AI vs Human Creation: A Conversation with Entertainment Lawyer Christian Simonds

As the WGA strike continues on, and SAG possibly taking up arms beside the WGA by the end of June, there's a lot on the table up for debate between the Guilds and the AMPTP, one notably being the use of and the fear of replacement by Artificial Intelligence. 

The advancements in technology in the last two decades have been wildly shocking and awe-inspiring, especially how it's being utilized for and against humans (from job replacement to weaponization), to a certain extent. It should come as no surprise that AI could and would have specific capabilities - which leads me to wonder how much of our beloved sci-fi films and TV shows of yesteryear and present have directly inspired these technological advancements - perhaps that's for another article...but I digress. 

AI and how it affects writers and creatives as a whole is a very big issue and should be taken very seriously. Here is what the WGA proposed regarding AI per the WGA Proposal document as of May 1, 2023:

We need a unilateral understanding of how it will be used and used in conjunction with our creative roles. And most importantly, how our creative work is protected with the use of AI. It's not like this technology is going away, so how do we as creatives use this as a tool, if at all? And how do we protect ourselves and our work? 

Christian Simonds, entertainment lawyer, and leading partner at Reed Smith's Entertainment & Media Industry Group, answers those questions and more pertaining to copyright, utilizing AI as a tool, what the future holds for writers negotiating terms, and more.

This interview has been edited for content and clarity.

Sadie Dean: What is the future of the writer, AI, and copyright?

Christian Simonds: Obviously the WGA is currently on strike, so anything that is in the process of being developed in conjunction with the writer - so if you've got a writer that you've engaged for writing services, obviously, all that has stopped, right? And then if you've got a project that you picked up on spec, or was already written that you've already paid for the services, you have to stop there as well. Because obviously, if you're going to make any changes to that script, or if you're going to continue to develop it, you can't. It's really just those projects that are either kind of in the process of being produced and there's no more changes that are going to take place with the script.

In terms of projects in the future, obviously, if it's a WGA-covered project, that's first and foremost going to be a problem, right? Because obviously, you need to develop that. But then in terms of those projects that are, ‘Hey, the writing elements of this project are complete and we're ready to move it to the next stage.’ Oh, no, what do we do vis-à-vis SAG and the potential for that strike on the horizon? And I do think that the way things are trending that it is a real possibility that SAG is going to go on strike. I forget when the last event happened that both SAG and WGA went on strike, but it's been a long time. And obviously, it ups the leverage of the Guild significantly, because once they crossed the picket line, it's going to be significant leverage to the Guilds for purposes of trying to push some of these issues through. So, it'll be interesting.

It's kind of a wait-and-see, but I feel like we're trending in that direction. And obviously, AI is one of the issues that's on the table. And in terms of, positions of the guilds versus the studios and AMPTP, we represent SAG, and we represent some of the guilds so I can't really speak to a whole lot just for the purpose of who our clients are. But, AI…we're doing right now, we're putting together a big white paper internally about AI in general, and how it touches the various industries within entertainment and media. It was a big discussion point for our firm at our partner retreat recently. I think it should be for a lot - not just the legal industry, obviously, for Hollywood, it's going to have touchpoints across all elements of certain service providers. And then there's elements, obviously, they're a little scary.

Sadie: Right, it’s going to so many elements of the creative industry as a whole. And we're seeing that with art, we're seeing it with music production, and now obviously more so with writing. So, in terms of copyright, and what studios are doing or planning to do in terms of using AI to put together an outline, or a screenplay, and then having a writer come in and maybe rewrite that or vice versa, who owns the copyright? And can you copyright something that AI is spitting out?

Christian: Currently, you have to disclose that. So, if there's any AI elements of something that you've put together, within your manuscript, or screenplay, you literally have to disclose that when you're filing for copyright protection. So say, hey, these elements of my screenplay or these elements of my book are AI-generated. And so therefore, those elements of your screenplay are not protectable currently under copyright law, but the balance of what you've put together are. So then it becomes, from the studio's perspective, they're looking at the totality of it, right? And then you take that and then you put that into the movie, obviously, that movie is then copyrightable. The screenplay may have elements of it that are not protected by copyright law. But the totality of it is, so the whole thing you're protected, but there's elements within that, that you've disclosed, and you have to disclose them, technically, right? Pursuant to the letter of the law, but obviously, who's policing that? I guess is the question, who is combing through each of the screenplays and saying, ‘Hey, these four pages are AI-generated.’

I guess the point is, if the studio is doing that, it's providing AI background underlying materials to the writer, you're putting the writer in kind of a weird, difficult position. So, what elements of that copyright is ultimately being incorporated into that screenplay and how you kind of weave through that distinction is TBD. So, the letter of the law seems easy to interpret, ie, if you have AI-generated content within your screenplay, you have to disclose that. But how does that work if your screenplay in of itself is realized is based on underlying AI materials? Again, that underlying story may not be protected, but the screenplay itself, the writer’s interpretation of AI that generated what he's put together…I think that element of it is important to that distinction.

