Tilly Norwood and AI confusion will shape looming union talks, say top copyright lawyers
In looming contract talks between Hollywood studios and unions, confusion over artificial intelligence and the issues raised by the debut of artificial actress Tilly Norwood are sure to be major topics.
“The negotiation cycle has begun, and the DGA will likely negotiate its contract within a month,” said Jonathan Handel, an entertainment and technology attorney at Feig/Finkel. SAG-AFTRA and the WGA are also heading into negotiations before their existing contracts with studios and streamers expire in mid-2026, with the wounds from the double whammy of 2023 barely healing.
Handel added that Norwood, whose arrival last month sparked an industry storm, “is a tough situation, and the union didn’t get anything on fully synthetic characters in the last round. So maybe they will get it this time.”
Handel and Mishon Nolan, managing partner of intellectual property law firm Nolan Hyman, shared their perspectives during a panel discussion Friday afternoon at the Infinity Festival in Los Angeles.
The lawyers agreed that digital scanning of human actors, for the purposes of using their images in film and television projects, is another difficult area for unions given how untested the legal questions are.
“I actually have a client now,” said Nolan, whose body is being scanned. “What I received [from the company] It was just some kind of standard participation certificate. It was All rightsjust as you normally use. So I said, “Okay, what are you going to do with the data?” What is the scope of use?
Nolan said that because of the intense pressure on production companies to move quickly, “everyone wants to change course [a talent agreement] Tomorrow.” But she said the complexities of copyright issues raised by artificial intelligence, which is evolving at breakneck speed, require a lot of thought. “The way we’ve always done business can’t be done in the future. She continued: “It can’t be done immediately. You have to take a moment and think, what are you doing? What are you capturing? What are you going to use it for? How are you going to use it? How long are you going to have access to it? What happens in the long term? And who is holding on to it? Is it safe? Will it be destroyed?”
Handel said screening human actors “is very much indicative of what SAG-AFTRA negotiated” in its last contract, and insisting on data destruction is not necessarily a solution. “Twenty years from now, a company might say to a celebrity, ‘You know, we really want to reboot this thing as you get older, but the ideal de-aging is actually data from when you were younger.’” “And celebrities might say no, or celebrities might say: ‘Hey, that’s great, more money for me, and I’ll restart my career.’ And then they say: ‘Oh my God, the talented lawyers insisted on getting rid of the data.’ So we don’t have the data anymore. But on the other hand, you don’t necessarily want the production company or the studio to have the right to store the data indefinitely.
Another confusing area is the body of unproduced scripts that studios and streaming companies own the rights to publish. Handel said it could be used to train artificial intelligence models. “The Union agreements, two or two and a half years ago, did not address the following question: What about the retroactive effect?” This may come in the current situation. It’s going to be very difficult because, you know, it’s obviously a huge potential source of revenue for companies, but it’s also something that, well, well, if you’re going to do it, just like when you reboot a movie, you have to pay the residuals.
Handel and Nolan point out that using generative AI tools in production is also problematic. There are different copyright issues facing input (text submitted to a model like OpenAI’s Sora, for example) and output (video produced as a result).
“The problem and confusion is that technology and workflow have advanced so quickly and will continue to advance,” Handel said. There can be hundreds of claims, and revisions to the claims, resulting in video sequences with some resemblance to the protected work, but sometimes the eye is in the beholder. “That will at some point force more nuanced decisions from the court, and it will be very difficult to know where the line is?” He said.
Media giants like Disney, NBCUniversal, and Warner Bros. Discovery is suing several AI operators in order to enforce their copyrights. OpenAI’s Sora 2, introduced less than two weeks ago, has generated an uproar that some stakeholders believe will only subside once lawsuits are filed there as well.
All of this adds up to a business environment characterized by profound uncertainty, Nolan said.
“The way I’ve operated over the last year, the last five years, the last 10 years, you can’t assume that this is the business environment you can operate in moving forward,” she said. “A lot of the foundations and assumptions that you were relying on, you can’t rely on moving forward.”
One example of this is the tried-and-true staple of all contract law: the multi-year agreement. “How do you do a five-year deal when the law and technology will be different next week?” Nolan asked.