Artificial Actors: AI’s Erasure of Talent

by Johnathan Khoriatyin Forumon Posted on

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From galaxies far, far away to places where no one can hear you scream, for over one hundred years audiences have used films to explore the vast multiverse of possible realities. A century later, the film industry has used its productions to create almost every world and situation an audience could ever hope to experience. These films have been used to create multiple billion-dollar industries that serve a variety of roles. These industries include production studios, distributors, movie theaters, and streaming services, all of whom take massive shares of the revenue that films generate. To a lesser extent, the people involved in the actual making of a film also share part of this revenue, although each receives a much smaller portion of it. This includes directors, producers, editors, and, of course, actors. This share of the revenue is potentially the most vital part of the economics behind Hollywood, as without the individuals who create the movies themselves the billion-dollar industry that Hollywood is could not exist.

In 2023, just as the film industry appeared to be recovering from the impacts of the COVID-19 pandemic, tragedy struck again. After months of failed negotiations, the Screen Actors Guild – American Federation of Television and Radio Artists, along with the Writers Guild of America, went on strike, halting the production of most films. Part of the contention during the negotiations for both the actors’ and writers’ strike was the studios’ use of artificial intelligence during the production of films. While both guilds were eventually able to come to agreements with the studios and end their respective strikes, artificial intelligence remains a topic hanging over Hollywood’s proverbial head.

This Note starts by looking at artificial intelligence technology and how it is currently being used to harm film industry workers. It then examines the protections that films currently receive under copyright law before examining the specific rights those protections grant film studios. This Note goes on to critique the current state of the law surrounding the use of artificial intelligence to recreate performers, suggesting that it currently does too little to protect performers. The Note instead advocates for protecting performers by making a few simple changes to the definitions section of the Copyright Act. Specifically, this Note proposes altering the definition of “collective works” and adding a definition for “author” under section 101 of the Copyright Act. It then concludes by exemplifying why these minimal amendments to existing copyright law can permanently provide performers with protections against being exploited by studio use of artificial intelligence.

Contents hide
Introduction
Evolving Technology: Generative AI
Generative Artificial Intelligence
Generative AI in Films
Copyright Law in the Film Industry
Rights Copyright Holders Are Granted
Copyright in Films
The Current State of Actors’ Rights
Right of Publicity Laws
Contracted Rights
Proposals for Stronger Protections
The Case to Extend Copyright Law to Performers’ Image and Likeness
Exisiting Copyright Law Proposals
The Case for Section 101
Conclusion

“If they can do this with actors, they can do it with writers, directors, cinematographers — everyone. We’ll be replaced with Frankenstein spoonfuls of our own work.”

– Justine Bateman, Filmmaker.[1]

Introduction

Actors play a vital role in the success of a movie. They are generally the most recognizable part of any film. If you ask the average moviegoer what they think of when you bring up 2023’s Barbie, it will almost certainly be Margot Robbie’s “Barbie.” Likewise, if you ask the average Marvel Cinematic Universe (MCU) fan what they picture when it comes to the MCU they will likely answer either Robert Downey Jr.’s “Iron Man” or Chris Evans’s “Captain America.”

The level of recognizability that certain actors have is vital to the success of the film industry. Actor recognizability often leads production studios to hire specific actors to maximize the potential profits of their films. For example, in September of 2021, Universal Pictures tapped film industry superstar Chris Pratt to play the lead in The Super Mario Bros. Movie.[2] Even though there are less expensive voice actors that Universal could have picked for this animated role, they decided to go with star power for the titular role of Mario. Universal bet that picking a recognizable actor would help maximize the movie’s revenue, which it did to the tune of the film earning over $1.3 billion at the worldwide box office.[3]

Even with their vital role in the success of the film industry, production studios seem to lack the requisite respect that actors deserve based on their contribution to the industry. The latest example of this was the 2023 Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) labor strike. This strike highlighted how actors are routinely underpaid for their contributions to the films the production studios produce. Even more alarmingly, the strike also proved that the evolution of technology in recent years has moved production studios toward replacing certain performers altogether.[4]

While the strike negotiations partially focused on actors’ desire for improved compensation and working conditions, a significant point of contention between the parties surrounded the rise of artificial intelligence (AI).[5] Over the past decade, AI technologies advanced considerably and are expected to continue progressing—both in potential uses and in ease of access.[6] While this rise of AI utility may be beneficial to some industries and professions, it has been more worrisome than anything to actors and performers.[7] For example, in an open letter to SAG-AFTRA leadership, union members expressed concern over AI exploiting performers by using their likeness without fair compensation.[8] The union members made clear that the negotiated SAG-AFTRA agreement needed to protect performers’ likenesses and compensate them fairly when their work is used to train AI.[9]

On November 8, 2023, 118 days after the strike began, SAG-AFTRA tentatively approved a deal with the studios’ alliance, the Alliance of Motion Picture and Television Producers (AMPTP).[10] This agreement increased actors’ pay in various ways and introduced some protections for actors against studio use of AI.[11] The provisions of the agreement achieved many of the goals the union had when it began the strike; however, it was not a complete success for the SAG-AFTRA union.[12] SAG-AFTRA officials acknowledged this fact, stating that the agreement was a major win even if it did not achieve everything that they asked for.[13]

In general, actors have less financial ability to survive these prolonged strikes when compared to the billion-dollar studios that produce and distribute the actors’ work. In May 2024 the U.S. Bureau of Labor Statistics found that the median actor’s wage was $49,500 a year.[14] Considering the Bureau’s estimate that there were 57,000 actors at the time, that means that actors as a whole made an estimated $2.8 billion in 2024.[15] In comparison, the five major film studios[16] made roughly $16.6 billion at the worldwide box office in 2024.[17]

As a result of the relatively minimal amount of money the average actor makes, it is unreasonable to believe that actors could survive another prolonged work stoppage anytime soon. However, as things currently stand, if studios decide that they have a use for AI in 2026, there is no protection against another prolonged strike.[18] This is because the current SAG-AFTRA agreement expires again in 2026.[19] This short timeline highlights the fact that SAG-AFTRA will potentially have to go through another round of negotiations centered around AI not long after the first time.

As a result of the ever-growing threat that generative AI poses to actors, as well as the financial threat of another prolonged strike, a permanent solution is required to protect actors’ rights to their image and likeness. That is why this Note proposes a permanent, national solution to the aforementioned issue by recommending minor amendments to federal copyright law. In Part I, it introduces generative AI and explores its use in the film industry. Part II provides an overview of copyright law, specifically addressing how copyright protections apply to the film industry. This Part also explains the specific rights that are currently granted to production studios, and could be extended to performers, for their films. Part III goes on to examine where image and likeness protections for performers currently stand in United States law, focusing on contract protections, state “Right of Publicity” laws, and proposed federal law. Part IV closes this Note by explaining that while the previously mentioned types of law offer some protections, the Copyright Act should be amended to more effectively protect actors and performers from AI. Specifically, this Part recommends that Congress provide performers with copyright protections by expanding section 101’s definition of “collective works” and clarifying the meaning of “author” by adding a definition. Part IV ends by exploring why these changes to section 101 could realistically be accomplished, and why they would be effective in accomplishing the ultimate goal of protecting performers from generative AI.

Evolving Technology: Generative AI

When the average person mentions artificial intelligence they often conflate a number of different technologies, including some that do not qualify as AI.[20] Coupon generators, online ad matching software, standard chatbots, car diagnostic systems, and the Internet of Things[21] are all wrongfully assumed to be AI.[22] Instead, “artificial intelligence” actually represents a field of computer science aimed at creating machines capable of performing tasks that would otherwise require human intelligence.[23]

Today AI is able to learn from experience, understand natural language, recognize patterns, solve problems, and make decisions.[24] AI’s capabilities enable it to serve as virtual assistants, drive automated cars, make university admission decisions and loan determinations, and much more.[25] This variety of uses is expected to expand for the foreseeable future, as people working in the field do not expect AI’s progression to slow down anytime soon.[26] As a result, AI may make it easier for bad actors to invade others’ privacy or otherwise take advantage of AI for other “nefarious purposes.”[27] Additionally, AI techonologies may replace a large number of jobs currently occupied by humans.[28] Because of the continued progression AI is experiencing, there is reason to believe it will evolve to further impact people in negative ways.

