Sora 2, AI Actors, and How Hollywood Can Fight Back

0:00Hi, everyone. It's Amy Poehler, and I'm launching a new podcast called Good Hang. In preparation for that, I asked some of my friends to send in some videos and give me some advice. Just be yourself and the guests will come. Don't be the celebrity that this is their, like, sixth thing they're doing. I love true crime and cooking podcasts. Is there any way you could combine the two? Well, everyone has an opinion and a podcast. So, join me for Good Hang. It's rough out there. We're just trying to lighten it up a little. This summer, FanDuel is the best place to bet on goals. Including equalizers?

0:35Uh-huh. Volies? Yep. Headers? Every goal is worth more on FanDuel. So, let there be goals. New customers get up to$1 ,000 and bet reset tokens when you bet$5 daily. 21 plus and present in select states. Opt-in required. Refund issued as non-withdrawable bonus bets that expire 7 days after receipt. Minimum$5 wager required for 5 consecutive days. Max refund$200 per day. Restrictions apply, including token expiration. See full terms at FanDuel.com slash sportsbook. Gambling problem? call 1-800-GAMBLER or 1-800-MY-RESET. It is Thursday, October 2nd. Have you checked out the latest update to Sora?

1:07That's the OpenAI video tool that's been incorporated into a new video sharing app, and it is quite something. Sound and video together, characters who talk and move much more realistically, and a whole lot of pretty blatant copyright infringement. I played around on the app this week and made my own versions of Wednesday Addams and Peter Griffin from Family Guy trading jokes at dinner. Cartman from South Park saying the you can't handle the truth monologue from A Few Good Men. A bunch more. Some characters were blocked by the app. I asked for a video of Batman and Yoda riding a motorcycle together, and that was a so-called content violation.

1:43But many others were not. And the ease that I was able to make my own mini versions of shows that Hollywood studios have put millions of dollars into creating and protecting was pretty stunning, not to mention the image and likenesses of real actors like Jenna Ortega and the voice of Seth MacFarlane, all there for the taking. A lot of people around town and online have asked me why Hollywood hasn't just run to court to shut Sora down. The studios may very well do that. Earlier this year, Disney, Comcast, and Warner Discovery sued a company called MidJourney over its video output, but it's complicated.

2:15As we talked about on the show, the legal framework for what's allowed to be used for training AI models is still unclear. Recent court results have suggested that training is maybe okay. It's the end result, the product that Sora is putting out. That's what we're focusing on today. OpenAI has declared that for likenesses of real people, it will use an opt-in system. That means you have to let OpenAI have access to your face for them to use it. But for copyrighted materials, that's movies, TV shows, music, etc., they will use an opt-out system, meaning every single piece of content, including Wednesday Adams and Peter Griffin, have to be specifically excluded from the model.

2:55At least some of the studios and talent agencies have said they want to opt out, Netflix and Disney for sure. But according to the Wall Street Journal, OpenAI will not accept blanket opt-outs. You have to individually request that each individual thing be excluded. And clearly, from my experience, opting out is easier said than done. A lot of people freaking out about this, and I think rightly so. So I wanted to have Duncan Crabtree Ireland back on the show. He's the top executive at SAG-AFTRA, the Performers Union. He's going to walk me through some of these implications of this new Sora video tool, how actors can protect themselves, what copyright holders should be doing, and what's really at stake here.

3:31Plus, a little on Tilly Norwood, that AI actress that got a little bit too much attention this week. From The Ringer and Puck, I'm Matt Felony, and this is The Town.

3:44Okay, we are here with Duncan Crabtree Ireland, who is the National Executive Director of SAG-AFTRA and its Chief Negotiator and a returning champion on the town. Welcome back, Duncan. Oh, hey, Matt. It's so great to be back. Always love it. Okay, so be honest. How much time have you spent on the new Sora app this week? I've spent a bit of time on the new Sora app this week, although I have to say there have been a few other AI-related developments. Yes, we'll talk about the AI actress. Yes, we'll talk about that. Yeah, I think all of us have been really, you know, wanting to see it. And, you know, I have to say, you know, in credit to OpenAI for this, we've had an arrangement with them where we have conversations in advance about some of these things.

