AI has revolutionized the entertainment and gaming industry and has a multitude of uses. AI can generate improved special effects, actors in film, in-depth open world games and detailed non-playable characters in video games, musical works in the style of popular musicians, or write novels in the style of a favourite author. With these endless possibilities, some creatives may want to protect their materials from being used by AI to create works similar to their creative styles or likenesses, without consent or agreed upon compensation. Other creatives want to use the cost saving advantage of training AI to produce additional creative works in the same creative style or likeness.
These issues came up in the film industry in the US during the 2023 Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) strikes. Studios agreed they would not use an actor's digital image or likeness without the actor's consent and agreed upon compensation. Subject to limited exceptions, AI may currently only be used to create a synthetic performer if they notify SAG-AFTRA, provide the union an opportunity to bargain in good faith for a real actor to audition for the synthetic performer's role, and if the synthetic performer resembles a real actor, obtain the real actor's consent. In Canada, these issues are going to be addressed during the negotiation of the new collective bargaining with the Canadian Media Producers Association and the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA). ACTRA has been lobbying the federal government as it prepares to introduce the Artificial Intelligence and Data Act. ACTRA suggested that any new AI legislation should allow performers to consent and control the use of their voice, image, or likeness by AI, as well as being provided compensation for such use.
Several authors have brought copyright infringement claims to U.S. courts regarding AI's use of copyrighted materials to recreate similar or competitive works. As no analogous claims have been made in Canadian courts, it remains unclear whether such uses will be considered copyright infringement or fall under a fair dealing exception.
There are risks with creatives using AI to make their creations. As discussed in further detail under the Copyright and Trademarks section of this guide, the Copyright Act likely requires a human author for materials to be granted copyright protections. It is unclear as to how much AI assistance will be allowed in the creation of a work before the AI is deemed to be the author of the work and therefore not protected under the Copyright Act.
As AI continues to transform creative works, a characteristic once thought to be unique to humans and immune from AI encroachment, understanding AI's evolving strengths and weaknesses is important to ensure individuals and businesses are not left behind the curve.
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