Generative Artificial Intelligence

Machine learning is part of what makes AI a unique and potential societal-altering technology.[29] Unlike traditional computer programs that follow a specific set of predetermined instructions, machine learning[30] gives AI systems the ability to learn and adapt on the fly as they intake data.[31] This learning and adapting ability enables AI to behave similarly to how a human would by improving its performance over time as it is introduced to more information.[32]

The significant progression of AI systems over the last decade has created many new technologies.[33] One of the more recent AI creations is Generative AI programs.[34] Generative AI represents the field of artificial intelligence that has the ability to create various forms of new content, including audio, code, images, text, simulations, and videos.[35] This technology relies on sophisticated machine-learning models to create new content at a user’s request.[36]

Generative AI programs often operate in three phases: training, tuning, and optimization.[37] The training phase exposes the model to vast amounts of data to help it learn to recognize patterns and features within the data.[38] The next phase, tuning, takes the trained generative AI model and tunes it to a specific content generation task.[39] The final phase of optimization consists of developers and users assessing the outputs of a specific generative AI program for greater accuracy or relevance and updating the program as necessary.[40]

Generative AI in Films

Protections against AI served as a major emphasis of the SAG-AFTRA strike because generative AI usage can be seen all over the film industry.[41] While filmmakers do not advertise it, the majority of film production departments have embraced generative AI.[42] Usage of this technology can be observed in areas of filmmaking such as writing, storyboarding, animatics, pre-visualization, B-roll footage, editing, visual effects, and translation/subtitling.[43] Hollywood’s usage of AI has already replaced numerous jobs in the industry, to the extent that some industries in filmmaking may not survive much longer.[44]

One example of generative AI use in the film industry can be seen in IFC Films’ 2023 production Late Night With the Devil.[45] This horror thriller found itself in controversy after it used AI to create images for title cards, which are used as part of the fictional talk show the film centers around.[46] The directors of the film defended this use of AI, claiming that it was only used “for three still images” that were further edited by the film crew and only appear briefly in the film.[47]

The bigger issue here is that Late Night With the Devil is not the only recent example of studios using AI to create images for their film. A24’s action-thriller Civil War also employed generative AI in the production of the film.[48] In the marketing of Civil War, A24 released five AI generated posters of different cities destroyed by a fictional war.[49] While A24 did not advertise that the posters were AI generated, the glaring mistakes in the images made it relatively obvious that they were generated by AI.[50] Specifically, the posters contained incorrect images of landmarks in American cities, cars with only three doors, and random images of giant animals, all of which pointed towards them being AI generated.[51]

AI usage in the film industry has also begun to impact actors. For example, Tom Hanks was de-aged using generative AI in Robert Zemeckis’ film Here.[52] In Marvel’s Captain Marvel, Samuel L. Jackson was similarly de-aged to play a younger version of “Nick Fury.”[53] Harrison Ford received comparable treatment in Lucasfilm’s Indiana Jones and the Dial of Destiny. Disney has even purchased the rights to James Earl Jones’s voice so they can recreate his “Darth Vader” voice indefinitely using generative AI.[54]

These examples of AI use in the film industry set a precedent that could be incredibly damaging to the employees of the film industry, including actors. In the cases of Late Night with the Devil and Civil War, they replaced otherwise negligible costs associated with hiring somebody to draw the poster with AI.[55] At least one person in the film industry, Polish director Besaleel, believes it will eventually employ only lead and supporting actors “while the entire world of background and minor characters will be created digitally.”[56]

This exact impact on actors can be seen by taking a closer look at the AI de-ageing technology used in a movie like Here. In that case, de-ageing Tom Hanks took a job away from another actor who would have otherwise played the younger version of his character.[57] Likewise, using AI to recreate James Earl Jones’s “Darth Vader” voice takes jobs away from all other actors that could play the character.[58] In fact, studios have already started setting the table to replace background actors with generative AI.[59] Perhaps most hypocritical about the situation is that while actors were forced to go on a prolonged strike to gain protections against this AI exploitation, the billion dollar production studios largely avoided the issue thanks to copyright law.

Copyright Law in the Film Industry

Copyright law is a form of intellectual property protection granted to “original works of authorship fixed in a tangible medium of expression.”[60] In the context of the film industry, copyright protection is granted to various aspects of a film, with the production studio usually being the owner of the copyright.[61] These protections often serve as a very powerful shield against infringement for the copyright.[62]

Under section 102 of the Copyright Act, literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and audiovisual works, sound recordings, and architectural works are granted copyright protections.[63] While it may not be obvious from the plain text of section 102, the two primary requirements for a work to be copyrightable are originality and fixation.[64] Originality requires that a work be independently created and that it not be copied from another work.[65] This is an incredibly low bar with the only requirement being that a work possesses at least a “modicum of creativity.”[66] On the other hand, the fixation requirement requires that a work be fixed in a “tangible medium of expression.”[67] This requirement is met when a work is “sufficiently permanent or stable to permit it to be . . . reproduced, or otherwise communicated for more than a transitory period.”[68]

Rights Copyright Holders Are Granted

Copyright holders are granted a variety of different rights, most of which are laid out in section 106 of the Copyright Act. These rights include the rights to reproduce the copyrighted work, to prepare derivative works based on the work, to distribute the work, to perform the work, and to display the work.[69] The justification behind granting exclusive rights to the copyright holder is that “copyright law serves public ends by providing individuals with an incentive to pursue private ones.”[70] The rights explored in this Note are the central rights that a copyright holder receives: the reproduction right, the distribution right, and the right to prepare derivative works.[71]

The reproduction right gives copyright holders control over the making of copies of their copyrighted work.[72] If a person makes an unauthorized copy of a copyrighted work they are infringing on the copyright holder’s reproduction right.[73] In order to infringe on this right, a copy must be fixed such that it is embodied in a fixed medium for more than a transitory duration.[74] However, if a copy is found to be infringing, the author of the copy can claim that their use is a “fair use” which, if they are correct, exempts the otherwise infringing use.[75] In the context of the film industry, production companies retain the right to show their movies or to otherwise create copies of their film, although this right is subject to the fair use doctrine.[76]

Another right that production studios receive with copyright protections is the distribution right.[77] This right gives copyright holders control over the means by which a work is transferred to others, whether by sale, rental, lease, or lending.[78] The distribution right allows owners to prevent the distribution of unauthorized copies of a work and allows them to control the unauthorized distribution of otherwise authorized copies.[79] In the film industry, this right gives production studios control over distribution of their films, whether it be over streaming, physical media, or theatrical releases.[80]

The right to make derivative works is another vital right granted by copyright law. This right grants copyright holders control over any modifications or adaptations of their copyrighted works.[81] Examples of derivative works can include “annotating, editing, translating, modifying or making other types of changes” to the copyrighted work.[82] In the context of the film industry, derivative works include making sequels and other adaptations of copyrighted films.[83]

These rights are further strengthened by the rather long period of time they are granted for.[84] While there is a storied history regarding the duration of copyright protections, today the average copyrighted work is given protections until seventy years after the author of the work dies.[85] In the context of production studios, duration of copyright protections for works made for hire lasts for ninety-five years after publication of the work or 120 years after the work’s creation, whichever comes first.[86] While these duration rules might not be favored by everybody,[87] the duration of copyright protections are a vital part of the United States’ copyright scheme.[88]

The rights granted by copyright law, as well as their duration, make copyright protections an incredibly powerful tool for creators.[89] These protections are key to American innovation, creativity, and culture.[90] Copyright also plays a crucial part in American knowledge production and individual expression.[91] Exemplifying this, in 2021 it was estimated that the core copyright industries accounted for $1.8 trillion of the U.S. GDP, representing 7.76 percent of the total economy.[92] The specific protections that studios are granted under the law as copyright holders are vital to understanding why copyright law could be an effective way to protect performers from generative AI.