4:30And so we did get a chance to take a look at Sora 2, not too far before its public release, but a little bit, as we have done with the original Sora release, and give them some of our thoughts about it. So can you share what some of those thoughts were? Yeah, I mean, I think with Sora 2, it was such a short period of time. I don't think we've given them coordinated feedback, but we have been talking to them ever since, even before the first Sora release, really about the robustness of protections, our primary focus, robustness of protections around name image likeness use in Sora and how to make sure that unauthorized deepfakery digital replication was not happening.

5:14and so as I imagine we're going to talk about, I'd say there's some success in that area and then there's some real challenges there. Well, the first video I made yesterday was a prompt that said, Wednesday Adams having dinner with Peter Griffin from Family Guy and talking. Boom, popped up. Jenna Ortega looked almost real, almost real, chatting with Peter Griffin, making dumb jokes about, you know, in the style of Wednesday and Family Guy and with their voices. It was either Jenna Ortega or something very similar. And it was Seth MacFarlane as Peter Griffin or something almost identical. Like, what do you do with that?

6:00You know, one of the things that all of us should take away from what we're seeing with or two is any theory that this technology is not going to advance far enough to make it a serious threat to the legitimacy of content, to people's control over their own image, likeness, and voice. I mean, you can't rely on that. It's like, you know, for a long time, people relied on the uncanny valley to protect actors from, you know, from really being replaced. You can't rely on those things. That's why it makes me feel good about the efforts that we have undertaken, not because they've achieved the ultimate goal, but because they are absolutely warranted because look at where this technology is going.

6:41It is of real concern. And that's why we need to take it seriously now and not wait until it's too late. All right. So we'll get into what you guys are doing about it. But I want to be clear here about our terms, because there's a difference between using actors and performances and other copyrighted materials to train these models. It is very clear that that is happening. And then there's the concern about the output of these models. And the legal framework for this seems to be heading in the direction. I know that the industry has not conceded anything, but some initial rulings are that courts are going to look a little bit less negatively on the training aspect and are going to focus on the output and whether these outputs are infringing on any rights.

7:31Is that your understanding as well? I think that's a really likely outcome. I mean, nobody is giving up on the fight to say this is not fair use. Certainly SAG-AFTRA doesn't think it's fair use. I think the rights holders don't think it's fair use to just sort of train on any and everything you can get your hands on. I mean, if you look at their video that they put out, their training video. I mean, the dragon looks like how to train your dragon. And the people look like people that you recognize and are famous people. It's just they tweaked a little bit. Right. I mean, I kind of feel like the motto of the entire industry should be, you know, ask forgiveness, not permission is kind of what they're doing.

8:09And it's clear the courts so far have not been willing to do anything to preemptively stop them from doing it. The litigation is far from done. But, you know, The early indications are not clearly favorable towards the rights holder's point of view. I mean, there is and should be real concern about the possibility that copyright law is not going to do much to clamp down on the training side. And so, you know, the output side is an area where we've certainly been really focused. And I think all of us need to pay attention to it. Also, because let's not forget, some of this use of people's face, voice, bodies in these technologies are not going to be protected by copyright under any scenario because it's not a copyright issue.

8:55That's why we've got to have new rights to make sure that those of us who don't want just random people to be able to do and say things in our face and our voice, you know, don't have the right to do that. Well, what would be an example of a new right that could be created? A national right of publicity law? Or, yeah, please, enlighten us. Well, so the No Fakes Act, which is the bill that we've been pushing really hard in Congress, would create a new federally recognized intellectual property right in your face, your voice, your body, and would basically give you the right to say yes or no, a consent right and a compensation right attached to any of those types of uses.

