The film and television industry around the world heaved a sigh of relief as news broke last week that the Screen Actors’ Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”) and the Alliance of Motion Picture and Television Producers (“AMPTP”) finally reached an agreement on the deal which held Hollywood in limbo for 118 days. SAG-AFTRA announced that the strike would officially end at 12.01am on Thursday 9 November, meaning struck productions were able to resume work. The strike had not only stopped actors going to set but also prohibited any form of promotion or publicity, meaning an enormous amount of disruption to carefully planned release schedules. 

The tentative agreement for the 2023 TV/Theatrical Contracts was approved by SAG-AFTRA’s National Board with an 86% to 14% majority and will now go the membership for approval. 

What’s in the deal?

The new agreement is yet to be released in full, but SAG-AFTRA have provided a summary document and issued a public statement on their website setting out what has been agreed. The key points are:

• “Above-pattern” increases to the minimum compensation for performers;
• Clear provisions protecting actors in relation to the use of AI; 
• Proper participation bonuses on streaming productions;
• Protections for diverse communities;
• Compensation increases for background performers; and
• Increases to Pension & Health caps.

AI appears to have been one of the final hurdles. Only a few days before the tentative deal was announced, famous actors were taking to social media in response to reports that AMPTP were seeking the right to create digital replicas of deceased actors without requiring any consent from the deceased’s estate or from SAG-AFTRA. 

The AI section of the summary is extensive and largely reflects the AI provisions included in the SAG-AFTRA interim agreement which independent productions could sign up to during the strike. The tentative agreement deals with digital replicas (whether created in the course of employment or independently) and how these are to be created, treated and used by production companies. There is a heavy focus on “clear and conspicuous” consent, going as far as requiring specific written statements, whether part of an employment contract or separately, that have been initialled and/or signed by the performer. It ensures proper compensation for creation and usage including the requirement that performers who consent to a digital replica being used are paid at a pro-rata daily rate or at the minimum rate for the number of days the producer determines the performer would have been working to film the same scene. This essentially removes the cost benefit of production companies using digital replicas, aside from the travel, accommodation and subsistence costs associated with bringing talent to set. 

On deceased performers, AMPTP has had success in negotiating that consent given during a performer’s lifetime continues and does not expire after death, unless some express limitation is given. However, if that consent is not provided during their lifetime, a performer’s estate or the union must give consent on their behalf.

Digital replicas have been a particular concern for background actors, since it is these performances which producers could generate more efficiently and cheaply, rather than using numerous extras. SAG-AFTRA seems to have had success on this front in procuring agreement that similar consent and compensation protections will be offered to background actors as to principals. The tentative agreement also requires background actors to be upgraded to day actors if their lips or facial movements are digitally altered to look as though they are speaking. 

Digital alteration to performances carries similarly rigorous consent requirements (except in certain circumstances). Alongside these, there is careful wording around generative AI and machine-learning, protecting performers’ right to consent to generative AI systems being trained with their image. 

In a press release following the announcement of the deal, AMPTP hailed the tentative agreement as “a new paradigm”, stating that the new deal, purportedly worth more than $1 billion, has the biggest contractual gains for SAG-AFTRA members in the union’s history.

What happens next?

For now, watch this space… if (and, most likely, when) this agreement is ratified, it could have far-reaching consequences for the global film and television industry. Along with proper remuneration and other concerns, AI is a key area of focus for the UK entertainment industry and the recognition by the major global studios of the need for proper protections for performers shows a positive direction of travel in the ever-changing technological landscape.

In the meantime, cinema-goers and television-watchers alike can enjoy what will hopefully be a swift return to regularly scheduled programming, as the lights are switched back on in the studio lots across the world.