Studios’ Offer to Writers May Lead to AI-Created Scripts That Are Copyrightable

Winston Cho
·6 min read
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In the midst of a double strike that has halted film and TV production, it’s becoming slightly clearer how Hollywood’s biggest studios would like to build artificial intelligence into the machinery of crafting screenplays.

Late on Tuesday, the group that reps studios and streamers, the Alliance of Motion Picture and Television Producers, outlined its Aug. 11 proposal to the Writers Guild of America, including how it views generative AI tools like ChatGPT, a bot that can generate loglines, pitch ideas and storylines in seconds. The AMPTP stressed that writers’ use of the tools will not undercut scribes in a sign that it intends to harness the technology instead of outright banning it.

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But missing from the proposal, which was described as meeting the “priority concerns” of the guild, is how the studios need writers to exploit any work created by AI under existing copyright laws. That’s because works solely created by AI are not copyrightable. To be granted protection, a human would need to rewrite any AI-produced script.

“Fundamentally, the offers mistook who’s doing who a favor,” John Lopez, a member of the WGA’s working group on AI, tells The Hollywood Reporter. “They need us.”

By keeping AI on the table, the studios may be looking to capitalize on the intellectual property rights around works created by the tools. “If a human touches material created by generative AI, then the typical copyright protections will kick in,” a source close to the AMPTP says.

The studios detailed their position to the WGA on the heels of a meeting between guild leadership and Hollywood CEOs that included Disney chief Bob Iger, Netflix leader Ted Sarandos and Warner Bros. Discovery mogul David Zaslav. It proposed to bar in the contract content generated by AI from being considered “literary material” — defined as stories, adaptations and screenplays, among other types of works, for use in the production of TV and film projects. “A writer will not be disadvantaged if any part of the script is based on GAI-produced material, so that the writer’s compensation, credit and separated rights will not be affected,” the offer stated.

Hours after the offer was revealed by the studios, the WGA told members that it “failed to sufficiently protect writers” and accused members of the AMPTP of leading an effort “not to bargain, but to jam us.” It stressed “limitations and loopholes and omissions” in the proposal, but did not elaborate.

The offer marked a compromise on contentious negotiating points relating to AI that appears to be among the issues holding up an end to the strike.

The studios may be looking toward producing of AI-generated scripts, but copyright protection is only possible for those works if they are revised by human writers. Material created solely by AI would enter the public domain upon release, potentially restricting opportunities for exploitation.

The U.S. Copyright Office currently maintains that most AI-generated works are not copyrightable. In a statement of policy issued in March, it said it’s “well-established” that protection can only be granted to works that are the “product of human creativity” and that authors “exclude non-humans.” A work containing material produced by AI can only support a copyright if a human “selected or arranged” it in a “sufficiently creative way that the resulting work constitutes an original work of authorship.”

Courts have long held that copyrights are solely for works by humans. On Friday, a federal judge upheld a finding from the U.S. Copyright Office that a piece of art created by AI is not open to protection. The ruling was issued in a suit from Stephen Thaler challenging the government’s position refusing to register works made by AI. U.S. District Judge Beryl Howell found that copyright law has “never stretched so far” to “protect works generated by new forms of technology operating absent any guiding human hand.” She stressed, “Human authorship is a bedrock requirement.”

Thaler, chief executive of neural network firm Imagination Engines, looked to list an AI system as the sole creator of an artwork called A Recent Entrance to Paradise, which was described as “autonomously created by a computer algorithm running on a machine.” He registered himself as the owner of the potential copyright under the work-for-hire doctrine. The Copyright Office denied the application on the grounds that “the nexus between the human mind and creative expression” is a crucial element of protection.

Pay was highlighted in the AMPTP’s counteroffer. For example, if writers are given an AI-created screenplay and asked to touch it up, they will “receive the fee for a screenplay with no assigned material and not a rewrite.” The studios’ offer to compensate writers as if they’re penning original works when they’re touching up scripts created by AI could result in a scenario where writers are, in effect, giving these AI-created scripts eligibility for copyright protection.

“They want to cut writers out of intellectual property rights as much as they can,” Lopez says. “They see AI as a shortcut to do that, but they don’t realize they need us.”

The AMPTP’s offer revealed on Tuesday detailed that AI-produced material “will not be considered source material for purposes of determining the writer’s credit” and “will not be the basis for disqualifying a writer from eligibility for separated rights.”

Amid this backdrop, studios have been fighting legal battles over the rights to iconic franchises birthed in the 1980s, including Top Gun, Predator, Terminator and Friday the 13th. Writers have been exploiting a provision in copyright law that allows them to recapture previously transferred copyrights after a certain period of time.

Studios might be able to avoid this issue altogether by keeping for themselves the intellectual property rights to works created by AI, extending the shelf life and value of lucrative franchises. Depending on how copyright law develops, they may be able to list themselves as the owner of the material under the work-for-hire doctrine, which designates the author of a work as the party that hired the individual rather the person who actually created it. This will only be possible if human writers sufficiently alter an AI-produced work. The determining factor is the extent to which a person had “creative control over the work’s expression and actually formed the traditional elements of authorship,” according to the copyright office. A writer, for example, could modify material originally generated by AI to such a degree that it meets the standard for protection. In these instances, only the human-authored aspects of the work will be granted protection.

It remains to be seen how the copyright office approaches this process. One question is the extent to which a writer has to play in the creative process of penning literary works.

On top of concerns about intellectual property rights, writers also stress the AMPTP’s refusal to bar their work from being used as training data for AI systems. A veteran genre writer says that the two sides may be better off negotiating the topic later so it “doesn’t tie up” the talks. “This is an issue where we are negotiating with studios but are also on the same side of studios vis a vis companies generating large language models,” this writer adds.

Katie Kilkenny and Lesley Goldberg contributed to this report.

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