9:36And that's independent of copyright. So it's not because there's some copyrighted element that's being reproduced. It's because you as a human person own the right to control the use of your face, image, voice. Obviously, there are First Amendment boundaries around that that are part of that bill. But, you know, there is a, I think a lot of people, probably a lot of your listeners think that they already have the right to control the use of their face, image, voice, right? So many people say that to me. I didn't give permission for this. And the unfortunate reality is unless you're a super famous celebrity and you have a Lanham Act claim, or unless it's a trademark and there's a state right of publicity claim, you probably don't have a really good claim.

10:18There might be some privacy or other things. I mean, there's various like edge claims that you can try and make, but there is not a clear intellectual property right. And importantly, there's not a clear right that's not preempted by Section 230 of the Communications Decency Act. So when you're talking about social media platforms and getting anything taken down, that's a huge problem as well. So this bill like solves a lot of that. And that's a right that I think, you know, this sort of two and so many other things that are happening out there show us why we really, really need this to be enacted.

10:51Yeah. Okay. So a lot going on there. OpenAI has taken the position that likenesses are being dealt with differently than copyrighted materials. That's what they say. One of their executives has gone in the media and say our general approach has been to treat likeness and copyright distinctly. And when you go on the app, you have to give them permission and upload a photo of yourself to be ingested for what they call cameos or putting yourself in videos. And if you try to make videos with real people and with most celebrities, they will tell you no, that you can't do that. So that's a win for you guys.

11:34But then again, there's something like what the Jenna Ortega example is. She's playing a character. Clearly, they have trained the model on episodes of Wednesday. And what rights does Jenna Ortega have when she is now being manipulated to say things she would never say or the character would never say in the Sora app? Obviously, number one, you know, Jenna Ortega, just as an example, and this would be true of anybody. So I know this is not unique to her, but we'll use that example since that's the one that you sort of prompted. Jenna has given certain rights to producers who have used her in their projects.

12:14MGM produces the show, Netflix distributes it. Right. So in that case, if they are promoting Wednesday by using content that has been created for the Wednesday project, and they're doing it on a platform like Shora, etc., that typically is completely permissible and covered by that, not by digital replication, but by clip use by other forms like that. Sure. And she may have approval rights or anything like that contractually with whoever produces. Correct. Under our collective bargaining agreement, though, what they would not have the right to do is to give some third party like Sora or OpenAI the right to digitally replicate Jenna without her separate permission and consent.

12:55Our contract provisions are very, very clear on this point. Any kind of digital replication of a performer has to be with informed consent, including a reasonably specific description of the intended use. And so a generic sort of grant of rights to say, oh, okay, you can take her image or likeness in the form of Wednesday and just do whatever you want with it through digital replication would not be allowable at all. Couldn't even be consented to under our contract. But what if OpenAI is just ingesting every episode of Wednesday without Netflix even knowing or having control over that? Right. That is, I'm assuming, exactly what is happening, right?

13:33Yeah, I asked Netflix about this, and they said they have opted out. A couple of studios, and I'm sure everyone eventually will say, we're opting out, and we'll get to the opt-out stuff. But that didn't stop OpenAI from taking episodes of Wednesday and creating a movable, talkable Jenna Ortega. Right. And this goes right back to ask forgiveness, not permission, because on the ingestion side, right, none of them are asking for, I mean, there's a few deals that are going on where they're licensing content for people, but largely these models are populated with data that there's been no consent given, not even asked for, right?

14:08So I'm assuming that's the case here. And on the output side, if you're not a signatory to a collective bargaining agreement like one of ours, if there's not a right of publicity claim under state law, if there's not a Lanham Act claim under federal law, which would have to be filed by the parties involved, then you don't really have a legal claim. And that's why that no-fakes bill I'm talking about is so important, because if that were the law, then there would be a separate claim for name-image likeness, voice use, that Jenna Ortega, as an example, or any person could pursue when that kind of output is done without their permission.