This technology is very impressive, right? Particularly on the legal side of things. And there's probably potentially going to be a point in time where a lot of what lawyers do will potentially be replaced by AI, particularly on the research side of things. So, it's really powerful stuff, which is scary. I think, obviously, particularly to the creative industry, and certainly to the legal industry.

Sadie: Yeah, absolutely. It’s how do we use it as a tool? And the distinction between it being like a word processor, and you're using it to spell check for you or something like that. So, if a writer is using AI and they say, ‘Hey, give me some ideas for a dystopian comedy,’ and it spits out five story ideas, is the writer protected under copyright if they write a story based on that?

Christian: It's like the derivative concept, right? Which is a unique derivative of whatever it ultimately originally was. So I think that a lot of what's out on the table for purposes of debate does not then nullify the entirety of the copyright. Or is that derivative copyrightable? Again, I think, the argument can be made that because the writer, even though it's based on AI-generated underlying materials, the writing in and of itself is unique, and it was put together by a human. So I think that those are important distinctions for purposes of kind of extending that copyright protection to whatever came out of it to the extent it was truly kind of written by a human and is derivative of something that's potentially AI.

And these are things that are probably going to be debated at length for the next few years, right? It's kind of like, polishing up how AI is going to interplay with human creation. Because it's only going to get more complicated as AI continues to evolve. And everyone's going to have to take a really long look at it. And I think part of it too, one of the things that's on the table between the WGA and the studios, is how do we address this as AI continues to evolve? 

AI is evolving so quickly, it's almost like you got to stay on top of it almost on a monthly basis. AI this month could be completely different than what's transpiring next month or the month after that in terms of how people are utilizing it, particularly on the creative side. So, yeah, I think the ability to revisit the WGA agreement with the studios on a regular basis because of how AI is evolving is an important concept that I think protects the writers, for purposes of, hey, we're not going to be agreeing to something that's going to be antiquated a month from now. So being able to be fluid in terms of how you're addressing the evolution of AI, I think is important for writers.

Sadie: You also cover other creative aspics of the industry in terms of like video game publishing, and as well – it’s already coming into play or has been and what's being generated on their end and those kinds of discussions from the people who are making the game to people who are writing it and publishing it…

Christian: Yeah, I think that's right. Video gaming, I mean, that's kind of a whole, separate kind of conversation in and of itself. [laughs] It’s almost already kind of intertwined with AI already. That is even muddy in terms of how that evolves, because I think it's already integrated to a significant degree. But things that have been the foundation of the creative industry like acting, writing, directing, it's all so hyper-human-centric, right? The value of the work product of actors and directors and writers is that human personality. It's what you're injecting into these pieces of IP, that give it its value. And so, you replace that with AI technology, you’re undercutting the creative community. What then are we talking about if we can just say, ‘Hey, computer I want a screenplay based on these five elements.’ And then 30 seconds later, you have that. You're not getting that human emotion that is so inherent in all of us that makes the audience cry, makes the audience laugh. AI will probably be able to do that as well, but that connection is potentially going to be lost, which is just wild to think. And I think it's a really important issue. And I think we've got to be appreciative of that human touch to these types of creative industries, that are in my opinion, kind of irreplaceable.

Sadie: I totally agree on that front. Going back to the studios, with them feeding these prompts into AI, I am so curious, especially from the development standpoint, who is feeding these prompts into AI? Is that your development exec? Is it the unpaid intern? And what kind of paperwork do you think they'll be signing in the future?

Christian: Yeah, and that's the thing, right? And I think that's what you need to be mindful of, is that work product. The AI work product is not copyrightable. So, if you're saying, ‘Hey, we want to come up with an idea for the next series about high school kids, and here are the story arcs that we want to achieve.’ And you type that in and it pumps out something, in and of itself is unpredictable, right? It gives you ideas, and then potentially you can take those ideas and have a human writer then advance those forward, but that piece is not technically protected by copyright, because it's AI-generated. So that treatment or that outline, or that summary, or that Bible is not going to be protected. What then do you have? You just have like a bunch of ideas, you put all the pieces together, and you kind of have that storyline or that Bible or that outline, but then technically you need a human to then continue to evolve that story forward.

Sadie: Right, which goes to the basics of you can’t necessarily copyright an idea because everyone can have the same idea, it’s just how do you make it your own? We, as writers, need to treat it as a writing tool.