Copyright in Films

In the context of the film industry, copyright grants protections to any aspect that constitutes the expression of the film but not the underlying ideas.[93] The aspects that gain protection under copyright law include camera work, dialogue, sounds, and other similar aspects of a film.[94] However, copyright generally does not protect the idea or concept behind a film, or the characters portrayed in the film.[95] These protections for films were not added to the list of copyrightable subject matter until 1912 when Congress recognized that films were valuable assets that needed legal protections under copyright.[96] Congress extending copyright protections to motion pictures was in direct response to the changing technology of the time.[97]

Once a work is found to be copyrightable,[98] ownership must be allocated. Section 201 of the Copyright Act lays out the allocation of ownership in a copyrighted work.[99] Subsection (a) clarifies that initial ownership goes to the author(s) of a work.[100] Works made for hire are the topic of subsection (b), where it grants copyright ownership in works made for hire to the employer or the “other person for whom the work was prepared.”[101] For purposes of this Note, subsection (c) is by far the most important ownership allocation.[102] This section specifies that for a collective work, copyright in each individual contribution is a separate copyright from the copyright in the overall collective work.[103] This means that initial ownership for each contribution vests in the author of that specific contribution.[104] Because of this, the owner of that contribution is granted all rights typically associated with copyright protections.[105]

With motion pictures, the work for hire doctrine is vital in determining who owns copyright protections in a film. In a production studio’s “work for hire” agreement, contributors to a film do not own any part of the film.[106] This includes directors, actors, set designers, and any other contributor to the production of the film.[107] Instead copyright protections are granted solely to the production studio under “work for hire” agreements.[108] However, even in the absence of a “work for hire” agreement, courts have held that the copyright protections still belong to the production studio behind a film.[109] In contrast to the strong protections copyright owners are granted, the lack of protections actors currently receive for their image and likeness highlights why giving them copyright protections is necessary.

The Current State of Actors’ Rights

Even with the large variety of works that are protected under copyright law, the performances of actors are not; the Ninth Circuit stated as much in Garcia v. Google.[110] In Garcia, the court was handed a case where an actress was told she performed a scene for an action-thriller film, only to later find out that her footage was actually recut to be used for an anti-Islamic propaganda film.[111] Devastated by this development, the actress asked the court to find that she had a copyright ownership claim in her performance.[112] In it’s opinion, the court ruled against the actress and held that an actress’s performance in a film is not copyrightable.[113] This opinion leaves actors open to potential exploitation by the use of AI since their performances are not copyrighted and as a result can be recreated with AI. Meanwhile, copyright grants production studios incredibly strong protections against certain unauthorized uses of their films, including uses by AI.[114]

In Garcia, the Ninth Circuit’s majority gave several distinct reasons for why an actor’s performance in a movie does not qualify for copyright protections. The first was that the actor, Cindy Lee Garcia, played no role in the fixation of her performance.[115] According to the majority, this was further supported by her claim that she did not agree to the final rendition of her performance in the movie, proving that the fixation could not have happened under her authority.[116] Instead, fixation of her performance was entirely handled by the director and his crew.[117]

The majority also relied on a letter from the United States Copyright Office in it’s opinion. This letter specifically determined that Garcia’s performance “was not a copyrightable work.”[118] The letter stated that the Copyright Office could not register the performance separately from the motion picture itself since Garcia’s performance was limited to acting in the larger integrated work that is a motion picture.[119]

The Ninth Circuit concluded that an actor’s performances do not qualify for copyright protections under copyright law.[120] The reason the Ninth Circuit’s opinion is important in the film industry is because all four of California’s judicial districts fall under the Ninth Circuit’s jurisdiction.[121] Currently, all five of the major film studios have their main filming lots located in California: Disney and Warner Brothers are both located in Burbank,[122] Paramount is in Hollywood,[123] Universal is in a part of unincorporated Los Angeles County known as “Universal City,”[124] and Sony is in Culver City.[125] The Ninth Circuit’s holding is particularly relevant to the film industry since these five California based studios represent the vast majority of this industry in the United States.[126]

As a result of the Ninth Circuit’s holding, protecting actors and their performances is often left to sources of law that are not copyright. Two of the most common sources are contractually agreed to rights and state “Right of Publicity” laws.[127] Contracted rights are rooted in both individual agreements with employing production studios[128] and contracts signed on behalf of actors by their union, SAG-AFTRA.[129] Meanwhile, the right of publicity is a state law tort “designed to prevent unauthorized uses of a person’s identity that typically involve appropriations of a person’s name, likeness, or voice.”[130] Both right of publicity protections and contracted rights are similar in that they are both creatures of state law[131] and inadequate to protect performers from the risks that generative AI pose.

Right of Publicity Laws

The right of publicity often refers to a tortious act where a defendant appropriates a plaintiff’s identity for the “use or benefit” of the defendant.[132] These laws often protect a number of interests a person may have.[133] This can include a person’s interest in “controlling the use of their performances, in preserving the commercial value of their identity, in protecting the autonomy of their personality, and in maintaining the dignity of their person.”[134]

One of the foremost issues with right of publicity laws is their inconsistency throughout the United States. Currently, federal law lacks any cause of action for a right of publicity infringement.[135] Instead it remains a cause of action solely at the state law level.[136] It follows that the right of publicity varies widely state to state, although it tends to protect against unauthorized uses of a person’s name and likeness universally.[137] Across the states that recognize this right, a plaintiff can generally establish a cause of action if they show the validity of their right of publicity and the infringement of the right by the defendant.[138]

A major problem with the lack of a federal right of publicity law is that only twenty-five states have recognized the right of publicity through statutory law.[139] In addition to the states that have codified the right, some states recognize the right of publicity through common law.[140] For example, one study found that ten additional states, for a total of thirty-five, recognized a right of publicity to some extent as of 2020.[141] Although thirty-five states recognize the right, because fifteen states do not recognize it there are inconsistencies across the country for performers.

Even in the states that recognize the right of publicity, what rights are included varies state by state.[142] Under certain state law, likeness can include any characteristics that call a specific celebrity to mind.[143] For example, California statutorily recognizes that the use of another’s “name, voice, signature, photograph, or likeness” on products or merchandise, or for the purposes of advertising or promotion violates the right of publicity.[144] In contrast, Texas statutory law only recognizes the right of publicity postmortem.[145] Overall, these wide inconsistencies have led to a necessity for contractual right supplements.

