SAG-AFTRA

Summer 2018

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Attorney Douglas Mirell, a media entertainment and intellectual property litigator and partner at Greenberg Glusker Fields Claman & Machtinger LLP, is working with SAG-AFTRA on this issue. He warned that without right-of-publicity laws, members could be exploited in ways outside of their control. "It could mean that studios or networks could incorporate [actors] or their digital replicas into motion pictures that they would never have agreed to perform in. [It would] allow them to be seen engaging in sexual conduct they would never have authorized. In this business, there are nudity waivers that performers are asked to sign … If a studio is able to create a digital replica of you, that digital replica isn't being asked to sign a nudity waiver." The issues surrounding digital replicas of real people are numerous. Not only could actors be deprived of income if their images are used without permission, but they could find themselves pitching a product they hate or endorsing a political viewpoint they disagree with. And what about the performance itself? Without the actor's participation, the image isn't going to have the years of training that actors put in to perfect their craft. When it comes to the use of digital replicas in expressive works such as video games, three states have laws that prevent unauthorized use. In California, that protection is only in effect when a person is alive. In New Jersey, the right continues even after a person passes away. The New York law applies only to the living, but the protection is new and not well defined. Although the technology is new, the union and other industry observers have been monitoring this issue for a long time. Way before merger, Oscar-nominated director John D. Goodell wrote an article about "computer-created actors" for a 1984 publication for Screen Actors Guild's 50th anniversary. "Will Clark Gable, Marilyn Monroe, Humphrey Bogart and John Barrymore be resurrected to act again as computer- generated images indistinguishable from live actors?" Goodell wrote. "The answer is an unequivocal yes, and it's less than a decade away!" As technology evolves, so does SAG-AFTRA's efforts to protect members' rights. In New York, the union has been committed to expanding right-of-publicity protections. This past legislative session, the state Assembly overwhelmingly voted to pass the bill, and although it did not get a vote in the state Senate, it succeeded in raising awareness of the issue of digital image abuse. The Assembly vote was the result of a sustained campaign by the union and its allies. SAG-AFTRA will continue to lobby and remains hopeful it will pass in an upcoming session. "SAG-AFTRA believes that you and your beneficiaries should control the use of your image and voice, digital or otherwise," said Executive Vice President Rebecca Damon, who has been a leader of efforts to protect performers' rights of publicity in New York. "Without strong protections in the law, companies will profit from your image, your work and your reputation, at your expense." NO REUSE Producers cannot reuse audio or visual footage of performers, or create new performances using audio or visual footage without their permission, except in certain limited circumstances. 1 2 3 4 While the union is working hard to get additional protections written into the law, it's not waiting for that to happen. SAG-AFTRA has been busy including protections in collective bargaining agreements. The language in the CBAs already protects members against some of the potential abuses of digital recreations and scanning technology — another example of the benefits of working under a union contract. For instance: It's always important for members to review their contracts, addenda and any attached riders or letters and make sure producers are not inserting language that allows them to take their scan, footage or stills and do with them whatever they please. SAG-AFTRA's Contracts Department is ready to help answer questions and review contracts. As what was once science fiction rapidly becomes routine, your union will continue to be at your side. PERMISSION REQUIRED Producers must negotiate with performers for permission to reuse their digital images in a different production. That permission cannot be obtained until after employment ends in traditional theatrical and television projects, but may occur at the time of employment for high budget new media projects. CONSENT The Independent New Media Agreements require the union's consent to use any digital scanning techniques to create digital reproductions of performers and they require the union's consent to use a digital recreation of an individual, living or deceased. NO DOUBLES Producers cannot use a digital "double" in lieu of a performer except under certain limited circumstances. sagaftra.org | Summer 2018 | SAG-AFTRA 33

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