they need to understand about contracts and rights and I kept getting asked at the end of sessions if there was a book which had all this useful stuff in it. I looked around and there were these voluminous legal tomes of a thousand pages with little tiny print that were published in America, but there was nothing in England under English law. So I wrote the book, and although it’s a legal guide, it’s written for producers and filmmakers rather than lawyers. It’s not a legal tone and it’s descriptive of many of the legal aspects that are required. Writers, performers and directors buy it as well, I know because I get the feedback.
Thanks to Tony for being part of The Spotlight Podcast and sharing his expertise with us.
About Tony Morris
Tony advises clients in the Media and Entertainment sectors, with a focus on the Film, TV, and Music industries. With many years of experience, Tony specializes in a wide range of transactional and contentious matters, particularly emphasizing contractual, commercial, and intellectual property issues. Tony is also the author of The Filmmakers’ Legal Guide – a practical ‘how-to’ book designed to assist with navigating the complex legal landscape of the film industry.
Tony is a partner at Level, a market-leading media, entertainment and sport law firm. Level’s Film & TV lawyers act for some of the most respected names in the industry and have even earned a mention in the credits of several films. The team is further boosted by Level’s wider team of reputation management, media rights, and disputes specialists. Find out more about Level’s Film & TV team here – https://level.law/sectors/entertainment