Contracted Rights

While actors are not granted particularly strong protections for their work through state or federal statutory law, they are guaranteed certain rights for their work through contractual agreements.[146] The standard individual contract an actor signs covers things like the nature of their role, the length of their commitment, compensation for their role, and the rights they have to their specific performance.[147] Outside of these individual contracts, the contract negotiated by the SAG-AFTRA union and the AMPTP also plays a significant role in helping to secure actors’ rights.[148]

SAG-AFTRA works to represent actors by negotiating contracts that cover actors’ work on their behalf.[149] This process typically works by having a “negotiating committee” represent the union’s best interest in negotiations with employers.[150] These negotiations end when the negotiating committee is able to come to an agreement, such as the one that the 2023 strike resulted in.[151]

A substantial portion of the negotiated agreement, the 2023 TV/Theatrical Agreement, was dedicated to protections against AI.[152] For example, one of these protections requires a studio who wants to create a “digital replica” of an actor’s voice or likeness with the intention of using that copy in the actor’s place to receive “clear and conspicuous” consent from the actor.[153] Where a digital replica replaces an actor, the studio must pay the actor for the days they would have been required to perform in the absence of that digital replica.[154] Background actors are granted this same protection for any scenes they are replaced with a digital replica.[155] Unlike the previous two categories, actors who meet a higher-salary threshold are not guaranteed extra pay for digital replicas used in their place.[156]

Even though the protections against AI were fought for over the course of the SAG-AFTRA strike, the broad caveats left for studios raise some doubt as to their quality.[157] For example, studios only need to receive an actor’s consent if the AI recreation is for a different project.[158] Studios do not need to acquire an actor’s consent if the generative AI use is for “post-production alterations, editing, arranging, rearranging, revising or manipulating of photography and/or sound track for purposes of cosmetics, wardrobe, noise reduction, timing or speed, continuity, pitch or tone, clarity, addition of visual/sound effects or filters, standards and practices, ratings, an adjustment in dialogue or narration or other similar purposes.”[159] Additionally, studios do not need to receive consent if the AI use is for dubbing or for use of a double if either is already permissible under the Codified Basic Agreement or Television Agreement.[160]

These AI provisions are potentially the most vital part of the 2023 SAG-AFTRA agreement for protecting actors moving forward. While these provisions are a step in the right direction, they still contain gaps that have left some actors vulnerable to generative AI.[161] The gaps in protection left by right of publicity laws and the SAG-AFTRA agreement suggests that the law needs an alternative avenue for performer protections against AI.

Proposals for Stronger Protections

Belief that current protections aren’t strong enough has led to multiple different proposals to increase protections for performers. Commentators suggest that a federal right of publicity is the best way to protect actors from generative AI.[162] One suggestion offers two justifications for a federal right of publicity: economic cost to businesses and the need to provide uniform and equal protections to people across all states.[163] A business that is unable to determine where a celebrity is domiciled would have a difficult time deciding what states right of publicity laws apply.[164] This puts a business in a position where it must spend money on an unnecessary license or run the risk of a lawsuit, therefore imposing economic cost to the business.[165] On the other hand, the equal protections theory reasons that it is unfair to suggest that a person in one state has less of an interest in their personality than a person from another state.[166]

Another scholar’s suggestion is a balancing test for a potential federal right of publicity law.[167] This proposed balancing test would be utilized in order to synthesize statutory law, common law, and First Amendment considerations while not “disturbing copyright territory.”[168] The balancing factors proposed include the “intent of the generative AI creator, [the] commercial impact of the generative AI content, how transformative the generative AI content is in using an individual’s voice, image, or likeness, and [the] consent of the individual whose publicity right is being infringed upon.”[169] Under this proposal, the third factor would adopt fair use principles,[170] specifically looking at transformative use.[171]

An issue that might potentially arise with federal right of publicity laws is tied to how Congress would likely ground them in the Constitution.[172] Many have stated that Congress could regulate the right of publicity using their Commerce Clause powers.[173] The issue with attempting to ground right of publicity laws in the Commerce Clause is that the Supreme Court has recently been more willing to reject a broad interpretation of Congress’s Commerce Clause powers.[174] The risk that the Supreme Court may not allow the Commerce Clause to be interpreted in a way that covers right of publicity suggests that these protections would be better off rooted in one of Congress’s other powers, such as copyright law.[175]

The last proposal is from Congress itself: the “Nurture Originals, Foster Art, and Keep Entertainment Safe” (NO FAKES) Act.[176] This bill targets digital replicas as opposed to creating a federal right of publicity law like the previous suggestions.[177] The NO FAKES Act would create a new intellectual property right over a person’s digital replica.[178] A similar version of this bill has already been passed and signed into law in California.[179] The California law voids contractual provisions that allow for the use of a person’s digital replica if it is “in place of work the individual would otherwise have performed in person, does not include a reasonably specific description of intended uses of the digital replica, and the individual was not represented by a lawyer or a union whose collective bargaining agreement covers digital replicas.”[180]

The version of the NO FAKES ACT proposed to Congress in 2024 is much more complicated than necessary to accomplish the goal of protecting performers.[181] It proposes creating a property right that would authorize the use of an individual’s likeness in a digital replica.[182] This right would continue to exist after the death of the performer.[183] However, instead of a flat seventy year duration after death, like the previous version of the bill proposed, the post-death right would only be for an initial ten year period that could be renewed by the rightsholder for successive five year periods up to seventy years total.[184]

The right surviving for seventy years after death appears to stem from copyright law, and it isn’t the only part of the bill that does.[185] Other proposals in the bill include a list of categories that would be permissible uses, as well as safe harbors for manufacturers, distributors, and other online service providers.[186] Even with the permissible uses, the proposed NO FAKES Act is so broad that the exceptions are unlikely to cover all acceptable uses.[187] Instead of attempting to pass such an overly broad and complicated legislative proposal, amending copyright law to allow performers to receive protections for their performances would prove to be a more efficient way for federal law to accomplish the task.

The Case to Extend Copyright Law to Performers’ Image and Likeness

Actors are vital to the success of the billion-dollar film industry that exists today. Some actors have the ability to “increase a film’s artistic appeal,” serve as markers of quality for films, and help to match a film with its proper audience.[188] Actors also often “facilitate the marketing campaign” of the films they are in and provide other sorts of entertainment that help draw audiences to their films.[189] Even with the value actors provide to the film studios, they still do not receive the protections they deserve for their performances.

These risks that actors face as a result of generative AI are not going anywhere any time soon.[190] Less than a year after the strike ended actors were already being pressured into signing contracts that would allow studios to use digital replicas of their likeness.[191] In the year since the SAG-AFTRA agreement was signed, thousands of artists have signed a letter protesting the mining of their works for AI.[192] Despite all the labor efforts to restrict its use, AI is all over Hollywood, even if the industry refuses to admit it.[193]

Right of publicity laws, as they currently stand, are inadequate to protect actors.[194] States are wildly inconsistent when it comes to right of publicity law enactment and enforcement.[195] Even in states that recognize right of publicity protections, generative AI may have an easy escape route for liability under these laws.[196] Because the right of publicity is “balanced against the rights of users to creative or self-expression,” creative or expressive AI output may avoid right of publicity liability thanks to the First Amendment.[197] In theory, a work AI creates could be protected by the First Amendment if the work contains enough “creative content” to outweigh an individual’s interests in protecting their right of publicity.[198]

The final line of defense­­—­the SAG-AFTRA TV/Theatrical Agreement—has been a relative failure regarding AI restrictions since it was first signed.[199] Only a year later we already saw studios take advantage of their bargaining position, even with this new agreement.[200] The protections of this agreement are already set to expire in less than seven months from the date of this note’s publication, on June 30, 2026.[201] With the likelihood that the movie studios know that the SAG-AFTRA union cannot afford a second strike in under three years,[202] an important question arises: What is stopping these studios from using this leverage to argue for more free use of generative AI? These limitations on the current protections for actors suggest that more is needed to protect them from generative AI.

Exisiting Copyright Law Proposals

This Note poses a simple question: Instead of reading fair use exceptions and safe harbor protections into a federal right of publicity protection, why not just source the protection in copyright law itself? Basing author and performer protections on an already existing statutory scheme is inherently less complicated than attempting to create an entirely new one. This might be why protecting actors through copyright law is by no means a novel idea. In fact, it has been proposed by a number of scholars.[203] Each of the following proposals presents a case that protection for actors and performers should be based out of a specific aspect of copyright law, whether it be by making performances copyrightable subject matter or adopting moral rights[204] for authors. [205] While all of these proposals could accomplish the task of protecting performers from generative AI, none are as effective as simply altering the definitions listed in section 101.

