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Media Law: contracting digital replicas with Artificial Intelligence

A distressing legal disparity upsets Hollywood and Vancouver artists

Published in Spanish Legal Today, November 2023

On November 9, the SAG-AFTRA union, which represents 160,000 actors, journalists, broadcasters, editors and writers in the United States and ACTRA, its twin sister group in Canada, launched an almost year-long strike against non-consensual artificial intelligence replications of the images of its affiliates for commercial use. Throughout this year the queries were very varied because even stuntmen and acrobats were forced to scan their images at castings, before being chosen, for productions in Hollywood and Vancouver. And as they said, if they didn't do it, they were discarded from the selection.

Canadian artists on the West Coast are almost completely dependent on American productions that travel to Vancouver to film at lower costs, mainly due to a 30% lower monetary exchange rate difference.

The consultations range from a possible violation of human rights to contractual negotiations on the advertising value of the image of a recognized artist. But the legal regimes that regulate this issue in Canada and the United States are very different, leaving a wide margin for contractual negotiation.

What are digital replicas? From a legal approach, the digital replica is the artificial creation of an image or voice of an actor. There are two well-distinguished common types, depending on whether it is an employment relationship or a non-employment contract and a third category that is more contractually elaborated to create a replica by consensus with the artist. The first, within the framework of an employment relationship in a media production, published on any medium (film or streaming for example), requires information for the consent of the employed artist and which today is unduly inferred, for example, from the scan of his or her image. The second is created without the participation of the artist in a film, streaming or TV or radio program and the artist doesn't need to work on said work, but rather its digital replica is used independently. In these two types, the producer generates the replica without the intervention of the artist. The third represents a more detailed contract because it regulates the creation and production step by step with the direct participation of the artist who controls the work of his digital replica. In short, a digital replica is a new image or voice created over an artist's real image or voice.

In Hollywood, the ownership of images is protected... In Hollywood, the Californian regulation of publicity rights over the image is contained in an express rule of the state's civil code; Article 3344 which protects an individual against unauthorized use of his or her name, voice, signature, photograph and likeness.

The term “voice,” according to the ruling Midler v. Ford of 1988 decided by the 9th constituency, it does not apply to imitations but to the current voice of a person. The term “photograph” includes all images of a person that can reasonably be identified or scanned (read). However, images on public roads or at sporting events are considered “collective or group photographs” and the standard does not protect them because they are not individual images.

The term “similar” is the most complex to define. The case law initially applied the same test as for photographs (reasonably identified images), but then specified that drawings can be similar to the image of a person, and that the sufficiently detailed image of a robot can also resemble some individual (Went vs. . Host Intern, 1997) and successively moved towards variations of “less obvious similarities”. The Californian civil code remunerates the advertising use of the image on products, merchandise, goods or services to sell without the consent of the owner of the image.

The courts analyze three stages of analysis, the knowledge that the identity of the owner of the image is known, the commercial use of the image and the direct connection between the use and the commercial objective. With some exceptions, the publicity right over the image lasts as a copyright, for 70 years after the death of the individual.

In addition to the positive norm, there is a common-law consensual right that depends on four requirements: the identity of the owner, the appropriation of his image for commercial purposes, lack of consent and harm. The claims (legal and common-law) are cumulative and the reparable damages are not limited to the financial damage suffered but extend to the future value of the advertising, considering the feelings and tranquillity of the owner of the image used without his consent.        

…meanwhile, in Vancouver, only the privacy of the owner of the real image is taken care of. In Vancouver, the Canadian “Hollywood” of the beautiful province of British Columbia, the image publicity approach is innocently framed as if it were an appropriation of an individual's personality. The artist may be compromised either by breach of an implicit contract for the use of his image or by a violation of his copyright or trademark by suffering defamation or by the civil crime of “passing off” that is configured with the competition. deceptive marketing or false representation with the use of your image. The provincial law that protects privacy recognizes that the appropriation of an individual's personality, in this case, the image of an artist, constitutes an invasion of their privacy. A specific tort liability or breach of implied contract, invented by law, arises from the misuse of that image.

Other Canadian provinces do not even recognize this rule and require a more in-depth and case-by-case analysis of the facts to determine the existence of a violation of privacy due to the use of another's image. The jurisprudential interpretation leads to confusion such as in the Krouse v. Chrysler case where the car company used the image of a soccer player to promote its cars and successfully defended itself by proving that it promoted its cars by generically linking them to the sport and not the player. In a different case, Athans v. Canadian Adventure Camps, where he used the image of a professional water skier, the court recognized the use of it for commercial purposes, appropriating Athans' personality, and differentiating it from a simple violation of copyrights or a trademark. In all cases, the most important thing is to determine if the plaintiff, owner of the image, is identifiable, if the appropriation is intentional, generates profits for the defendant infringer, and if the actor has suffered any damage. In Canada, privacy rights are not inheritable, so publicity rights do not follow the same principle as copyrights.

