Some four months in and the heated labour dispute between the Writers Guild of America (WGA) and Alliance of Motion Picture and Television Producers (AMPTP) is showing little signs of cooling.
Among the key areas of contention behind the strike is the proliferation of generative AI technologies and the implications these might have for established actors, extras and writers alike. What’s interesting to see, noted Michael Brunero (pictured) head of tech, media & IP at CFC, is how the flames of these concerns are being fanned by the trends currently governing the direction of travel in the media and entertainment space.
“Right now, content is king,” he said. “Nobody can get enough of it, there’s more platforms than ever and everyone can be a creator today. I think we’re still very much on the journey of understanding how valuable content is.
“But you only need to look at what’s going on in Hollywood, to see that people are increasingly realising it’s valuable and looking to get an extra slice of that where they fit in the supply chain. The writers’ strike has just gone to show how valuable they are and that, maybe because content has become so accessible, their talents have not necessarily been valued highly enough. And I think that’s a huge risk for the entertainment industry right now.”
The very make-up of the entertainment sector is on a journey, as where traditionally the space has been dominated by professional creators and artists, social media has levelled the playing field, essentially allowing anyone to become a content creator. It’s easier than ever to create content, he said, and to find a platform for that – and AI technologies are emerging in the context of this increasingly lowered barrier to entry.
AI is enabling machines to produce content in a new and expedited way, he said, and while this is in keeping with the changing idea of what a content creator looks like, it’s happening at an unprecedented pace.
“I don’t think we’ve ever seen anything quite as fast as this and the technology has continued to evolve since ChatGPT first came to the forefront,” he said. “AI does have the potential to revolutionise every industry to some degree which is probably why there’s a lot of fear around it.
“But I think that entertainment is one area which people thought was going to be safe because it’s about creativity and the heart behind output. Then you look at some of the work AI can produce and it’s really quite fantastic. So, the key trend I’m seeing face the entertainment industry is that it is really being upended and everyone’s now looking at the value chain and their place within it.”
Conversations with brokers and clients reveal that AI is becoming an increasing focus, he said, particularly as they look not just to grapple with the moral, ethical, and risk management implications of the tooling but also the opportunities it presents. Some companies are picking up on these opportunities and looking to leverage them to find new ways to earn income or drum up new business.
Brunero noted that AI is creating a fascinating dichotomy in the creative industries. For instance, on one side of the coin, you have photographers who want to protect their work and on the other, you have creators using AI to produce new images.
He is seeing first-hand how the new technology is impacting tech, media and IP alike. AI companies themselves are examining the risks of the data they’re using, he said – where it comes from, who owns it, fair usage, etc. That comes all through to the media side where the people who are creating original content rightfully feel their IP deserves to be protected.
“Which comes down to discovering how the world of IP can deal with a non-human, non-legal entity creator,” he said. “That’s a question that’s feeding into our conversations constantly and in my entire career, I don’t think I’ve ever had as many discussions with people invested in technology as I’ve had around AI.
“The difficulty we have is that IP law is super old and super complicated and it’s designed to be objective. Then you put technology on top of that which is super new and super complicated. Then you overlay that with the idea of art – which is both old and new, and super subjective. And then you say, ‘alright, now all play nicely together in the park!’ It’s just never going to work that way.”
The sector must learn to expect unexpected outcomes and consequences from this interplay because no single element was designed with the others in mind. Art and law alone are hard enough to combine effectively without adding a new dimension of technology. It’s exciting and it’s terrifying in almost equal measure, he said, and as the technology element continues to evolve, discussions about the legal ramifications of AI will not be limited to the insurance industry.
It’s still relatively early days in the dawn of generative AI, but groundwork is already being laid for the establishment of legal precedents via several high-profile lawsuits. In the US, authors Sarah Silverman, Christopher Golden and Richard Kadrey are each suing OpenAI and Meta over dual claims of copyright infringement. Meanwhile, earlier in the year stock photo provider Getty Images filed a lawsuit against Stability AI Inc, accusing it of misusing more than 12 million Getty photos to train its Stable Diffusion AI image-generation system.
“That’s where question marks over fair use and to what extent you can use other people’s content to create something new, under certain rules, come in,” he said. “Then on the flipside, you’ve got Shutterstock which has gone the other direction and said, ‘Well, you’re probably going to use it anyway so I’m going to enter into an agreement with Meta to work together to produce new content’.
“So, already you’re seeing two very different reactions to the AI revolution from two businesses that on the face of it look identical. And that is exactly why it’s really hard to come out with consistent outcomes because people see different opportunities or different threats in the same space.”
What is clear, he said, is that the tech and IP laws that were already outdated before ChatGPT came along are looking increasingly less fit for purpose. He is expecting to see further legal action as AI and IP continue to be thrown together, and that’s not just true of the art or film world, but every element of the entertainment sector, with recent legal action around music and copyright laws revealing the challenge the law is facing while trying to keep pace with the rate of change.
Given that accelerated pace, for Brunero and his team, the emphasis is on trying to keep brokers and clients up to date with what’s happening in the market – and to help manage and mitigate their exposures when it comes to IP and AI.
“While the conversations we’re having are constantly changing, the fundamental questions for us at CFC are the same,” he said. “How are we finding ways to insure the businesses of the future in the context of AI, because it’s not going away? How do we manage the unknowns that will emerge when even the most traditional of businesses will be using AI? And what’s that going to mean for our existing portfolio of tech and media clients?
“We don’t have all the answers and we don’t know exactly how this is going to play out. But as an innovative insurance market looking to support clients with emerging risks, these are the areas we have to be laser-focused on. And these are the questions we need to be asking, and answering, as the outlook becomes clearer.”
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