Using AI in filmmaking: the (current) legal issues

Young filmmaker clients recently asked me to work with them in realising their objective of adapting a contemporary novel by an increasingly popular writer into their first feature. Having finalised the terms of the film rights’ option with the novelist’s agent, the clients asked me to draft an agreement with their screenwriter. The provisions agreed with the screenwriter were clear and didn’t require any special terms. So far none of this was unusual.

Upon reviewing the first draft of the screenwriter’s agreement, I received an email from the filmmakers who were happy with what I had drafted but that they would like me to add a ‘no-AI-clause’ to protect the integrity of both the novelist’s original work and the filmmakers’ own reputation. Specifically, they want to provide that neither the novel itself nor the screenwriter’s works derived from the novel will be fed by the screenwriter through a generative or other AI-model for creative purposes, to include specifically “ideas, plot, character-work etc”. They acknowledged my inclusion of what is a standard clause in screenwriters’ agreements that, to paraphrase, all of the work must be wholly original to the screenwriter and must not infringe the rights or copy any other copyright work. However, the filmmakers want me to supplement this provision by specifically providing that the screenwriter shall not use any “help or guidance from GenAI”.

As the use of AI in filmmaking and other creative fields rapidly increases it’s encouraging that those who might otherwise not see anything wrong with using all available means, including AI, to bring their project to the screen, are more concerned with protecting the artistic integrity of not only themselves but also the original author.

It is standard practice in contemporary creative contracts written under English law - and also the laws of American states - to require authors to waive all moral rights in their work. Those rights include the right of integrity – the right not to have a derogatory treatment made of a work. And, yes, in the option agreement for this project, the novelist agreed to waive her moral rights in the original work. In other words, were it the case that a screenplay based on this novel was created using AI or otherwise and could objectively be said to be a derogatory treatment, as against my clients and those deriving rights from my clients, the novelist has no recourse.

With legal issues around AI ever proliferating, it will be interesting to determine the extent to which creatives and/or those who commission and/or finance productions approach the requirements for – or against – the use of AI in contractually enforceable provisions. Alongside this will be the evaluation how legislative bodies approach the use of training AI. The UK government is proposing a copyright law exemption permitting tech companies to train their AI models by using existing copyright works including films, TV shows and sound recordings without permission. If implemented, the proposal would require creatives to actively opt out of such training, in the way that some already do. This approach is similar to that of the European Union but has already engendered opposition from the creative sector in the UK.

Without legislation, creatives are left to approach the multi-faceted legal issues raised by the use of AI by applying general principles of law. If, as seems the case, governments will not implement tailored protections against the blanket use of AI, resort to general legal principles will at least provide a framework for resolving issue and, of course, established contractual protocols that may be applied to govern specific uses of copyright work and recorded and filmed performances of them.

My recent podcast for Spotlight “AI and Performer Rights” may be streamed at https://www.spotlight.com/news-and-advice/artificial-intelligence-and-performer-legal-rights/