ARTIFICIAL INTELLIGENCE HEADLINE FROM THE “IF YOU CAN’T BEAT ‘EM, JOIN ‘EM” DEPARTMENT

Earlier this week, artificial intelligence video synthesis firm Runway AI, Inc. and Lionsgate Entertainment Corporation announced a partnership this week to create a new AI model trained on Lionsgate's film and TV library. The deal will allow Runway to legally access the library as training data and will also reportedly provide Lionsgate with tools to enhance content creation while potentially reducing production costs.

Lionsgate has apparently decided that AI is a way to boost efficiency in content production. Michael Burns, Lionsgate's vice chair, stated in a press release that AI could help develop "cutting edge, capital efficient content creation opportunities." He added that some filmmakers have shown enthusiasm about potential applications in pre-production and post-production processes. Runway plans to develop a custom AI model using Lionsgate's proprietary content portfolio. The model will be exclusive to Lionsgate Studios, allowing filmmakers, directors, and creative staff to augment their work. While specifics remain unclear, the partnership marks the first major collaboration between Runway and a Hollywood studio.

As Runway co-founder and CEO Cristóbal Valenzuela stated in its press release: "We’re committed to giving artists, creators and studios the best and most powerful tools to augment their workflows and enable new ways of bringing their stories to life … the history of art is the history of technology and these new models are part of our continuous efforts to build transformative mediums for artistic and creative expression; the best stories are yet to be told."

As everyone now knows, generative AI models are master imitators, and video synthesis models like Runway's latest Gen-3 Alpha are no exception. The companies that create them must amass a great deal of existing video (and still images) as samples to analyze, allowing the resulting AI models to re-synthesize that information into new video generations, guided by text descriptions called prompts. The problem for the AI world is that wherever that training data is lacking, it can result in unusual generations. Until recently, AI companies have gotten into legal trouble for scraping vast quantities of media without permission. In fact, Runway is currently the defendant in a class-action lawsuit that alleges copyright infringement for using video data obtained without permission to train its video synthesis models. While companies like OpenAI have claimed this scraping process is "fair use," US courts have not yet definitively ruled on the practice. There are numerous pending lawsuits concerning AI as it applies to music and sound recordings as well as film. With other potential legal challenges ahead, it makes sense from Runway's perspective to reach out and sign deals for training data that is completely in the clear. Even if the training data becomes fully legal and licensed, different elements of the entertainment industry view generative AI on a spectrum that seems to range between fascination and horror. The technology's ability to rapidly create images and video based on prompts may attract studios looking to streamline production. However, it raises polarizing concerns among unions about job security, actors and musicians about likeness misuse and ethics, and studios about legal implications.

As evidenced by the statements so far, news of the deal has not been received kindly among vocal AI critics found on social media. On X, filmmaker and AI critic Joe Russo wrote, "I don’t think I’ve ever seen a grosser string of words than: 'to develop cutting-edge, capital-efficient content creation opportunities'” and film concept artist Reid Southen shared a similar negative take on X: "I wonder how the directors and actors of their films feel about having their work fed into the AI to make a proprietary model. As an artist on The Hunger Games? I'm pissed. This is the first step in trying to replace artists and filmmakers."

It's a fear that we will likely hear more about in the future as AI video synthesis technology grows more capable, and potentially becomes adopted as a standard filmmaking tool. AI can be an excellent tool for creation, but it can also be used as a weapon. As studios explore AI applications despite legal uncertainties and labor concerns, partnerships like the Lionsgate-Runway deal may shape the future of content creation in Hollywood.

