Client: Jeff Cohen – Partner
Prince Royal, an actor in Los Angeles, was working as an extra on “The Flash” when he was directed to a tractor trailer to “take pictures.”
Inside were hundreds of cameras. He stood with his arms up as the operators took a 3-D scan, which he was told would be used for continuity and special effects.
“We were told if we didn’t do it, we’d be sent home without pay,” he said.
Now he feels like he was duped.
“We don’t know what all our scans are being used for,” he said. “They could possibly use our scans in other movies and other shows.”
That fear is one of the flash points of the SAG-AFTRA strike. Duncan Crabtree-Ireland, the union’s chief negotiator, has warned that studios want to scan background actors and then use artificial intelligence to place those actors in other projects “for the rest of eternity” without consent. The Alliance of Motion Picture and Television Producers says that’s not true.
Privately, studio sources are livid at Crabtree-Ireland, who they believe is mischaracterizing their position. On the union side, many fear that studios are taking notes from “Black Mirror,” and trying to replace actors with AI replicants without the actors’ approval.
As AI technology improves, background actors could be the first thrown out of work — the canary in the coal mine for the entire profession.
“If they have my image, and they can manipulate it any way they want, why do they need to hire me again?” asked Rick Markman, a background actor who said he has always refused requests for scanning.
About 32,000 people worked at least once as a background actor last year, making them a sizable share of the 160,000 SAG-AFTRA members now on strike. Within the union, they are the lowest paid workers — $187 a day — and have the least control over their image and likeness.
Extras used to have their own union, the Screen Extras Guild, but its membership was absorbed into the Screen Actors Guild in 1992. Gene Poe, the last president of SEG, said in an interview that the interests of background actors have traditionally been subordinate within SAG and SAG-AFTRA.
“When it comes to the wheeling and dealing, you’re on the low end of the totem pole,” he said. “Now with this whole thing with AI, it’s even worse.”
He said he “totally” supports the strike, and urges the union to take a hard line on the AI issue.
“If not, there won’t be any extra work 10 years from now,” he said. “It won’t exist.”
Extras typically get work through large casting agencies. At Central Casting, background actors are given a voucher along with their pay stub. On the back is a dense page of fine-print legalese, which includes an extremely broad release.
“I hereby irrevocably grant to Production Company all rights of every kind and nature to the results and proceeds of all of my services hereunder,” the document states, including all acts “to be used or not used in any manner Production Company chooses throughout the universe in perpetuity in all media whether now known or hereafter devised.”
Most actors don’t pay too much attention to the language, and for practical purposes, background performances are typically not spliced into other projects to be reused in perpetuity.
“It’s always been the position of the union that that boilerplate was meaningless,” said Ron Ostrow, a background actor who serves on SAG-AFTRA’s negotiating committee. “But in light of the advances of AI, it takes on a whole new meaning.”
The language is adapted from the SAG-AFTRA contract, which includes a standard form stating that background actors are giving up all rights “worldwide and in perpetuity.” In a statement, Central Casting said that the union has reviewed its voucher language “numerous times and not raised concerns.”
Principal actors do have some protection over reuse of their performances. The contract stipulates that producers have to bargain separately with performers for any reuse of footage in a separate production. But background actors are not considered “performers,” and are not covered by that provision.
As AI has become a hot topic in the last few months, extras are suddenly discovering how little protection they have.
“You’re signing your life away,” Markman said.
SAG-AFTRA is not trying to outlaw AI. Some performers — the Harrison Fords and James Earl Joneses — stand to profit handsomely from licensing their images for AI reuse. But the union is trying to lay down a principle that any AI use has to be done with consent and compensation.
The AMPTP has accepted that as a general rule, which is why the studios were angry at SAG-AFTRA’s characterization of their proposal.
The conflict turns on what counts as “consent.” The AMPTP proposed that for background actors, consent “may be obtained at the time of employment.”
The union argues that is akin to the current boilerplate release from Central Casting, where an actor has no leverage to say “no.”
“A boilerplate sentence on page seven of 12 of a contract document is not meaningful consent,” Crabtree-Ireland said in a conference call with members on July 18. “That is fictional consent.”
SAG-AFTRA wants informed consent — which would be bargained separately at the time of use, when performers would actually know what they’re consenting to. The AMPTP said it verbally agreed to that on July 12.
For now, SAG-AFTRA seems to be getting the better of this argument, at least in the public arena.
“The notion that you can take background actors or new actors and in their first contract get the right to their image in perpetuity is a crime,” said Jeff Cohen, an entertainment lawyer who represents actors like Michelle Yeoh and Ke Huy Quan. “That’s insane.”
Simon Pulman, a partner at Pryor Cashman, said that to resolve the issue, the sides will have to have a more nuanced conversation.
“What rights do the AMPTP companies actually need?” he asked. “They’re going to have to actually talk about the use cases.”
Studios have been using “tiling” to create crowd scenes for many years. For such scenes, a group of extras will be filmed sitting in one section of a stadium and then moved around, with the images copied and stitched together in post-production.
The technology is constantly improving and moving into new applications. VFX shops can now create “digital humans” by taking 3D scans of actors, and they have begun to incorporate machine learning into the process. AI is the next step in the evolution.
Digital humans are typically used when it would be dangerous or impractical to use a human actor, said Hanno Basse, chief technology officer at Digital Domain, one of the top VFX houses. And even then, he said, humans are still integral to the creative process.
“We see gen AI as a tool like any other in our toolbox, enabling us to efficiently create artistically pleasing results in support of the story,” Basse said. “We have found that it’s the combination of powerful tools such as Machine Learning and AI with the creative talent of our artists, which produces the photorealistic, relatable, believable, and life-like performances we are striving for.”
Royal, who was scanned for “The Flash,” sees background work as a stepping stone to an acting career. But now he fears that by agreeing to be scanned, he’s harmed his future prospects.
“That’s scary for someone who may become an A-lister down the line,” he said. “Now for that A-lister, all their images are already owned, because they were scanned as a background actor.”
He has written to SAG-AFTRA leaders, urging them to demand that in any deal, the studios must agree that all previous scans will be deleted.