One scholar proposes leaving it to the judiciary.[206] This argument posits that Congress “paved the way for new art forms to be categorized by way of judicial interpretation.”[207] It claims that the categories are left broad so that courts can accommodate new art forms without Congress having to create a new category.[208] According to the author, actors’ performances have the ability to be categorized as “pantomime and choreographic” works or “dramatic works.”[209] However, this idea cannot be squared with Garcia’s holding that an actor’s performance is not copyrightable.[210] Reconciliation between this proposal and the text of Title Seventeen is hard to find, particularly when one of the most prominent courts for copyright[211] says that actor’s performances are not covered under copyright.[212] Additionally, while Congress could amend section 102 to include actor’s performances as a copyrightable subject matter, it would likely be opposed to this idea since the categories of copyrightable subject matter were intentionally left broad.[213]

Another argument for basing a solution in copyright law is that if the United States complied with international copyright law then an actor’s performance would be covered.[214] The two prominent sources for this argument are the Beijing Treaty and the Berne Convention.[215] Both of these agreements recognize some sort of expanded right for authors.[216] The author proposes that Congress should amend the Copyright Act to explicitly provide actors with rights and to give all authors moral rights.[217] The major issue with this proposal is that the United States has a general aversion to moral rights.[218] In the case of adopting moral rights to protect authors, there is no reason to believe Congress would flip its position on moral rights nearly one hundred years after the Berne Convention introduced them.[219]

The final proposal suggests that the principles that allow the law to recognize copyright in a recorded performance of a previously written musical composition should also apply to an actor’s reading of a script.[220] When it comes to sound recordings, the House Report states that the protectable components of a sound recording include the contribution “of the performers whose performance is captured” and that there will be “cases where . . . the performance is the only copyrightable element in the work.”[221] Proponents of this approach claim that the legislative history states that “sound recordings” include nonmusical performances such as “[a]n actor’s recorded recitation of a poem” or “a theatrical company’s recorded performance of a comedy.”[222] While this proposal may have some merit, a solution in another area of the Copyright Act would work better.

The Case for Section 101

In light of where the current proposals fall short, the better proposal for protecting actors from AI under copyright law is to grant them protection for their performances by altering the definitions listed in section 101 of the Copyright Act.[223] Specifically, Congress should amend the definition for “collective work” in section 101 and add a definition for “author.” The amendment to the “collective work” definition should be as follows:

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.[224]

Removing the examples of works would help to clarify the meaning of “collective work” and would likely result in an easier understanding of the statute. Outside of ease of readability, the “such as” list contains very specific and alike items that it mentions could be collective works. Removing this specific list of examples could allow additional, deserving works qualify as collective works.

This change to the collective works definition may seem inconsequential since actors do not currently qualify as authors for movies. However, actors have already been acknowledged as potential joint authors in the context of the film industry. In the Copyright Office’s letter relied upon by the Ninth Circuit’s majority in Garcia, the Copyright Office acknowledges that actors may be joint authors for films they are in.[225] Specifically, the Copyright Office stated that if an actor’s contribution is not a work made for hire, then the actor could claim joint authorship in a film they are in.[226] Additionally, the proposed addition of a definition for “author” further clarifies this for courts.

The next proposal addresses the fact that no definition for “author” exists under section 101.[227] In 1976, Congress left this definition blank because they intended to leave it flexible.[228] Some courts have filled this definition in by asserting that an author must have some element of control over the work.[229] Alternatively, the Ninth Circuit has defined “author” as meaning the “master mind” of the work.[230] In the forty-eight years since Congress left “author” definition-less, the courts have adopted an interpretation that has left copyright law abandoning people it should be protecting. A couple proposed definitions for “author” could look as follows:

For purposes of this Title, the “Author” of a work is the individual that creates the work. The “Author” title shall not be assigned until a work is fixed in a tangible medium of expression.

For purposes of this Title, the “Author” in a “Collective Work” includes any person(s) that meaningfully contributed to the collective work, such as co-writers on a literary work, performers in a motion picture or other audiovisual work, or co-artists on a musical work.

These two changes would help to clarify what the word “author” means in the context of the Copyright Act.

These alterations to section 101’s definitions, when read into section 201(c), would clarify that performers in a motion picture who “meaningfully contribute” to the film are granted ownership in the work they contributed to. The goal in making these changes is to remedy the current inconsistencies in the law by protecting actors from generative AI at the federal level. Making these minor changes to section 101’s definitions would grant copyright to an actor for their specific performance. This would include all aspects of that particular performance being protected, including their specific image and likeness in the acting performance.

The proposed changes to section 101 would grant qualifying performances all the rights copyright law offers. It would grant actors the rights to reproduction, distribution, and creating derivative works based on their performance. Likewise, it would grant actors these rights in their performances for the extended period that copyright protections are granted to authors for.[231] Additionally, giving actors copyright protections would grant them access to the statutory damages laid out in section 504.[232] These statutory damages act as both a protection for owners of a copyright, as well as a deterrent against non-rightsholder’s infringing activities.

A potential downfall that some people may claim this approach suffers from is that the changes are too radical, especially the idea of adding a definition for “author.” However, unlike some proposals that suggest considering labor inputs when determining intellectual property rights,[233] the suggested changes to section 101 remain in alignment with the core framework of intellectual property rights in the United States. The proposed changes in this Note also align with the dominant framework of United States copyright law: utilitarian principles and justification. Allowing performers to receive copyright protections for their performance still focuses on the output of the performance and not the effort the actor put into the performance.

Another potential point of opposition with this Note’s proposed changes to copyright law, is that Congress is not allowed to add a definition for “author.” However, this fails to acknowledge the plain language of the Progress Clause of the United States Constitution. Copyright Law stems from the Progress Clause’s language stating that Congress may grant authors ”the exclusive right to their respective Writings” in order “to promote the Progress of Science.”[234] Given that Congress has provided plenty of definitions for what “writings” could mean, Congress should also be permitted to provide a definition for what “author” could mean.

The proposed changes to section 101 still leave plenty of discretion to the courts. Under the proposed changes to section 101, a court would remain free to determine what counts as creating a work and what counts as a meaningful contribution to a collective work. In fact, many actors that have smaller roles would likely not be found to be authors under these changes. However, starring actors receiving copyright protections in their movies would provide SAG-AFTRA with substantial bargaining power the next time they meet the studios at the negotiating table. These proposed changes to section 101 provide performers with protections against studio use of generative AI and ultimately give them the leverage to end a future strike quicker, or to potentially avoid the next strike all together.

Conclusion

The film industry is worthless without actors bringing characters to life. An actor’s performance is vital to immersing the viewer in the world that any particular film creates. The best performances trick audiences into believing that the actor is the character they are playing. To many Marvel Cinematic Universe fans, Robert Downey Jr. is “Iron Man.” At the end of Forrest Gump people truly believed Tom Hanks was “Forrest Gump.” Likewise, Carrie Fisher will always be remembered as the princess from Alderaan. Without these performers and their iconic performances, the entertainment industry as we know it would not exist.

Under these circumstances, a temporary or weak solution is not adequate and never will be. Actors give their all in performances that enrich the artistic realm and eventually the public domain. More importantly these performances have kept us, the audience, entertained for over a century. These minor changes proposed above to section 101 of Title Seventeen have the potential to support the actor community substantially more than any SAG-AFTRA agreement or right of publicity law has ever been able to. It’s past time that Congress recognizes the importance of the role actors have in society and utilizes copyright law to permanently protect their performances like the works of art that they are.

 

* J.D. Candidate, University of Colorado Law School, Class of 2026. Thank you to the University of Colorado Law Review Volume 97 Forum Editorial Staff, Abigail Luetke and Emma Wolters, for leading the effort that made this Note publication-worthy. Additional thanks to my Casenote and Comment Editor, Emma Plante, who guided me through the drafting process, and to David Churchwell, Grace Detwiler, and Professor Blake Reid for their vital feedback on this Note.