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 30 years’ experience in music, film, television and emerging technology, and he handles many current digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Website: http://www.wallacecollins.com 

Taylor Swift v. Donald Trump: AI Images and Legal Consequences

Taylor Swift clearly has credible causes of action against Donald Trump for his false and misleading social media posts. Donald Trump posted to his own Truth Social platform several AI-generated images which falsely suggested that Taylor Swift had endorsed him for president. The post contained several photographs showing women in t-shirts with the “Swifties for Trump” slogan printed on the front. Some of these photographs clearly appeared to have been generated by AI, including several originally posted by a satire website. However, the most prominent image showed Taylor Swift herself, dressed as Uncle Sam in the style of a World War II-era recruiting poster, bearing a clear message: “Taylor wants you to vote for Donald Trump.” At the top of the post, Trump himself responded to the apparent endorsement: “I accept!”

These photographs sparked understandable outrage among the legions of fans of the superstar who has long been an outspoken critic of the ex-president. Though she has not yet endorsed a candidate in 2024, Swift supported Joe Biden and running mate Kamala Harris in 2020, and Swift blasted Trump for “stoking the fires of white supremacy and racism” and urged her fans to vote him out of office

Trump's social media posts could give rise to numerous causes of action by Swift. On its face, Trump’s fake endorsement post most obviously violates Swift’s right of publicity, the legal power to control how your name, image and likeness is used by others. While the explosive growth of AI tools has made it easier to convincingly mimic real people, lawmakers have scrambled to empower individuals like Swift to better protect their right of publicity. The federal NO FAKES Act, currently under debate in Congress, would make it illegal to publish a “digital replica” of someone’s likeness without their express consent, including one's voice or image. Trump’s post, which showed a realistic, AI-generated replica of Swift’s image without her consent, would almost certainly violate that new federal law. However, even without the NO FAKES Act, states across the country already protect the right of publicity and would likely give Swift grounds to sue Trump and his campaign on that basis. A trademark infringement and false advertising claim under the Lanham Act would be another credible cause of action for Swift. She may also have a cause of action against Trump for defamation, alleging that the false presidential endorsement harms her reputation. However, such litigation could be costly and time-consuming, and Trump has potential defenses such as pointing the finger at those who originally created the images or arguing that his posts were free speech shielded by the First Amendment.

Rather than go down that long and winding litigation road, the best way for Taylor Swift to fight the false endorsement might not be in a court of law but in the court of public opinion. Swift should fight Trump’s fake endorsement with a legitimate endorsement of her own, broadcast across social media to her millions of faithful fans, many of whom are of voting age. That would be a remedy far beyond what any court could grant, and one that would likely hurt Trump far more than any Judge could do by issuing a legal ruling from the bench.

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 30 years experience in music, film, television and emerging technology, and he handles many digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Website: http://www.wallacecollins.com

BEWARE: OpenAI's "Sora" Text-To-Video AI Model May Be The Most Dangerous Threat Yet!

Sora is an AI model from OpenAI that can create realistic video scenes from simple text instructions. As such, Sora is bound to raise a myriad of potential intellectual property issues as well as name and likeness and invasion of privacy issues depending on the extent to which it is exploited by the user.

OpenAI states that Sora can generate videos up to a minute long while maintaining visual quality and adherence to the user’s prompts. Sora is able to generate complex scenes with multiple characters, specific types of motion, and accurate details of the subject and background. The AI model can understand not only what the user has asked for in the prompt but also how those things exist in the physical world, and it has an understanding of language enabling it to accurately interpret prompts and generate compelling characters that express human emotions. Sora can also create multiple shots within a single generated video that accurately demonstrate and enhance characters and visual style. With all of the photos and information available on social media and the internet at Sora's disposal, the possibilities are endless. 

Most concerning is that, like ChatGPT and other AI applications, the more Sora is used to more it will learn, grow and advance to become better and smarter at production - so it seems inevitable that Sora will eventually have the ability to produce HD-quality and feature-length film productions.

