Introduction

While “content” remains “king”, the question arises as to what form of content will retain or approach the throne. Arguably, the legacy film and television industries have never been so disrupted and plagued by uncertainty. Streaming has eviscerated physical video and disrupted international markets, and competition for “eyeballs” has never been fiercer. Gaming, esports, social media, YouTube, the “creator economy,” and other forms of short content proliferation and consumption are all attracting attention away from movie-going and destination television. Distributors’ ability to predict cinema attendance has deteriorated, and YouTube viewership on television now surpasses that of Disney. With profitability an investor imperative, studios are further downsizing and segmenting, and streaming platforms are curating more restrictively and reducing budgets. Throw in the “hand grenade” of AI and the threat (however vague and challenging to implement) of tariffs from the US, and the situation is literally combustible and explosive.

Artificial Intelligence

Certain trends and developments are so prevalent and dynamically evolving that they cannot be ignored, with AI arguably at the forefront. The platforms, tools, and use cases, particularly those applicable to the creation and dissemination of content, are expanding and improving at “warp” speed, while regulation attempts to catch up, and applicable international copyright law requires greater harmonisation. As Fieldfisher is the law firm pursuing Getty Images’ lawsuit in the UK against Stability AI, and with trial imminent, this piece will not include any comments on or insight into the copyright infringement related issues, nor Disney and Universal having recently entered the litigation fray with their lawsuit in the US against Midjourney (more on this to come in the future). 

Suffice it to say, legal precedent on the seminal issues of whether the training and/or the output of certain types of large language models constitutes various forms of misappropriation of intellectual property may be forthcoming shortly (assuming the cases in question do not settle on the eve of trial). If the plaintiffs are successful in such cases, presumably this will catalyse a wave of licensing of existing content, to complement existing options to “opt in/opt out” of AI training for future works. If not, the question remains whether government regulation will step in to protect the owners of copyright in existing and future creative works.

Leaving aside the critical issue of copyright infringement for the time being, while the US Copyright Office has moved somewhat in the direction of English law and EU law in terms of potential recognition of the copyrightability of AI-generated works, it remains an extremely factor driven, and therefore uncertain, analysis of whether an AI-generated work (or even a partially AI-generated work) will be accorded copyright, or otherwise have the copyright accorded in other jurisdictions recognised, under US law. A few of the conclusions reached in the US Copyright Office’s January report include:

• “Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements”;
• “Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analysed on a case-by-case basis;”
• “Based on the function of current generally available technology, prompts do not alone provide sufficient control”; and
• “The case has not been made for additional copyright or sui generis protection for AI-generated content”.

The 40-page report provides additional guidance on how each instance will be evaluated, including an analysis of the technological processes employed by various AI platforms. However, it still leaves considerable uncertainty about the ability to ensure copyright recognition for any work created with the assistance of AI. 

Moreover, even if a work is created in a jurisdiction, such as the UK, where under the laws of England and Wales, copyright is recognised in a machine generated work as belonging to the person or party that “undertakes the arrangements” for the creation of the work (which under most AI platform user license agreements would be the user of the platform), most commentators do not interpret the Berne Convention as requiring reciprocity by the adherents to same. The foregoing is based largely on the notion that said Convention requires only that the same protections accorded to domestic authors be accorded to foreign authors, so if such authors or authorship does not exist in the US, a party or person accorded copyright in a work under the laws of England and Wales arguably could not enforce such copyright if it were being infringed in the US.

Accordingly, despite the proliferation of AI models and tools to create content (and their respective rapid evolution to produce higher quality content), again, leaving aside underlying copyright infringement issues, this uncertainty with regard to the existence and/or enforceability of copyright in a work created with the assistance of AI, certainly hinders widespread acceptance of using AI to create or assist in the creation of original film and television productions, as opposed to using AI for so-called “ideation” or for other purposes, such as the marketing and promotion of a film or episodic program. It is no surprise that there is a growing number of clauses requiring authors and writers to confirm that they have not used generative AI in the creation of their work. At the same time, we are also observing a rise in the establishment of AI platforms and models that have been trained exclusively on licensed material or content that is already owned by the organisation that developed the platform or model.

One unavoidable conclusion in the face of the development and evolution of generative AI, however, is that there has been greater decentralisation of the means for creating arguably “professional-grade” content than ever before, and, coupled with the development and evolution of YouTube and social media platforms, greater decentralisation of the means to distribute content and acquire an audience for same. 

This raises the question of whether quality still matters as much as it once did. Observing the rise in popularity and significant monetisation of micro-dramas on mobile devices, as well as the success of various channels on platforms like YouTube and social media, suggests that production quality is less important to younger consumers. Instead, what seems to matter more is the ability to engage them with an intriguing storyline or provide information on topics that interest them.

While the feature film and episodic eco-system will likely always leave room for outstanding and extraordinary talented filmmakers and storytellers, and the outstanding implementation of the visions of directors whose imaginations and technical know-how surpass those of the average person, as AI becomes more effective and powerful, individuals will be able to create motion pictures and episodic programs that were previously only possible with large teams of varying expertise, assembled on exotic locations or sound stages with the latest and greatest cameras and other equipment, in a fraction of the time that it previously took. They will also have the means to disseminate them to the public, presumably setting the compensation they are seeking for the copying or viewing of the same. 