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  2. J. Kim Murphy, Chris Pratt Will Voice Mario in The Super Mario Bros. Movie, IGN (Sep. 24, 2021, at 7:30 AM), https://www.ign.com/articles/chris-pratt-nintendo-direct-super-mario-bros-movie-cast-illumination-entertainment [https://perma.cc/H5EQ-3JUA]. ↑
  3. IMDbPro, The Super Mario Bros. Movie, Box Office Mojo, https://www.boxofficemojo.com/title [https://perma.cc/E9YD-CDNW]. ↑
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  5. Lindsay Lowe & Candice Williams, The SAG-AFTRA strike in Hollywood, explained, Today (Nov. 11, 2023, at 9:54 AM), https://www.today.com/popculture/hollywood-actors-sag-strike-2023-explained [https://perma.cc/NXJ6-E78D]. ↑
  6. See infra Part I.A. ↑
  7. Lowe & Williams, supra note 5. ↑
  8. Id. ↑
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  10. Zoe Phillips, SAG-AFTRA and WGA Strikes: All the Major Dates to Know, ET Online (Dec. 6, 2023, at 11:01 AM), https://www.etonline.com/sag-and-wga-strikes-all-the-major-dates-to-know [https://perma.cc/9LY6-XK8X]. ↑
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  14. Occupational Outlook Handbook: Actors, U.S Bureau of Labor Statistics, https://www.bls.gov/ooh/entertainment-and-sports/actors [https://perma.cc/24FB-LTPX]. ↑
  15. Id. ↑
  16. In 2024, the five major film studios—Disney, Warner Bros, Universal, Sony, and Paramount—accounted for 76.3 percent of the domestic film market share. Laura Carollo, Market share of leading film studios in the United States and Canada from 2010 to 2024, Statista (June 19, 2025), https://www.statista.com/statistics/187171/market-share-of-film-studios-in-north-america-2010 [https://perma.cc/KF6U-G238]. ↑
  17. Nancy Tartaglione, Global Box Office Hit $30B In 2024 As Year Ended On Upbeat Note, But It’s No Longer Good Enough To Have A Good Movie: Studio Report Cards, Deadline (Jan. 15, 2025, at 9:00 AM), https://deadline.com/2025/01/global-box-office-2024-report-hollywood-studio-rankings [https://perma.cc/Q2ZG-B8ZS]. ↑
  18. See Riley Hoffman, SAG-AFTRA members vote to ratify 3-year contract with studios, ABC News, https://abcnews.go.com/Entertainment/sag-aftra-members-vote-ratify-3-year-contract/story [https://perma.cc/3KCQ-ZP28]. ↑
  19. Phillips, supra note 10. ↑
  20. See generally Tamas Cser, Things that are called ML/AI that really aren’t, Functionize (Apr. 7, 2020), https://www.functionize.com/blog/things-that-are-called-ml-ai-that-really-arent [https://perma.cc/WDN6-VNZZ]. ↑
  21. The Internet of Things (IoT) is a network of connected devices that exchange data with other IoT devices and the cloud. See Kinza Yasar & Alexander S. Gillis, Internet of Things (IoT), TechTarget (June 2024), https://www.techtarget.com/iotagenda/definition/Internet-of-Things-IoT [https://perma.cc/J4PE-YY7A]. ↑
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  23. What is (AI) Artificial Intelligence, U. Ill. Chi. (May 7, 2024), https://meng.uic.edu/news-stories/ai-artificial-intelligence-what-is-the-definition-of-ai-and-how-does-ai-work [https://perma.cc/2HLT-D85G]. ↑
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  28. Id.; See Michelle Toh, 300 million jobs could be affected by latest wave of AI, says Goldman Sachs, CNN Business (Mar. 29, 2023, at 4:45 AM), https://www.cnn.com/2023/03/29/tech/chatgpt-ai-automation-jobs-impact-intl-hnk/index.html [https://perma.cc/9CZR-53ZP] (explaining that Goldman Sachs economists predict that as many as 300 million full-time jobs worldwide could be automated in some way by the newest wave of AI technologies). ↑
  29. See What is (AI) Artificial Intelligence, supra note 23. ↑
  30. Machine-learning is the field of artificial inteligence specifically focused on developing algorithms and statistical models to enable computer systems to perform without specific programming and instead to adapt as they encounter data. See id. ↑
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  32. Id. ↑
  33. Keith D. Foote, A Brief History of Generative AI, Dataversity (Mar. 5, 2024), https://www.dataversity.net/a-brief-history-of-generative-ai [https://perma.cc/VN76-2G83]. ↑
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  37. Id. at How generative AI works. Optimization includes tasks such as generation, evaluation, and additional tuning to achieve greater accuracy and relevance with the model. ↑
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  40. Id. ↑
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  44. Cho & Roxborough, supra note 41. (highlighting when David Kavanagh, the executive officer of the Federation of Screenwriters in Europe, pointed out that AI can already produce lip-synched dubs in multiple languages which led him to believe that “[d]ubbing and subtitling employment in Europe is finished”). ↑
  45. William Earl, ‘Late Night With the Devil’ Directors Explain Using AI Art in the Film, Say They ‘Experimented’ With Three Images Only (EXCLUSIVE), Variety (Mar. 21, 2024, at 7:00 AM), https://variety.com/2024/film/news/late-night-with-the-devil-ai-images-clarification [https://perma.cc/C5UV-82VY]. ↑
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  56. Id. ↑
  57. Barber, supra note 52. ↑
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  59. A background actor on Warner Bros’ The Flash says he was “required to submit to a 360-degree image scan—or go home without pay.” Spangler, supra note 1. ↑
  60. Copyright in General, U.S. Copy. Off., https://www.copyright.gov/help/faq/faq-general.html [https://perma.cc/BVV9-ZASD] (last visited Nov. 19, 2024). ↑
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  62. See 17 U.S.C. §§ 501–13. ↑
  63. 17 U.S.C. § 102. ↑
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  65. Id. ↑
  66. Feist Publication, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 346 (1991). ↑
  67. Requirements for Copyright Protection, supra note 64. ↑
  68. Williams Electronics, Inc. v. Artic International Inc., 685 F.2d 870 (3d Cir. 1982). ↑
  69. 17 U.S.C. § 106. ↑
  70. Eldred v. Ashcroft, 537 U.S. 186, 212 n.18 (2003). ↑
  71. Jeanne C. Fromer & Christopher Jon Sprigman, Copyright Law: Cases and Materials 1, 3 (6th ed. 2024). ↑
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  73. Id. ↑
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  75. Fair use consists of a balancing test where courts balance the purpose of the infringing use, the nature of the copyrighted work, the amount and substantiality used from the copyrighted work, and the effect on the market of the copyrighted work. If the test favors fair use, the otherwise infringing use is considered “fair.” 17 U.S.C. § 107; Niki Kuckes, From Andy Warhol to Barbie: Copyright’s Fair Use Doctrine After Andy Warhol Foundation v. Goldsmith, 29 Roger Williams U. L. Rev. 177, 192 (2024). ↑
  76. See Copyright Law Explained, supra note 72. ↑