For example, the user can write a sentence stating details such as "it was a dark and stormy night when through the foggy window of a castle we see a maniacal scientist flipping a switch to bring a robot to life" - and the more detailed the description the more detailed the video Sora can provide with photo-quality production. Initially this may appear innocuous enough enabling a parent to easily turn their child's playtime story into a video or allow a struggling screenwriter who might never otherwise get a film produced to use Sora to create a feature length film. However, as some commentators have pointed out, taking it a step further, a corporation might try to take an image of someone famous (or just anyone attractive they think might help sell their product), and then have Sora create a video commercial showing that person endorsing the product and promoting it. On the darker end, a co-worker could create a video of a fellow employee appearing to do all sorts of illicit activities and then anonymously bring it to the attention of the employer. Imagine the chaos that could be created in the political arena (as if there is not already enough confusion and misinformation in circulation). Or worse, imagine all of the carnal, erotic activities that could be generated by a user (or even a stalker) to make any person in their sights appear to be doing anything the user's imagination can conjure. 

AI has already disrupted copyright law norms for creators particularly in the music space, and has challenged established intellectual property concepts in the entertainment world and beyond. Sora would seem to be poised to expand those problems exponentially. Without some type of common sense regulations in place, whether from the government or the industry (or a combination thereof), Sora could be used by the most vile of individuals to create videos that could defile, mislead and scare people, or even instigate riots based on the appearance of something that is completely fabricated but entirely realistic in appearance. 

It might not be long before there is more clarity on the matter since lawsuits will inevitably make their way through the courts, and these cases may establish some parameters for the use of Sora. Like other current AI platforms, Sora is somewhat crude and imperfect, but by design AI improves and gets “smarter” the more it is used. Sora may still be in the early horse & buggy stage now, but it is quickly advancing to the Tesla level - at which point chaos is very likely to ensue. 

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. www.wallacecollins.com 

UNDERSTANDING TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

The 1976 Copyright Act provides for the termination of copyright transfers. It entitles content creators to reclaim their copyrights - regardless of any contract stating otherwise –after certain time periods. So, even if an author, artist, musician, photographer or songwriter signed a contract which purports to transfer all rights in a work for perpetuity, the Copyright Act provides that the author of the work (or the author's heirs) can terminate that grant and demand that the rights revert in a shorter period of time. Authors and creators are now entitled to terminate their contractual transfers and demand back control of their copyrights: authors can terminate their book publishing contracts, songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works Section 304(c) of the Copyright Act, says that a copyright owner (or his or her heirs) can terminate all grants, licenses or transfers of beginning on the 56th year after that assignment was made. Termination may be exercised anytime during a 5 year period beginning at the end of either the 35 year or 56 year period from the execution of the grant (as applicable) or, if the pre-1978 grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013. 

The big exception to the termination right is if a work was done as a "work-for-hire.” Section 101 of the Copyright Act of 1976 delineates what types of works by their nature are incontestably works for hire. It is essentially a two part test: (1) was the work created by an employee within the scope of his or her employment, and; (2) if not, is it (a) one of the nine enumerated work-for-hire classes of works and (b) is there a written agreement signed by the author acknowledging the work for hire relationship. Included on the list of nine enumerated categories of works that are works for hire are collective works, compilations and motion pictures. Not included on this list are books, photographs, songs and sound recordings.

There are ongoing legal battles over how termination rights affect the book, comic book and motion picture fields. Not unexpectedly, the entertainment business companies are not pleased with the copyright termination provision and the inevitable ramifications thereof.

With respect to songs and music publishers, some litigation has already been decided. In Scorpio Music S.A. v. Willis (Case No. 11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA." In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers.  Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision opens the way for most songwriters to get their composition copyrights returned and sets the stage for the bigger battles looming on the recorded music side of the business. The copyright termination procedures apply to the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years. Since the term “sound recordings” is not explicitly contained in the enumerated work for hire category list, practitioners representing record companies will need to try to find other ways to justify any claim that sound recordings are indeed works for hire in order to preclude termination by artists.

The termination rights of the author or creator of a copyrighted work are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the author must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market still makes this a valuable right to reclaim.            

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a songwriter and teenage recording artist for Epic Records before receiving his law degree from Fordham Law School. 

Tel: (212) 661-3656;  www.wallacecollins.com