In 2023, SAG-AFTRA film and television performers stayed out on strike for a grueling 118 days in no small part due to AI. With DALL-E and ChatGPT still a relatively recent phenomenon but the tech rapidly encroaching on Hollywood, the pressure was on, and the union eventually struck a deal that left some members pleased and others dismayed, fearing the union had ceded too much ground.
A year and a half later, the performers’ union is starting to refine its approach to the technology, as a new tentative agreement covering commercials work demonstrates. The Commercials Contracts, whose in-depth details were released on May 8, represent the first time in a major deal that SAG-AFTRA has restricted access to its members’ performances to train generative AI systems. The union also contends that the contracts are poised to disincentivize producers from using AI-generated performers over human performers specifically as a cost-saving mechanism.
“Really, it takes all of the key provisions we bargained in prior contracts, even as they’ve been evolving over the last year or two years, and takes it one step further in a really important way,” says SAG-AFTRA national executive director Duncan Crabtree-Ireland, who led negotiations for the union.
Stacy Marcus, a partner at DLA Piper and the chief negotiator for the Joint Policy Committee group comprised of advertisers and advertising agencies, says the AI provisions are an important step forward. “Preserving performers’ ability to work and to be compensated for the roles that they do while enabling advertisers to take advantage of technologies that are available, I think that’s huge,” she says.
None of it is a done deal yet; SAG-AFTRA members are voting on whether to ratify the agreement until May 21. And while contract language may look great on paper, limitations can always emerge when these rules are actually put into practice.
Still, the union is touting the AI language as a key feature. Under its terms, producers can’t train generative AI models with covered work unless they get the express consent of the union. That marks a noticeable shift from 2023, when the union and Hollywood studios and streamers essentially just promised to meet once in a while “to discuss appropriate remuneration, if any,” as the memorandum of agreement stated at the time, from generative AI training. To the disappointment of some union members, there was no express ban on training in that agreement, while this one restricts it.
The new deal also attaches a specific cost to the use of AI-generated performers that don’t resemble specific, real people (what Hollywood labor contracts call “synthetic performers”) over human actors. In addition to some general language forbidding employers from using these performers principally to save money on human actors, the agreement requires producers using a synthetic performer alongside at least one human principal performer to pay a host of expenses — 1.5 session fees and benefits contributions based on those fees plus estimates of use and holding fees that would have been due to a human performer, if one had been hired. In the case of a commercial that only utilizes synthetic performers, the union is supposed to negotiate with the producer over a potential contribution to these benefits plans.
SAG-AFTRA views this as an improvement on the 2023 TV/theatrical deal, where producers only agreed to provide the union notice and “an opportunity to bargain in good faith” if a synthetic performer was used in place of a human performer. “It’s more clear to all concerned what the consequences would be of choosing to walk down that path,” says Crabtree-Ireland.
Marcus says that, from the producers’ point of view, synthetic performers create “production efficiencies” that lead to cost savings, but that the goal with their use is not to take employment from human performers.
Another pain point the deal addresses? Digital replica security, which has concerned some union members who work in film and television. The agreement restricts access only to those who have actual business reasons to use a replica and requires that producers make “commercially reasonable efforts” to keep it secure. Employers must destroy a replica after a certain period of time unless a performer gives consent otherwise.
From an employer viewpoint, the deal addresses salient questions about how to deal with the new technology. “In the past three years, it really has become an issue at a technology level where people want to make sure that they’re doing it correctly,” Marcus says. The contract language allows advertisers to use editing technologies with AI components that have long been in use and “balances the industry’s need to take advantage of available technologies to improve production efficiencies and value” while putting guardrails on its use for performers, she adds.
Of course, the union didn’t fix everything that has bothered some performers about its past AI provisions. It’s still possible for an actor to get hit with a last-minute ask to get scanned for a digital replica, which a couple TV performers reported to THR in 2024. (Still, if a performer only learns that an employer wants a digital replica created for a role as they’re starting a job, that performer can refuse and still be paid for the day if the employer then decides not to use them. And if a producer knows at the casting stage that they want to create a digital replica for a role, they’re supposed to put it in the casting notice.) Synthetic performers can still take roles that in another era might otherwise have gone to humans.
But it’s a start towards addressing some of the qualms performers have with the union’s first major deal to handle AI. After all, SAG-AFTRA will be back at the bargaining table with Hollywood studios and streamers next year, presumably with the intention of bolstering its AI protections as the technology matures.
In the meantime, the union clearly remains focused on holding its ground when it comes to AI. It’s currently in a deadlock with video game companies over AI proposals that a union negotiator has alleged would result in “flagrant exploitation,” a threat deemed important enough that its performers have now withheld their work from major companies like Activision and Electronic Arts since July 2024.
The question now is, could the union’s commercials contracts, if ratified, make a dent on future negotiations? When asked, Crabtree-Ireland was circumspect. He said, noting that each contract is different and employers have unique approaches, “I’m hopeful it’s the first step in a trend in that direction, but I don’t doubt further steps will be hard fought.”