  77. 17 U.S.C. § 106(3). ↑
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  79. Id. ↑
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  82. Id. ↑
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  86. Id. ↑
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  89. See Dr. Gary L. Deel, What Is Intellectual Property Law? And Why Does it Matter?, American Pub. U. (July 13, 2023), https://www.apu.apus.edu/area-of-study/security-and-global-studies/resources/what-is-intellectual-property-law [https://perma.cc/7W34-KVPE] (“A copyright is a protection which gives owners or creators the exclusive right to copy, distribute, adapt, display, or perform a creative work.”). ↑
  90. Regan Smith, How A Strong Copyright System Benefits the United States, Copy. All. (Sep. 26, 2024), https://copyrightalliance.org/high-school-debate-copyright-policy-regan-smith [https://perma.cc/6Q75-8JYL]. ↑
  91. Id. ↑
  92. Robert Stoner & Jéssica Dutra, Copyright Industries in the U.S. Economy: The 2022 Report, Int’l Intell. Prop. All. (Dec. 2022), https://www.iipa.org/files/uploads/2022/12/IIPA-Report-2022-Interactive-12-12-2022-1.pdf [https://perma.cc/K64R-XN5E]. ↑
  93. Copyright Registration for Motion Pictures, Including Video Recordings, Copyright Office, https://www.copyright.gov/circs/circ45.pdf [https://perma.cc/BZ38-BM3T]. ↑
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  95. Id. ↑
  96. Victor A. Oberting IV, Generative Artificial Intelligence and Copyright in the Film and Media Industry, 82 WASH. & LEE L. REV. ONLINE 123, 134 (2024). ↑
  97. Id. Congress has added additional provisions in response to changing technology, such as the safe harbor provisions provided under the Digital Millennium Copyright Act, in response to the technological advances of the Internet. Id. at 137. ↑
  98. Hypothetically speaking, as nobody is actively “finding” that a work is granted copyright protections prior to an infringement suit since copyright assigns automatically upon fixation. See Requirements for Copyright Protection, supra note 64. ↑
  99. 17 U.S.C. § 201. ↑
  100. 17 U.S.C. § 201(a). ↑
  101. 17 U.S.C. § 201(b). ↑
  102. See infra Part IV.C. ↑
  103. 17 U.S.C. § 201(c). ↑
  104. Id. ↑
  105. Id. ↑
  106. Schlesinger, supra note 61. ↑
  107. Id. ↑
  108. Id. ↑
  109. See 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2nd Cir. 2015). ↑
  110. Garcia v. Google Inc., 786 F.3d 733 (9th Cir. 2015). See also Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) (holding that “a person’s name or likeness is not a work of authorship within the meaning of 17 § 102”). ↑
  111. Id. at 736–37. ↑
  112. Id. ↑
  113. Id. ↑
  114. Training AI using copyrighted works is allowed under the Fair Use doctrine, meaning studios do not receive full protections against any AI use. Katherine Klosek & Marjory S. Blumenthal, Training Generative AI Models on Copyrighted Works Is Fair Use, ARL Views (Jan. 23, 2024), https://www.arl.org/blog/training-generative-ai-models-on-copyrighted-works-is-fair-use [https://perma.cc/B9V4-ACAH]. ↑
  115. Garcia v. Google Inc., 786 F.3d 733, 744 (9th Cir. 2015). ↑
  116. Id. ↑
  117. Id. ↑
  118. Id. at 741. ↑
  119. Id. ↑
  120. Id. at 744. ↑
  121. What is the Ninth Circuit, U.S. Courts for Ninth Cir., https://www.ca9.uscourts.gov/judicial-council/what-is-the-ninth-circuit [https://perma.cc/V8F9-MBEL]. ↑
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  124. Contact Us, Universal Prod. Services, https://www.universalproductionservices.com/los-angeles [https://perma.cc/A84L-NB8D]. ↑
  125. Sony Pictures Studio Operations, Sony Pictures, https://www.sonypicturesstudios.com/thestudiolot.php [https://perma.cc/V9XL-DZ5X]. ↑
  126. In 2023, the five major studios accounted for just under 80 percent of the film industry market share for the United States and Canada. Andrew Pierce, The “Big Five” Film Studios & Their Acquisitions: A Hollywood Ownership Map, Wyo. Att’y, https://wyomingllcattorney.com/Blog/Mergers-and-Acquisitions-of-Major-Film-Studios [https://perma.cc/7237-6ZYJ]. ↑
  127. Kyrie Mattos, Understanding the Importance of Law in Protecting Actors, JT (Sep. 4, 2023), https://jt.org/understanding-the-importance-of-law-in-protecting-actors [https://perma.cc/3HMB-2FUW]; Adrienne Yeung, What is a Celebrity’s “Right of Publicity”, 8 Nev. Law. 16 (2000). ↑
  128. Id. ↑
  129. 2023 TV/Theatrical Contracts, SAG-AFTRA, (Nov. 19, 2024) https://www.sagaftra.org/contracts-industry-resources/contracts/2023-tvtheatrical-contracts [https://perma.cc/E699-9CPV]. ↑
  130. Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L. J. 86, 89 (2020). ↑
  131. See Right of Publicity State-by-State, Rothman’s Roadmap to the Right of Publicity, https://rightofpublicityroadmap.com [https://perma.cc/F3QM-4MZU] (Nov. 19, 2024). ↑
  132. Post & Rothman, supra note 130 (quoting the RESTATEMENT (SECOND) OF TORTS § 652C (AM. LAW INST. 1977)). ↑
  133. Id. at 92. ↑
  134. Id. ↑
  135. Emily Alexandra Poler, What’s Real, What’s Fake: The Right of Publicity and Generative AI, ABA (Aug. 7, 2023), https://www.americanbar.org/groups/businesslaw/resources/business-law-today/2023-august/whats-real-whats-fake-the-right-of-publicity [https://perma.cc/Y8MF-RGWE]. ↑
  136. Id. ↑
  137. Right of Publicity State-by-State, supra note 131. ↑
  138. Mark Roesler & Garrett Hutchinson, What’s in a Name, Likeness, and Image? The Case for a Federal Right of Publicity Law, ABA (Sep. 16, 2020), https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/september-october/what-s-in-a-name-likeness-image-case-for-federal-right-of-publicity-law [https://perma.cc/G3ZX-59U8]. ↑
  139. Artificial Intelligence Prompts Renewed Consideration of a Federal Right of Publicity, Congressional Research Service 1 (2024). ↑
  140. Id. at 2. ↑
  141. Id. at 1. ↑
  142. Id. ↑
  143. See Poler, supra note 135. ↑
  144. California, Rothman’s Roadmap to the Right of Publicity, https://rightofpublicityroadmap.com/state_page/california [https://perma.cc/9NDK-2XBP]. ↑
  145. Texas, Rothman’s Roadmap to the Right of Publicity, https://rightofpublicityroadmap.com/statepage/texas [https://perma.cc/3HXT-PYG6]. ↑
  146. Mattos, supra note 127. ↑
  147. Id. See Miller Friedman, The Future of Hollywood Contracting in the Streaming Age, 18 J. Bus. & Tech. L. 97 (2022) (explaining a recent case where Scarlett Johansson sued Disney over breach of contract for releasing her film “Black Widow” directly to streaming). ↑
  148. TV/Theatrical Contracts 2023: Summary of Tentative Agreement, SAG-AFTRA (Nov. 16, 2023), https://www.sagaftra.org/sites/default/files/sa_documents/TV-Theatrical_23_Summary_Agreement_Final.pdf [https://perma.cc/936A-KBQU]. ↑
  149. Contracts & Industry Resources, SAG-AFTRA (Nov. 19, 2024) https://www.sagaftra.org/contracts-industry-resources [https://perma.cc/Q3GQ-X9AU]. ↑
