The Memo: SAG-AFTRA and WGA Strike

Group 723.png

SAG-AFTRA and WGA Strike

Taiwo Oshodi – 14 August 2023

Following months of strike action by the Writers Guild of America (WGA), the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) has joined them in protests to improve working and living standards for its members. Both organisations are in conflict with the Alliance of Motion Picture and Television Producers (AMPTP), and have been unable to strike a deal with the collective which includes major motion picture studios like Walt Disney, television networks like NBC and streaming services like Netflix and Apple TV.

So, what is it that has actors, writers, and other industry workers up-in-arms, and what are the terms that Disney CEO, Bob Iger called “very disturbing” and “unrealistic?” Well, the strike follows common threads seen across industries relating to a rise in living costs, industry changes accelerated by the pandemic, and safeguarding in the face of rapidly improving AI. All these counts are reflected in proposals put forward by both the WGA and SAG-AFTRA. The WGA’s proposals on pay, working conditions and AI would gain writers around $429 million a year, something that has been struck down by AMPTP. Instead, the major studios bought an $86 million a year offer to the table, 48% of which coming from minimum wage increases, and one without protections for AI use. A similar story can be seen in SAG-AFTRA’s proposals – and in AMPTP’s response. The actors are looking to ensure minimum earnings keep up with inflation and are also proposing compensation reflecting the changes in the industries business model where streaming now constitutes a larger slice of the pie.

Perhaps the most striking aspect of the unions’ proposals have been those relating to AI, specifically the use of previous works in training programs and the use of actors’ likeness in productions they are not directly acting on. The WGA are looking to stop AI being used for writing or rewriting literary material, being used as source material, and for MBA-covered material (a collective bargaining agreement covering most work done by the WGA) to not be used in training AI – all of these proposals have been rejected by AMPTP. For the actors the AMPTP has also offered limited protections for actors’ images and performances with regards to AI. All concessions put forward would still allow studios to use individuals’ likeness in perpetuity after one payment, make changes to dialogue and create new scenes without informed consent, and use individuals’ likenesses and images to train AI without consent or compensation.

Of course, technological advancements being a driving force for union action is nothing new. This is the first joint strike between the two unions since 1960, one which resulted in healthcare and pensions for the unions’ members, but one which was also in response to technological advancements and the resultant change in audiences’ viewing habits. Here, workers received a residuals system to compensate them when their films aired on TV. There are similarities in this regard, as the unions’ proposals look to respond to decreasing residuals due to a change in viewing habits to streaming services – while studios receive a cut from streaming residuals those gains are much more limited in form for actors, writers and other groundworkers in the industry. However, the introduction of AI to the extent it might now be used seems to pose a serious existential threat to professions within film and TV. As a result, it adds to the growing debate on AI regulation, and asks questions of how AI should be incorporated into employment contracts regarding personality and IP rights.

With the increasing prevalence of AI use across industries has come an increasingly complex regulatory landscape. Here in the UK, General Data Protection Regulation (GDPR) already addresses some concerns relating to the processing of personal data from AI data mining, requiring a lawful basis to be established for the use of personal data. This lawful basis encompasses performance of contract, legitimate business interests or consent, with the lattermost being pretty prescriptive in GDPR, requiring the subject to be informed through clear disclosure of how the data will be used. While these are all welcome protections for service users though, they do little to protect performers and writers’ rights in entertainment. In addition, studios typically hold ownership rights anyway, so have argued that the use of IP in AI learning and related media distribution is fair game.

It’s understandable then that, in tandem with SAG-AFTRA and the WGA’s campaigns in the US, the actors’ guild’s sister union in the UK, Equity, has been quietly running its own campaign at home. ‘Stop AI Stealing the Show’ hopes to improve the rights of performers and other creative workers in the entertainment industry in the face of rapid growth in AI. The campaign’s Early Day Motion in UK Parliament highlights the lack of specific UK laws for regulation of AI, noting that the current ‘outdated’ framework leaves performers open to exploitation. Further, Equity points out that even the Copyright, Designs and Patents Act 1988, which outlines performers’ IP rights is limited in AI protections. And with the UK Government conducting an AI and IP consultation last year finding that current protections exist for those using AI for work expressing human creativity as though it was any other tool, it would only seem to strengthen Equity’s argument.

It’s a similar story to that faced by the unions in the US, worldwide, and across industries. It has always been worried that advancing technology threatens livelihoods, and AI is the latest in a long line. So, are the strikes safeguarding for the future? Or futile efforts to row against the current? Well, as the war of attrition has continued, SAG-AFTRA has emphasised that they are only striking against AMPTP companies – that is, the major studios – allowing independent producers to apply for an Interim Agreement. This has allowed independent studios to continue productions under the strike, giving members opportunities to work, and creating leverage and increasing pressure on the AMPTP. Although these won’t fill the gap left by AMPTP studios, it is likely to significantly influence film and TV output and encourage the AMPTP to the table. The strikes have already had far-reaching effects on the industry with delays to major projects years down the line, but it is yet to be seen how this will influence each camps’ positions.

For anyone interested in media, employment, technology or IP law, it’s well worth keeping a close eye on developments in this space.