SAG-AFTRA Votes: Contract Unlikely To Win by Huge Margin

With a week left to vote on SAG-AFTRA’s strike-ending proposed agreement with Hollywood studios, it has become clear that the actors guild’s members will not overwhelmingly vote in favor of the contract – largely because of lingering concerns over AI protections.

On social media (#SAGAFTRAVoteNo) and at membership Q&A sessions, SAG-AFTRA members have voiced their concerns and objections to the contract, which took more than five weeks to iron out with the Hollywood studios’ Alliance of Motion Picture and Television Producers. Many members say the 129-page agreement doesn’t go far enough to protect actors, particularly when it comes to artificial intelligence.

“Going back into the negotiating room with a sincere effort to further protect members and to more accurately interpret the rules of ‘consent’ and the uses of AI is the necessary next step we must make,” wrote “Full Metal Jacket” actor Matthew Modine, who was one of nine SAG-AFTRA National Board members (out of 75) who voted against the contract. Modine noted that re-opening discussions “does not negate nor will it dismantle the benefits the contract now holds.”

Voting to ratify the SAG-AFTRA contract, which ends on Dec. 5, is playing out differently than the conclusion of the strike by the Writers Guild of America, in which members overwhelmingly approved the contract in October with 99%. (The SAG-AFTRA contract requires a simple majority to be ratified.)

It’s not uncommon for SAG-AFTRA members to have passionate debates over their next contract. In 2020, the tentative agreement negotiated by the union under then-president Gabrielle Carteris prompted the SAG-AFTRA Los Angeles local to recommend a no vote, prompting a debate within the union over the contract’s terms on establishing a network of intimacy coordinators and a lack of changes to exclusivity rights in an age of streaming shows with fewer episodes per season.

Despite that recommendation, the 2020 contract was ratified with 74% of the vote. But while the debate then was centered around long-established elements of Hollywood labor agreements like residuals and exclusivity, disagreements around the 2023 contract are largely focused on the uncharted territory of AI, which everyone agrees will have some impact on Hollywood’s future.

How that impact will take shape is still in flux.

The Human Question

One of the most common complaints of SAG-AFTRA members voting “no” is that the actors guild did not secure language explicitly defining acting as union work that must be done by a human and not an AI program.

The Writers Guild and Directors Guild secured such language for their respective members in their contracts. The DGA contract requires that directing duties be assigned to a person, while the WGA’s contract reads that “AI-generated material can’t be used to undermine a writer’s credits or separated rights.”

“SAG is a guild for live human performers. Period. This is the moment,” wrote SAG-AFTRA member Juliet Landau on social media. “The DGA and Writers Guild put protections in place that this contract does not have…We need to do the same.”

Duncan Crabtree-Ireland, SAG-AFTRA’s National Executive Director, told TheWrap that the language in each guild’s contract “reflects each profession’s unique interests.” While there was no express language designating acting as something that can solely be done by a real person, there is an acknowledgement on page 69 of the full proposed contract of “the importance of human performance in motion pictures.”

Ivy Kagan Bierman, partner and entertainment chair at Loeb & Loeb law firm, also noted that on page 70 both sides acknowledge that the studios have “customarily used digital technologies to generate non-human characters without the services of a performer covered under this Agreement.” One such example is the wishing star in Disney’s “Wish,” a character that plays an integral role in the computer animated film but does not speak — and therefore was made by the animators without the services of a SAG-AFTRA voice actor.

“The historical use of technology to create performers without a human actor would prevent a SAG-AFTRA contract from having the same language that WGA and DGA secured about writing and directing being jobs that could only be done by humans,” Bierman said.

Synthetic Performers

Of course, CGI doesn’t have the potential to change acting the way AI may in a few years with “synthetic performers.” Such AI characters are not a direct digital replica of a human actor but use data sets from human and possibly other AI performers to play roles that never get offered to a human actor.

On page 69, the contract dictates that the studios must “give the union notice and an opportunity to bargain in good faith over appropriate consideration, if any, if a Synthetic Performer is used in place of a performer who would have been engaged under this Agreement in a human role.”

That requirement for an ‘opportunity to bargain’ could end up being a deterrent from studios considering synthetic performers for a project, Bierman noted. “The studios may seek expedited arbitration, but they still have to negotiate with the guild, and that might be a step they have to consider when using AI,” she said.

Still, the idea that AI could get to a point where it could create a synthetic performer close enough to real life that it could render human actors obsolete has raised the hackles of many SAG-AFTRA members.

AI is already capable of creating convincing replicas of human voices that have been used both with and without the consent of actors. Val Kilmer, who lost his voice to throat cancer in 2014, consented to allowing AI to recreate his voice during the making of the 2021 documentary “Val” and for his cameo in the film “Top Gun: Maverick.”

On the other hand, AI was used to recreate the voice of the late Anthony Bourdain for three lines in the 2021 documentary “Roadrunner,” released three years after the chef’s death by suicide. Actors like Scarlett Johansson and Tom Hanks have also spoken out when commercials were created with AI replicas of their voice without their consent.

