Imagine That IP Law Blog

On May 2, 2023, the Writers Guild of America (WGA) went on strike, initiating yet another standoff in the entertainment industry. One of the primary issues in the WGA’s contract dispute with the Alliance of Motion Picture and Television Producers (AMPTP) is the use of artificial intelligence and creative machines such as GPT-4 in union projects, which the WGA sought to prevent. In an interview with Vice, John August, screenwriter of Charlie’s Angels and Big Fish, stated, “these large language models are progressing at an incredible rate. AI-generated material isn't something that's going to become a factor in a few years. It's here now. It's lucky that we're negotiating our contract this year and not next year, before these systems become widely entrenched.”

The WGA has two main requirements. First, the guild wants to make sure that “literary material,” including screenplays, outlines, etc., can’t be generated by an AI, and the writer needs to be a person. Second, the guild also insists that “source material” can’t be AI-generated either. In Hollywood, writers are frequently hired to adapt “source material,” such as a novel, comic book, or other original work, into a screenplay to be produced… at a much lower payment rate than for original literary material. By using ChatGPT or similar tools to generate the outline (or even a detailed treatment) of an original story and then turning it over to a human writer to “adapt” for the screen, production studios could save significant amounts of money.

But this could be a mistake. As discussed in a previous article, “Copyright with no Author?”, the U.S. Copyright Office declared in March that works authored by AI artists or authors are ineligible for copyright protection, and that “[i]f a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.” (“Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,” 88 FR 16190, 16192 (March 16, 2023)).

When artificial intelligence is used in conjunction with human efforts, such as creating an outline with an AI and adapting it into a screenplay by a human writer as discussed above, the work as a whole may be copyrightable, but protection will not extend to those elements created by a machine. As the Copyright Office explained, “[w]hen an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application. In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim… [T]he resulting work as a whole constitutes an original work of authorship… In these cases, copyright will only protect the human-authored aspects of the work, which are ‘independent of’ and do ‘not affect’ the copyright status of the AI-generated material itself.” (Id. at 16192-16193 (emphasis added, citations omitted)).

This could place studio executives in a difficult conundrum: the more they disclaim the human author’s efforts adapting an AI-generated work to save money, the less the work can be protected by copyright. For example, claim that ChatGPT was used to create a detailed original story and that a human writer merely adapted it in order to pay them a reduced rate, and the entire work may be considered uncopyrightable. Conversely, argue that the writer’s efforts were significant and provided the traditional elements of authorship – literary, artistic, or musical expression or elements of selection, arrangement, etc. – so that the work can be protected, and you’ll have to pay them the full rate and place their name on the byline.

Given how much the industry relies on copyright law, the siren song of inexpensive AI-drafted material could lead producers right into the rocky shoals of public domain.