For negotiation of consent to create a digital replica... Following the collective agreement reached, two stages must be distinguished: first the scanning of the artist's digital image and then the creation of its digital replica.

When an artist is required to scan your image, 48 hours notice is required before starting to manipulate it. If this period is very long, because sometimes productions are urgent, then written consent must be obtained at the time of contracting and before starting to edit it.

The consent for the scanning must be with an individual signature in the text, it cannot be hidden in the artist's contract but must be highlighted in capital letters and written, clarifying the independent remuneration of that image right and the time required for production of the republic, as well as the term for granting the right and a description of the stipulated use of the digital replica.

As a general principle and in the labor framework, the agreement establishes half-day extra pay when the producer must accommodate the production schedule, one full day for each extraordinary day that requires the creation of the replica and/or the scan. If the artist's remuneration for the creation of his digital replica is included in the general remuneration of the contract, what is known as “Schedule F”, it is necessary to demonstrate his express acceptance of said terms and annex.

On the other hand, the creation of the replica during the period stipulated as an “artist guarantee”, which represents the time offered to save filming details, does not generate an extraordinary daily payment.

… Contractual expertise is required to define the use of digital replicas. Taking into account elements extracted from the legal principles discussed, the material relevance of the use of digital replicas depends on the media recognition of the artist's image. While the creation of all types of replicas, whether sounds or images, contractually requires the informed consent of the owner of the actual image, there are more specific principles that require greater detail in the preparation of the contract.

The general rule is to establish in the contract a detailed description of the type of digital replica that is intended to be created and the assigned use. In the event of the artist's death, it must be defined, at least in Hollywood, whether that consent subsists or is extinguished. In particular, the contract must involve specific digital replication projects, already defined, given that consent - which must be established - will be presumed limited to them and not extended to possible future creations or uses not yet known. This is not a general transfer of image rights but rather a consent for the digital creation of a replica of an image that in itself can be considered a new work in light of copyright law.

The consent given for the creation of a digital replica created, for example, with artificial intelligence cannot be applied to new projects. Each new use requires new prior consent. In California, for independent digital replicas, those created outside the employment relationship in productions, the use is also limited by the First Amendment of the Constitution (freedom of speech), prohibiting the replica that generates criticism, docudrama, satire, parody or that affects history or any biographical work.

Compensation for digital replicas. The artificial intelligence replica industry represents an immense business worth more than a billion dollars that can lead to successive creations that lose their link with the initial replica. In the case of the employment contract in a media production, if the replica is used in the same work in whose contract it consented and in good faith, the producer must estimate the time that the artist would have used to act the same as his replica does. and pay it.

This is equivalent to the same remuneration that the artist would have received for personally doing that part of the work, even if in reality it was physically impossible to do so. Likewise, the employed artist will have the right to a residual if it is determined that everything will be carried out by the replica, discarding the parts carried out personally. From a remuneration perspective, the creation and use of the artist's digital replica are equated to her work.

Despite this, the collective agreement understands that there will be no compensation if the use of the digital replica covers the same work, for the same time and identical type of work as that already completed and remunerated in person.   It is a very sensitive issue since it favours the replacement of the human image with the image of its digital replica. If the digital replica is used in another production, compensation will be negotiable. Here the problems of differences in bargaining power with labor roots appear.

Digital alterations represent an evolution of replicas, normally used for other works and productions, such as video games, and impose a specific form of negotiation and compensation. This is not a case of a “fix it in post” which is precisely the right to edit images in post-production to remove them or change them cosmetically or reduce sounds, speed and time of movement, adjustments to dialogue or narrations. Anything that falls outside this exception requires special negotiation, except in the case of supporting artists, who authorize their facial movements to be corrected or repaired or dialogue added to them.

What are we seeing and hearing? When a digital replica has been generated entirely with artificial intelligence, even starting from a supporting artist to use it in a leading role, the possibility of the work being interpreted by its human artist should be prioritized to the extent possible. This is a crucial clause in contracts that seek to generate “synthetic replicas” that resemble more or less well-known artists without their participation in the creation.

These modern contracts from the world of digital media provide the dynamics of tension between the artist and artificial intelligence. His technique evolves daily and travels discreetly in different media precisely because images produced with artificial intelligence are difficult to detect and because we can no longer continue to believe in what we see or what we hear.

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