Is AI getting to the point where it can not only replicate a voice or likeness, but blend performance data to create a completely new digital performer that’s good enough for the big screen?

Not quite, said VFX supervisor Robert Nederhorst, who has experience with scanning actors for AI replicas and who discussed the current state of the technology in filmmaking during a nearly four-hour webinar hosted by SAG-AFTRA member Bob Glouberman.

“If a studio came to me saying they have a project they’re going to start shooting in February with an AI actor, and they’re going to have it out by 2025, I’m going to gently walk away because that is a recipe for disaster,” Nederhorst said.

Nederhorst said he believes there is little if any threat of synthetic performers becoming a viable option for studios between now and when the next round of SAG-AFTRA contract negotiations begin in 2026. But he does think AI will advance in the next few years in ways that will give the union and its members a much better understanding of where AI and the industry’s approach to the technology is headed.

What happens if you say no?

One of the key protections touted by SAG-AFTRA has been its requirement that studios lay out to actors exactly how AI will be used in a film or television production and receive their “informed consent” via a signature that is separate from the signature for the rest of the contract.

“The required consent also has to be clear and conspicuous — no more burying required consent to be scanned in the fine print,” Crabtree-Ireland told TheWrap. “Producers will also have to provide detailed information about how they will use the digital replica and obtain members’ consent. Not only do members have the opportunity to consent to the creation of a replica, they must also be given a ‘reasonably specific description’ of the intended use each time it will be used.”

The rules on AI consent for “digital replicas,” laid out in pages 61-66 of the contract, also states that any digital replicas may not be used for projects “other than one for which the performer was employed or in any other field or medium without obtaining the performer’s consent and bargaining separately for the use.” In the case of a dead performer who did not give their consent, that consent must be obtained from an authorized representative or from SAG-AFTRA.

Pages 71-76 of the contract also lay out protections for background actors when it comes to digital replicas. Along with the aforementioned “informed consent” requirements, digital replicas cannot be used “in lieu of hiring background actors necessary to fulfill the applicable coverage maximums for the scene(s) to be photographed.”

Critics of the contract such as Modine point out that studios can follow the letter of the contract and fully inform actors about how AI will be used and yet still use their status as employers to push actors into giving their informed consent.

“Yes, SAG-AFTRA members will have a right to say ‘No’ when asked to consent. But doing so will no doubt create a three-tier division between members,” Modine wrote. “There will be those members with the financial/career equity to say no and negotiate their own terms. Others will be forced, out of financial or career necessity, to relent and succumb.[…] The third tier will be those union members who refuse to consent and lose employment opportunities to those who do consent.”

It’s unclear if there’s anything SAG-AFTRA could do to prevent this. Studios have the ability to hire whomever they wish as any employer would. Indeed, as Crabtree-Ireland acknowledged, scans for digital replicas were already being made a requirement for background actor employment prior to the start of the actors’ strike.

“Now, SAG-AFTRA members will have notice of this ahead of time and be able to make an informed decision on whether or not to pursue a job, just as they always have done in connection with other important matters that are often conditions of employment, like long term relocation for a project, willingness to perform in scenes including nudity, and many others,” he said.

‘In Good Faith’

There have been other concerns and complaints made by SAG-AFTRA members opposing the contract not related to AI, including on terms related to exclusivity periods, auditions, and the new streaming fund that will be established by SAG-AFTRA pending contract approval. Kylie Sparks, a TV actor who served as a strike captain during the work stoppage, has a summary of many of these objections on her Instagram page.

One common thread linking together all of these objections is the sense of deep distrust towards the studios that fueled both the WGA and SAG-AFTRA strikes throughout the summer and fall.

In her explanation of her “no” vote, Juliet Landau pointed out that the contract calls on the studios to bargain “in good faith” — a phrase commonly used in labor contracts — if and when a synthetic performer is used on a project. She cited the studios’ request for a two-week extension of the initial round of contract negotiations with SAG-AFTRA that did not lead to any further talks before the strike began as one of several examples why she doesn’t trust the studios to act in good faith.

“These are the same people paying lots of money to cut down trees, put up barricades to impede strikers and hire expensive PR firms rather than pay actors. But we should trust all these vague clauses will be negotiated in good faith,” Landau wrote, tongue in cheek.

Restoring trust between creatives and studio execs after this year of strikes is a process that will take years to unfold, and there’s no clear answer as to what that process should look like.

But when it comes to “good faith” in terms of the contract, Crabtree-Ireland says that, as with any contract, the guild and the studios are bound to abide by the “covenant of good faith and fair dealing” — a general principle of contract law.

“That doesn’t mean there’s a lack of accountability on the part of the studios and streamers,” he said. “That’s what the unions are here for — to negotiate terms the companies implement, and to hold those companies accountable for their compliance through our enforcement efforts.” Crabtree-Ireland added that “our members can count on SAG-AFTRA to enforce the terms of this agreement diligently and vigorously.”

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