As noted, various AI platforms are already offering an “opt-in/opt-out” option for training by these platforms on content created by a user. We therefore cannot be that far off from a system in which a user “opts in” , and concurrently sets the compensation sought for any further duplication, viewing or downloading of the same, presumably via “smart contracts” and blockchain (or similar technology) that will complement the election to opt in. Like the current micro-drama phenomenon, content may initially be exhibited for free, followed by micro-payments and/or subscriptions to “follow” the content that continues to resonate. Alternatively, perhaps most content (with the obvious exception of so-called “event” films, live sports and other live events) will be made available to the public without direct charge to the consumer, and monetised solely by advertising, sponsorship and viewership metrics (ie, YouTube, FAST channels and similar exploitation models). 

How much longer (predictably, not that long) before we are in a world where one’s “pda” and wireless and data subscription are “housed” in a voice-activated, cloud based, personal AI, trained on one’s habits, likes, dislikes, professional and personal life, which can appear holographically (or not), in a visual image chosen by the user, and a subscription fee is paid for voice, data, and one’s personal AI to have access to practically limitless databases to create personalised content/entertainment on demand and/or to automatically pay additional micro payments (via “smart contracts” or similar technology) for the use of certain content included therein? In such a world, one is inevitably compelled to question the future need for the “studio system” and its current infrastructure.

Coincidentally, and rather ironically, in 2012, the author of this piece worked on an Ari Folman film, “The Congress” (inspired by a 1971 Stanislaw Lem science fiction novel), in which Robin Wright and Tom Cruise are the only “holdouts” in the motion picture industry who have not agreed to have digital clones of themselves produced and owned by the studios. Also ironically, in the film, both her lawyer and her agent are trying to persuade her to “sign on” (ie, “resistance is futile”). A short five years later, Digital Domain asked the author to prepare an agreement that would provide for the possibility of creating and exploiting a “digital clone” of an actor, knowing where the technology for the same was heading. At that time, it could not have been met with greater scepticism, and even fear, from various stakeholders. Now, advising on such arrangements – and various agencies actively seeking to plant their flag in this new “territory” – is a common occurrence. And so is advising on, and negotiating, “AI training” clauses and/or advising different stakeholders on the advisability of the inclusion of “opt in/opt out” training clauses in contracts with creative talent. These are all arrangements/agreements that were the stuff of pure (and darkly humorous) science fiction not that long ago.

Live Events and Experiences

As everyone’s lives and consumption of media and entertainment content become more personalised, more digital, more virtual, there is also a somewhat counter-trend on the rise – namely, live and immersive experiences. At least for existing generations (who knows what the future may hold), a completely or mostly digital/virtual world still leaves something lacking. One can recall a time when concert tours, although often profitable in their own right, served as essential promotion for album sales. As music became increasingly “free” and accessible through affordable subscriptions, concerts, touring, and the accompanying merchandising evolved into the primary and most lucrative revenue source for major artists. For emerging talent, however, the revenue streams remain an intricate blend of streaming, live performances, merchandising, and publishing. With the advent of advanced hologram and digital projection technology, artists can even bypass physical appearances, as demonstrated by the immensely popular “Abba Voyage” experience in London.

Film and television are following a similar path, with immersive/live experiences for series and films such as “Stranger Things”, “Squid Game”, “Peaky Blinders”, “Fawlty Towers”, “Tomb Raider”, “Blade Runner”, etc. Netflix recently announced two inaugural Netflix Houses to be opened in malls in Philadelphia and Dallas later this year, which will be permanent, year-round locations for Netflix fans to enjoy immersive experiences of some of their favourite shows. For now (as long as there is not an epidemic/pandemic), people still find a live experience and congregating with others who are enjoying the same experience, as well as purchasing merchandise to commemorate the experience, as something worth paying for, and typically paying quite a lot. Recently, Fieldfisher’s client, Tokyopop, acquired the rights to and produced an inaugural live event in Europe based on the popular “Naruto” anime series, which is set to open at the end of August this year in Berlin, and there are other examples of a similar approach to investing in immersive and live experiences. These experiences have an “immediacy”, an energy, and obviously a strong sense of community that harkens back to something primal, something our ancestors experienced sitting around fires or eventually in amphitheatres that we still visit as tourists today. Cinema-going still provides (at least for now) not only superior and larger screens and audio systems (or even a “sense-around” experience), but also communal laughter, communal tears, communal thrills, and a feeling that one cannot fully duplicate in one’s own home (at least for most people, and at least for the near future).

Conclusion

But where is this all heading as technology continues to advance? We live in a world in which, through devices such as VR (Virtual Reality) headsets, “Total Recall” becomes a reality. Again, the world of science fiction has become a reality with the emergence of companies like Neuralink and Illuscio, which have patented streaming technologies for virtual reality. How long before “immersive” will have a completely different meaning, and what will happen when Quantum computing eventually becomes more widely available?

For better or for worse, it is truly a “Brave New World” (a science fiction work published in 1932, which predicted various technologies that exist today). The future, coming at us more rapidly than ever before, will require adaptability, flexibility, and perhaps more than ever, ingenuity. In a world of decentralised content creation and distribution, it will be imagination, ideas, and storytelling that will still be prized.

The industry’s recognition of all of the foregoing trends has seemingly catalysed the hunt and competition for so-called “Big IP”, ie, the ideas and storytelling that have the greatest franchise potential and for captivating audiences across multiple mediums (such as the next “Harry Potter”, Marvel and DC universes). 

Technology has changed and will continue to change the means for audio-visual storytelling, as well as the means by which it reaches audiences, and, as always, this will change the clauses included in agreements and even the types of agreements entertainment lawyers (and eventually perhaps, their AI colleagues) will be negotiating now and into the future, but the storytelling itself, the primal need to share stories – stories that make us laugh or cry, cringe in horror, or teach us something about ourselves – whether live, or around a virtual campfire, will persist.