Hollywood’s AI Compromise: Writers Get Protection, Studios Aim for Copyright

A clearer picture of how studios intend to incorporate artificial intelligence into the screenplay production apparatus is coming into view.

More than 11,500 members of the Writers Guild of America were given the greenlight on Wednesday to return to work after a vote to accept a tentative deal from the Alliance of Motion Picture and Television Producers that ended the 148-day strike. Included in the agreement were provisions placing guardrails around the use of generative AI that not only protect writers but also the studios, which are signaling they plan to pursue copyrights of works created in part by AI tools.

The deal doesn’t bar the use of AI but restricts how it can be credited and utilized.

“The Companies agree that because neither traditional AI nor GAI is a person, neither is a ‘writer’ or ‘professional writer,'” states the Memorandum of Agreement. “Therefore, written material produced by traditional AI or GAI shall not be considered literary material.”

The agreement details that the provision of work created by AI, which must be disclosed by both sides, won’t affect writers’ credit or compensation and cannot be the “basis for disqualifying a writer from eligibility for separated rights.” But nestled in between the lines of those protections is confirmation that studios aim to have writers work collaboratively with AI tools in the screenwriting process, though it can’t be mandated.

By keeping AI on the table, studios are looking to copyright material created by writers working in conjunction with the human-mimicking bots. Essential to the copyrightability of such works is a human rewriting or at least touching up any AI-produced script. Material solely produced by AI is not copyrightable. This means that the studios need writers to pursue copyrights and exploitation of such works.

“The studios want to ensure exclusivity and copyright ownership,” says Darren Trattner, an entertainment lawyer who represents writers, directors and actors. “They want to make sure that they have ownership of all the results and proceeds, and if AI is used, there could be an issue with that.”

The AMPTP appears to have built in safeguards that protect against use of AI that could undermine copyrightability.

“A writer must obtain the Company’s consent before using GAI,” the MoA states. “The Company retains the right to reject the use of GAI, including the right to reject a use of GAI that could adversely affect the copyrightability or exploitation of the work.”

Sarah Odenkirk, an intellectual property lawyer, says that this part of the deal indicates that studios are “very well aware that if a writer uses generative AI to create a work,” then “they won’t be given as strong of copyright protections that they wanted” because material created by AI isn’t copyrightable.

Writers are rightfully concerned. In an Aug. 11 proposal, the AMPTP signaled that it intends to harness AI tools that can generate loglines, pitch ideas and storylines in seconds. It stressed “landmark protections for writers” in which their “compensation, credit and separated rights will not be affected” when generative AI is used.

The AMPTP described its offer as meeting the “priority concerns the writers have expressed.” It was the opposite; the AMPTP was arguably getting the benefit of the bargain, with the potential to significantly undercut scribes’ work down the line.

The U.S. Copyright Office currently maintains that most AI-generated works are not copyrightable. In a statement of policy issued in March, it said it’s “well-established” that protection can only be granted to works that are the “product of human creativity” and that authors “exclude non-humans.” A work containing material produced by AI can only support a copyright if a human “selected or arranged” it in a “sufficiently creative way that the resulting work constitutes an original work of authorship.”

If they have a person rewrite or touch up AI-generated material, the studios calculated that they could then position the work as having had enough human input to qualify for copyright protection. Without writers playing a part in the screenwriting process when AI is used, studios would essentially be creating uncopyrightable material. This would limit opportunities for exploitation since the works could enter the public domain, says Odenkirk, who observes that this serves as a “natural barrier” against studios completely replacing writers with AI tools.

“If a human touches material created by generative AI, then the typical copyright protections will kick in,” a source close to the AMPTP said in August.

At the same time, studios can arrange their employment relationship with the writer as a work-made-for-hire, which would allow them to list themselves as the owner of the copyright. This could enable them to sidestep writers exploiting a provision in copyright law enabling them to recapture previously transferred IP rights after a certain period of time. Studios have been fighting costly legal battles over the right to iconic franchises birthed in the 1980s, including Top Gun, Predator, Terminator and Friday the 13th.

The determining factor of the copyrightability of AI-created material is the extent to which a person had “creative control over the work’s expression and actually formed the traditional elements of authorship,” according to the copyright office. A writer, for example, could modify material originally generated by AI to such a degree that it meets the standard for protection. In these instances, only the human-authored aspects of the work will be granted protection. The copyright office requires applicants to disclose the parts of their work created by AI.

Amid this backdrop, courts are wrestling with the legality of using copyrighted works to train AI systems. Absent in the deal is mention of whether the studios will use writers’ work as training data — a sticking point in negotiations. The agreement, which acknowledges the legal landscape around the issue as “uncertain and rapidly developing,” says that both sides reserve all rights to pursue litigation over the unauthorized exploitation of material to train AI systems. It appears that studios maintain that they have the right to use writers’ work as training data, according to comments made by negotiating committee co-chair Chris Keyser in an interview with The Hollywood Reporter. “The companies have, they claim, some ongoing copyright rights in using our material, and we claim certain contractual rights that limit that or would compensate us for that,” he said.

The tentative deal’s Memorandum of Agreement punts the issue under a term requiring regular meetings at the request of the guild to “discuss and review information related to the Company’s use and intended use of GAI in motion picture development and production.”