Christian: Ultimately, you're researching the story - what are you doing? You're Googling, right? You're going on Wikipedia. You're trying to find facts. And I think it's the same thing for us as it relates to AI and how it's going to be a value add for us. It's the same idea, right? It's like, hey, instead of us spending three hours to comb case law, on Lexis, or Westlaw, or whatever it ultimately is, how can you potentially use AI? AI can aggregate all of that in seconds. And I think that's a real value add, but I think, to then replace the actual writing is detrimental, to not only writers in terms of a profession, but just us as a society to a degree. think it can be used effectively as a research tool, but you just got to be careful that you're not wholeheartedly replacing the writing with AI content. So, if it can generate ideas and put together research materials for you, for purposes of potentially then going forward and writing something, sure.

Sadie: In terms of representation, and the future of that, and what that will look like in terms of agents and managers, and even yourself, and what those negotiation deals will look like because of AI on behalf of the writer? What can be done to best safeguard writers?

Christian: In terms of writers and how to protect them against AI, I think, for the most part, they're going to be the ones that are controlling the writing process. If you're being given materials, which we call studio materials or company materials, if you're being provided materials, saying hey, here's what we want to use, obviously, if those are AI-generated, that probably should be disclosed. But the writers really will control the process. So, it's almost a question what then do the writers have to disclose? What do those agreements look like?

Say I've hired you to go write a screenplay about X, Y, or Z. And you come back and you deliver that to me, am I getting reps and warranties from you that you're disclosing to me that 10 pages of it are AI-generated? We need to know that, right? I'm not saying me, I'm saying the studio, because we need to know for chain of title purposes. So it goes both ways. I think we all need to be open about how AI is being integrated into the writing process on both sides. And I think it's important for writers, obviously, you have to safeguard them in terms of being replaced by AI. Again, I can't imagine a world where that happens, unless we've all become heartless to a degree and just lack the love of a creative. But I do think there is an ability to use it as a value add, like I said.

But I think what's going to be important is how that is being disclosed, right? Or how it's been integrated into the final writing product. Because now I'm putting my financier’s hat on now, I'm putting those people that are now contributing kind of at-risk capital to make this project. If it's AI-generated, and you didn't tell me that and now we can't copyright the screenplay, now you're affecting my investment, and now you've put all my money at risk.

We all have to work together in terms of how it's being used. Which is, apart from the idea of being replaced, that should never happen, but once we've decided, and we provided guardrails in terms of how it's being utilized and integrated, then it's just a matter of disclosing how it's being used. Because right now, technically, it has no copyright protection - how that evolves over time, particularly from a derivatives concept, when does that AI-generated content - if I've given instructions to AI to generate something, at some point, is that going to be enough to provide copyright protection, because I wouldn't have generated it had it not been with my instructions, right? 

Like that's I think going to be the next big debate in terms of copyright protection around AI. At what point is it purely AI-generated content? And at what point is AI just working on behalf of the concepts that I’ve come up with and they're just helping me kind of evolve those and acting as support for my creative vision, based on my instruction? It never would have come up with this, had it not been through my instruction, right? It's the same thing with if I'm paying you to write something for me, technically, that's my copyright, because it's a work for hire. Is that relationship going to be the same with AI? I've told AI what to do. And if it had not been for my instructions, AI would have never done it. So same thing with you, if I instruct you to go write about X, Y, or Z, and you do exactly as I've instructed, and you deliver it to me, those results and proceeds are mine as a work for hire. What's the difference? Why is one different than the other? We could talk about this for hours. [laughs]

Sadie: [laughs] We could. How early in the process should a writer think about getting a lawyer involved for these types of negotiations?

Christian: I always say if you're ever debating that, whether you should do this or hire an attorney or not hire an attorney if you're even debating that, you're probably best served to have a conversation with an attorney. Because your intuition is usually 100% correct. So, if you feel like you're at that point, should I talk to someone? Should I not talk to someone? Certainly, talk to someone. It never is going to hurt. Most often, it's not going to cost you anything, because they'll either say ‘Yes, certainly you need my advice, and let me protect you,’ or ‘No, you're probably fine advancing this forward on your own.’

But I'm always of the opinion, it's going to cost more later, to kind of try to fix things versus if you bring in counsel earlier to kind of help make sure you're protected the right way. That's blanket advice that I always have for everyone, because I always find that it's much harder to fix things down the road, and much more expensive versus having just done it the right way, the first time around.

It’s already commonplace with respect to screenplays now, particularly when you're delivering projects, you have to annotate that screenplay, right? Like ‘Hey, we're going through clearances, where did this come from? Where did you get this?’ That is obviously those same concepts that apply to the AI content. So, if something is AI generated within your screenplay, that should be disclosed when we go through the clearance process. So, making sure that that's part of that annotation when you're asked to do one as part of writing something, obviously, be mindful that's gonna be like I said, it's gonna need to be disclosed.

Sadie: Save yourself money down the road.

Christian: Yeah, absolutely. And it's the same concept as plagiarism. If it's AI-generated, tell us now, because if we find out later, or someone discovers it later, it's going to be a much bigger issue. 

Visit the WGA website for strike updates and further information here.