Writers’ block resolved… After an astounding 148 days on strike, leaving Hollywood and the wider entertainment industry in limbo, the Writers’ Guild of America (“WGA”) has reached a tentative agreement with the Alliance of Motion Picture and Television Producers (“AMPTP”). The union leaders voted to lift the restraining order on 27 September 2023 so writers could go back to work while the agreement goes to a members’ vote, meaning some major Hollywood productions are soon to be back on track.

What was the strike about?

The WGA went on strike after negotiations on the renewed terms of the WGA Theatrical and Television Basic Agreement (“MBA”) broke down earlier this year. The MBA expired on 1 May 2023 and the WGA membership went on strike the next day.

The key proposals from the WGA focused on an uplift to basic minimum rates, protections for writers working in episodic television and, importantly, improvements to writers’ deals in relation to work for streamers, including a more structured approach to residuals.

The eye-watering speed of AI development has also been a central feature of the strike, with writers expressing their concern regarding the use of AI in productions and in particular, the potential for AI models to use a writer’s original work as source material to create new works without the writer’s consent or fair remuneration. The WGA proposed that AI usage should be regulated on MBA-covered projects. At the beginning of negotiations, their proposals were rejected by AMPTP who instead offered to meet with the WGA annually to discuss AI developments.

What’s in the tentative agreement?

Writers have come away with a better increase to MBA minima than was originally offered by the AMPTP, as well as higher contributions to health and pension schemes. The WGA has improved various screenwriter employment terms, with enhancements to compensation and residuals for writers of productions which do well on streaming platforms. Other wins include increased compensation for staff writers and minimum requirements for writers’ rooms, including minimum staffing and guaranteed weeks.

On the AI side, the WGA were successful in reaching an agreement with the AMPTP that regulations were needed. AMPTP have agreed that, on MBA-covered projects:

• AI can’t write or rewrite literary material and AI-generated material cannot be considered source material;
• Writers and producers can agree that a writer can use AI if they wish to when providing writing services, but producers can’t require a writer to use AI; and
• Any material given to a writer which has been generated by AI must be disclosed as such.

The WGA has also reserved its right to assert that training AI with writers’ material is prohibited by the MBA.

The new MBA still needs to be officially ratified by the WGA membership who have until 9 October to vote, but there’s no reason to believe that the vote is not going to be passed.

What about the actors’ strike?

Members of the Screen Actors Guild – American Federation of Television and Radio Artists (“SAG-AFTRA”) are still striking. This means that, although writers might be coming back to work, many productions still can’t start up again, as their casts remain on the picket line.

Much like the WGA strike, this strike revolves around a series of different concerns. SAG-AFTRA are seeking wage increases, proper participation in streaming revenues and changes to rules about working during production hiatuses, amongst other proposals.

SAG-AFTRA also has major concerns about AI, too. They are seeking proper protections for both lead actors and background performers when it comes to “digital replicas” (when a production “creates” a digital version of an actor) and substantial changes to a performance using AI. SAG-AFTRA wants to ensure that all artists receive fair compensation and can give informed consent when it comes to AI.

It is possible for certain independent productions to sign up to “Interim Agreements” so that they can carry on working through the strikes. These have a hefty amount of AI provisions, ensuring that information from the producers about the use of digital replicas is provided to members in advance, limiting the usage of digital replicas and incorporating hiring commitments for work to be performed by “natural persons”. There are also a series of consents which have to be sought from performers depending on the use of digital replicas and other AI-related matters.

There currently appears to be some distance between the positions of SAG-AFTRA and AMPTP. However, the good news is that it was announced that the parties would be returning to the negotiating table from 2 October, so only time will tell if our favourite TV shows and the next big blockbusters will be back in production any time soon. That being said, there is little doubt that the WGA’s new deal bodes well when it comes to SAG-AFTRA negotiating its own terms with the AMPTP. The agreement reached between the WGA and the AMPTP suggests that a resolution could well be reached with SAG-AFTRA in the near future.

What does this mean for the entertainment industry in the UK?

With the WGA strike ending, UK writers who are members of the WGA and UK writers on WGA-struck productions will be able to go back to work. We shall see what effects the new provisions in the MBA might have on lobbying by the Writers’ Guild of Great Britain, who recently had a motion passed at the TUC Congress which called for fair pay for writers working for streamers. They are also running a campaign which aims to give writers in the UK proper protections when it comes to everything AI-related. 

While the SAG-AFTRA strike continues, British actors in SAG-AFTRA struck productions continue to be affected. Equity, the UK’s trade union for actors and other performers, stands in solidarity with SAG-AFTRA, though striking laws in the UK mean that actors working in the United Kingdom (whether under Equity or SAG-AFTRA contracts, or other agreements) in most cases can and should continue to work. The US protections afforded to US artists who are currently striking don’t generally extend to UK based performers and UK performers may be at risk of dismissal or a claim against them for breach of contract if they sought to take similar action. Performers working under an Equity contract for a US producer also cannot be lawfully disciplined by SAG-AFTRA. Much like the sister strikes for writers, it will be interesting to see where SAG-AFTRA can get to as negotiations reopen and how that might impact the industry in the UK.

Conclusion

In addition to the core issues of pay and residuals, the strike highlights the impact that AI is already having on the TV and film industry, and in particular its effect on performers and the creators of literary and dramatic works. Both producers and talent (such as writers and actors) will need to carefully consider how to govern the use of AI in contractual arrangements to strike a balance between the ability to adopt technologies to streamline processes and exploit new opportunities and the protection and remuneration of artists, creators and rights holders.