Takeaways
- From idea generation to prop modeling, shot selection and more, GAI’s impact on the entertainment industry’s unionized workforces cannot be overstated.
- Potential uses of GAI tools raise important legal and contractual questions about employee displacement and creative control.
- Entertainment industry employers can develop a bargaining strategy that addresses the impacts of AI adoption on above- and below-the-line unionized employees.
Article
Generative artificial intelligence (GAI) has the ability to transform many industries; its current and future impact on the entertainment industry is particularly significant and cannot be overstated. The SAG-AFTRA and WGA strikes in the summer of 2023, where the impact of GAI was a central point of contention, clearly demonstrate the profound effect GAI has already had on unionized workforces in this sector.
Organizations with unionized workforces must balance technological innovation with collective bargaining obligations.
GAI Applications in the Entertainment Industry
Some present or future applications of GAI in the production of entertainment, media, and sports content may include:
- Creating digital replicas of performers (including voice and likeness);
- Generating concepts, ideas, or outlines for scripts;
- Streamlining the creation or modeling of props, art, costumes, makeup, and set designs;
- Assisting with the creation or selection of sound, music, and lighting;
- Simplifying the process of adding visual effects to a production; and
- Aiding in editing content and shot selection.
Although not exhaustive, this list demonstrates the effects GAI may have on the entertainment sector from both an above-the-line and below-the-line perspective. These potential uses of GAI tools raise important legal and contractual questions over employee displacement and creative control.
Strategies for Collective Bargaining
Although GAI may not currently be at a stage where it is sophisticated enough to displace an entire workforce, it is at or near a stage in which it may lead to significant reductions in employee hours or displacement of certain classifications of workers.
Thus, for employers that are not presently signatory to any of the union industry-wide collective bargaining agreements (DGA, SAG-AFTRA, WGA, IATSE, and AFM), it is important to understand the legal issues associated with bargaining over GAI and to have a plan in place when the topic rears its head.
A company’s decision to introduce new technology in the workplace is generally a permissive subject of bargaining. Thus, in the absence of a provision in the collective bargaining agreement to the contrary, companies are generally not required to bargain over the decision to introduce new technology. While the use of GAI alone is generally a permissive subject of bargaining, its application with respect to workforce reduction, for example, can make it a mandatory subject of bargaining. GAI should be analyzed on a case-by-case basis, as the devil is always in the details. Due to GAI’s potential to significantly affect the day-to-day work of above- and below-the-line employees (as described above), it is important to develop a bargaining strategy that addresses the impacts of its adoption on union-represented employees.
Whether the bargaining subject is permissive or mandatory, unions will seek to adopt provisions that either prohibit or severely limit the use of AI. Employers need to be prepared with strategies or proposals that balance their need to remain competitive within the industry with practical business solutions that provide a viable path to a deal. Consider:
- Creating a committee to discuss future GAI developments;
- Providing notice to the union when an employer is interested in testing or piloting certain GAI technologies;
- Providing training, where reasonable, for employees to use GAI as a tool that enhances their work product;
- Building extra time into GAI implementation plans for potential union bargaining;
- Negotiating severance provisions in the event of major reductions in force due to technological advancements, which expressly preempt any obligation to engage in effects bargaining;
- Ensuring that, to the extent any proposals on GAI are agreed to, they only apply on a prospective basis;
- Expressly excluding any historical technological practices from the scope of any GAI proposals that are agreed to; and
- Prohibiting the use of GAI without company consent.
Since GAI remains a “black box” in terms of future applications, it is critical that companies with unionized workforces maintain flexibility so they can continue to compete with both their union and non-union competitors. As new bargaining cycles begin (including anticipated negotiations with the above- and below-the-line unions in 2026), union focus on GAI will likely intensify. Employers must be ready to address these issues not only at the bargaining table, but also in policy development, vendor agreements, and internal governance.