14:46as things stand right now, you know, someone would have to do a legal analysis of the various possible claims. Could there be a Lanham Act claim? Maybe because of who Jenna Ortega is. But if this were somebody who's not at that level of prominence, there probably wouldn't be a Lanham Act claim, right? That's a trademark claim, meaning her name and her face and everything has generated meaning in the marketplace. And you are deceiving people by suggesting that she would do in these videos what she is doing. Right. And so, you know, there are various cases where there might be something that could be done, but in a broad swath of this type of use, there really isn't the legal framework to protect it.

15:25And that's why we all need to do something about this now. Now, I don't want to just demonize open AI here. I mean, Sora 2 is a highly visible example of this, but there are lots of other tools and models out there that are doing things, perhaps not with the level of sophistication, but certainly with the disregard for people's image rights, copyright, and everything else. Yes, and the studios are suing mid-journey, and they're sending cease and desist to others. And this is a whack-a-mole situation because there are going to be millions, not millions, there's going to be many, many startups and models that can do this.

16:02And it's only the beginning innings of this game. You're absolutely right. And I think a lot of these AI companies are basically saying, look, we're going to take the chance that we lose these cases someday for the benefit of our sort of first mover advantage now, and just like getting as far down the road as we can with this. And either, you know, we'll make so much money that whatever it is that happens in the court case won't matter to us. Or we won't, in which case, maybe we'll be out of business before any of this ever actually comes home to roost. And by the way, they learned that from Google.

16:36I mean, 20 years ago, we were talking about this with YouTube. And YouTube came to prominence because of Lazy Sunday and Daily Show clips and all sorts of copyright material that was on YouTube. And Viacom sued and others made deals. And they essentially bludgeoned the industry into accepting this as a new product. And ultimately, it became the biggest media company in the world. But Matt, we should say, I mean, I do think within the Cameo function, the level of controls and the framework they built for that, I think that's quite interesting. And frankly, I do think that reflects a lot of feedback from artists, certainly from us and from others who've said, you know, if you're going to do this kind of stuff, you've really got to give people control.

17:23You've got to give them... I mean, you can see the informed consent model embedded in the Cameo structure. Would you upload your photo to Sora? I certainly wouldn't. If I were going to consider letting people use my Cameo on Sora 2, I'd just say, also, I'm not an actor. So to me, my livelihood is not based upon the use of my image or likeness in that same way. So I think that's, you know, it's hard to equate that because that's something that can be lively and threatening. And it's ironic that they named it Cameo because as you know, a bunch of our members actually make money by doing short videos on a tool called Cameo that this could literally do the same thing if content protection isn't working right and if their image and likeness is available to people to use in the video.

18:13So, and I think one of the things people need to do is look at the terms of service, right? And we've looked at the terms of service for the Cameo function. I actually think the terms of service for it are surprisingly reasonable. They're not as one-sided as you would normally expect those kinds of things to be. I'm not saying that we're endorsing those terms of service or don't have issues with it, but I do think that if you have the control, that's the key point. And so, you know, I guess what I would say is I'd like to encourage other AI companies who are developing these kinds of tools to embrace the concept of people should have the right to decide whether they're in.

18:49I mean, Cameo is opt-in. It's not opt-out. And let's get into that because that's a key element here. By the way, my kid is never using Sora for this purpose. Never giving his photo. As far as you know. As far as I know, exactly. Good luck. He'll start sending me videos of him hitting home runs for the Dodgers and be like, what? Where'd you create this? All right. So the opt-in versus opt-out thing. I mean, copyright law for, you know, 100 years now, has been based on the opt-in scenario. You have to affirmatively decide that the rights you have in your copyrighted work are going to be licensed or given to another person.

19:32Now, what OpenAI is doing here is they are saying, no, no, no, no, we would prefer that this be an opt-out situation. We're going to use whatever we want to use. And if you don't want us to use it, just let us know. The onus is on you. I was talking to Aaron Moss, who's a big copyright lawyer that I know. And he's like, this is just turning the entire system on its head. And it's using this pretense of the Digital Millennium Copyright Act, which you referenced. Section 230 is a little different because it's more about the liability for people that are posting things on social media platforms. It might be defamatory or something like that.