  150. See A Message From Your Negotiating Committee, SAG-AFTRA (Aug. 27, 2024), https://www.sagaftra.org/message-your-negotiating-committee [https://perma.cc/DH2H-NAZU]. ↑
  151. TV/Theatrical Contracts 2023: Summary of Tentative Agreement, supra note 148. ↑
  152. Id. at 6. ↑
  153. Christi Carras, What’s in the SAG-AFTRA deal? Here’s what the union has to say, including about AI terms, LA Times (Nov. 13, 2023), https://www.latimes.com/entertainment-arts/business/story/2023-11-13/whats-in-the-sag-aftra-deal-contract-ai-terms [https://perma.cc/6E47-H5XR]. ↑
  154. Id. ↑
  155. Id. ↑
  156. Id. ↑
  157. Dominic Patten, Read Full SAG-AFTRA Deal Summary Released Ahead Of Ratification Vote; Analysis Of AI & Streaming Fund, Deadline, https://deadline.com/2023/11/sag-aftra-deal-summary-released-read-it [https://perma.cc/RZ55-2VRG]. ↑
  158. Id. ↑
  159. Id. (quoting SAG-AFTRA’s summary of its 2023 Tentative Agreement). ↑
  160. Id. ↑
  161. Id. ↑
  162. See Artificial Intelligence Prompts Renewed Consideration of a Federal Right of Publicity, supra note 139, at 5. ↑
  163. Roesler & Hutchinson, supra note 138. ↑
  164. Id. ↑
  165. Id. ↑
  166. Id. ↑
  167. Sara Asher, A Federal Right of Publicity to Navigate the Wild West of Generative AI Content, 36 St. Thomas L. Rev. 105, 124 (2024). ↑
  168. Id. ↑
  169. Id. ↑
  170. See Kuckes, supra note 75, for a refresher on fair use. ↑
  171. Asher, supra note 167. ↑
  172. Artificial Intelligence Prompts Renewed Consideration of a Federal Right of Publicity, supra note 139, at 5–6. ↑
  173. Id. ↑
  174. See National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)(holding that the Affordable Care Act’s individual mandate could not be enacted under the commerce clause); Nat’l Pork Producers Council v. Ross, 598 U.S. 356 (2023) (refusing to adopt an expansive view of Congress’s Dormant Commerce Clause powers). ↑
  175. Artificial Intelligence Prompts Renewed Consideration of a Federal Right of Publicity, supra note 139, at 56. ↑
  176. Jennifer E. Rothman, NO FAKES Act Introduced in Senate, Rothman’s Roadmap to the Right of Publicity (Sep. 9, 2024), https://rightofpublicityroadmap.com/news_commentary/no-fakes-act-introduced-in-senate [https://perma.cc/E857-7GPC]. ↑
  177. Id. ↑
  178. Id. ↑
  179. John P. Bossert & Christian E. Mammen, Comparing California’s AI-Likeness Bills with the Federal NO FAKES Act of 2024, Womble Bond Dickinson, https://www.womblebonddickinson.com/us/insights/alerts/comparing-californias-ai-likeness-bills-federal-no-fakes-act-2024 [https://perma.cc/Z4M5-F6HB]. ↑
  180. Id. ↑
  181. See id. ↑
  182. Comparison of NO FAKES bill & U.S. Copyright Office recommendation to protect digital replica, Chat GPT Is Eating the World (Oct. 4, 2024), https://chatgptiseatingtheworld.com/2024/08/14/comparison-of-no-fakes-bill-u-s-copyright-office-recommendation-to-protect-digital-replica [https://perma.cc/LFH8-ULNX]. ↑
  183. Id. ↑
  184. Id.; Bossert & Mammen, supra note 179. ↑
  185. See Edward Lee, AI and the Sound of Music, 134 Yale L.J. F. 187, 233 (Nov. 2024). ↑
  186. Id. ↑
  187. Id. ↑
  188. Kay Hoffman, The Contribution of Actors in Film Production and Distribution: Exploring the Antecedents of the Drawing Power of Stars, Celebrity Stud. 529 (2019). ↑
  189. Id. ↑
  190. See Kalia Richardson, One Year After the Actors’ Strike, AI Remains a Persistent Threat, Rolling Stone (July 14, 2024), https://www.rollingstone.com/tv-movies/tv-movie-features/actors-strike-sag-aftra-ai-one-year-later [https://perma.cc/R3AY-N3PK]. ↑
  191. Id. ↑
  192. ABBA, Radiohead and The Cure musicians sign AI protest letter against ‘unlicensed use’ of works, AP News (Oct. 22, 2024, at 4:29 PM), https://apnews.com/article/generative-ai-abba-radiohead-thom-yorke-ba9091a6095876affe8c09f6bf9fe12d [https://perma.cc/DP5S-E2WE]. ↑
  193. Cho & Roxborough, supra note 41. ↑
  194. See Poler, supra note 135. ↑
  195. See id. ↑
  196. Id. ↑
  197. Id. ↑
  198. Id. ↑
  199. Phillips, supra note 10 (“SAG-AFTRA officials acknowledged that the deal did not achieve everything for which the union had originally asked.”). ↑
  200. Richardson, supra note 190. ↑
  201. TV/Theatrical Contracts 2023: Summary of Tentative Agreement, supra note 151. ↑
  202. See Olivia Knapp, A Deep Dive into the Economic Ripples of the Hollywood Strike, Mich. J. Econ. (Dec. 6, 2023), https://sites.lsa.umich.edu/mje/2023/12/06/a-deep-dive-into-the-economic-ripples-of-the-hollywood-strike [https://perma.cc/9NDL-SWDC] (explaining that approximately 87 percent of the Screen Actors Guild earns less than $26,000 a year). ↑
  203. See Sarah Howes, Creative Equity: A Practical Approach to the Actor’s Copyright, 42 Mitchell Hamline L. Rev. 70 (2016); See Chrissy Milanese, Lights, Camera, Legal Action: Assessing the Question of Acting Performance Copyrights Through the Lens of Comparative Law, 91 Notre Dame L. Rev. 1641 (2016); See Justin Hughes, Actors as Authors in American Copyright Law, 51 Conn. L. Rev. 1 (2019). ↑
  204. Moral rights are the rights “to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” Moral Rights, Legal Information Inst. Cornell L. S., https://www.law.cornell.edu/wex/moral_rights [https://perma.cc/5VS6-P8RZ]. ↑
  205. Howes, supra note 203. ↑
  206. Id. ↑
  207. Id. at 105. ↑
  208. Id. at 106. ↑
  209. Id. ↑
  210. Garcia v. Google Inc., 786 F.3d 733 (9th Cir. 2014). ↑
  211. Substantial Similarity in Copyright: It matters Where You Sue, DLA Piper (Dec. 22, 2020), https://www.dlapiper.com/en/insights/publications/intellectual-property-news/2022/ipt-news-q4-2020/substantial-similarity-in-copyright [https://perma.cc/5TU7-PWUP]. ↑
  212. Garcia v. Google Inc., 786 F.3d 733 (9th Cir. 2014). ↑
  213. See H.R. Rep. No. 94-1476 at 2 (1976) (explaining that “[t]he terms “including” and “such as” are illustrative and not limitative”). ↑
  214. Milanese, supra note 203. ↑
  215. Id. at 1662–66. ↑
  216. Id. ↑
  217. Id. at 1673. ↑
  218. Id. at 1664–65. ↑
  219. See id. (stating that the Berne Convention first added moral rights in 1928, and the U.S. has largely been opposed to them since). ↑
  220. Hughes, supra note 203, at 68. ↑
  221. Id. at 38 (quoting Copyright Act of 1976, H.R. 94-1476, 94th Cong. at 56 (1976)). ↑
  222. Id. (quoting PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 2.13, at 2:148 (3d ed. 2018)). ↑
  223. 17 U.S.C. § 101. ↑
  224. Id. ↑
  225. Hughes, supra note 203, at 29. ↑
  226. Id. at 29–30. ↑
  227. 17 U.S.C. § 101. ↑
  228. The Scope of Protectable Works under Statutory Copyright, 1 Nimmer on Copyright § 2.03. ↑
  229. Id. ↑
  230. Id. (quoting Aalmuhammed v. Lee, 202 F.3d 1227, 1232–36 (9th Cir. 2000)). ↑
  231. 17 U.S.C. § 302. ↑
  232. 17 U.S.C. § 504(c). ↑
  233. Xiyin Tang, Intellectual Property as Labor Policy, 100 N.Y.U. L. Rev. (Forthcoming 2025). ↑
  234. U.S. Const. art. I, § 8, cl. 8. ↑