20:11But the DMCA has this, system where if there are copyrighted videos on YouTube or other platforms, you have to affirmatively notify the platform and they will take it down. And OpenAI is leveraging that to try to apply it to a very different platform. This is not just hosting videos or hosting copyrighted images that people post. This product is affirmatively altering, perverting, changing, exploiting these intellectual properties and creating new products out of those intellectual properties and trying to lean on this opt-out system. And it just seems like that is an absolute loser for the copyright industry.

21:06Yeah, I couldn't agree more. Look, we have gone down a bad road with opt-out. And unfortunately, I mean, I admire many things that the EU did in the AI Act. But one of the, in my view, worst things about the EU AI Act was that it embraced this opt-out idea for text and data mining. And that, I think, sort of has emboldened others to feel like, oh, yeah, that's a normal thing where, you know, you can basically say to the world, I'm just going to take your stuff. And if you don't want me to, just let me know. But that's an impossible burden on rights holders, on creative people. Because how are you supposed to know every possible entity in the world that is using your stuff and go to each one of them and tell them I'm opting out?

21:51Like, that's not a realistic possibility. I mean, these studios and streamers, they own hundreds and hundreds of thousands of characters. and if you know net like for instance netflix and disney and a couple others are opting out but you can't just i mean it's an impossible task to opt out of everything and we're seeing it on the platform because i'm able to create videos i mean peter griffin pretty available cartman from south park pretty available spongebob very available these are very valuable characters that are just being absolutely perverted on these sites and i know that there are companies that do this.

22:29Like Vermilio is one of them. There's another one, name I forgot. There are companies that these studios outsource this task to, and there are lots of products that are trying to be created where they can use AI to essentially counter AI. So it's like an arms race of trying to figure out where they are. For sure. Right, exactly. Yeah, I'm sure you guys are. I mean, I know the talent agencies are involved in this. They have said to, William Morrison Devers said to OpenAI that they're opting out all of their clients. I mean, that's a lot of very prominent people that they're saying they're opting out, but I don't think it works that way.

23:06I think that they are going to require individuals, characters, people, all these other things that are part of the copyrighted materials to send their own notices. Right, because they don't really want you to opt out, obviously. Of course you don't want them to. And I think what you said though, Matt, is so important, which is for people to recognize this is not like a social media platform that's just hosting content. Right. I mean, I have issues with that. I have issues. This is where I mentioned Section 230 of the Communications Decency Act earlier, which is this concept that there should be immunity for platforms that are just neutrally hosting content and, you know, provided they have a notice and takedown procedure, whatever.

23:42But the reality is, this is not a hosting of other people's content platform. This is a tool that is actually creating content. And it was never meant to be the case that there was some idea that when you actually are the creator of the content, that there's some safe harbor based upon, you know, after the fact, someone can just come and tell you, take it down. If that were the rule, that incentivizes copyright infringement. That incentivizes people to do exactly what we're now seeing, which is abuse those rights. And so that can't, that really can't stand when we have to do something to address that.

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25:21connecting brands with the moments and fandoms that matter most. To learn more, check out Accenture.com slash Spotify. All right. So you say we have to do something, but how do you think this is going to play out? Because I've heard one theory is that OpenAI wants to get sued. They are purposefully putting this out there to hopefully generate a big industry-wide lawsuit and maybe even a class action. And then it would allow this entire group of rights holders to be treated as the same in one case, and it will proceed as one case, and then they can get a settlement and an opt-in from this entire group versus having to get every single actor, artist, studio, character, participant, et cetera, to sign individual opt-ins.

26:10And at the end of the day, the industry will cheer and say, we got a billion dollar settlement from OpenAI, but the rules of the road will be established. Hollywood will be able to say, we were right, but they will once again be left behind and the business of AI will trudge forward with copyrighted materials. Is that the cynic's view? Yeah, I think that is the cynic's view. I mean, I'm not saying it's not true, but I think it is the cynic's view. However, I would say, I do think the companies are very clear on the fact that the value of their intellectual property here, it's not a one-size-fits-all scenario.