The European Union seized the early global lead in regulating artificial intelligence (AI) by passing its AI Act on March 13, 2024, following a lengthy legislative process.[1] Meanwhile, across the Atlantic, the U.S. Congress has made noise about the need for federal AI legislation, but progress has been slow. The absence of a similarly comprehensive federal law from Congress has created a vacuum that is now being filled by individual states.

The U.S. District Court for the Northern District of Illinois found on April 22, 2024, that those submitting copyright takedown notices under the Digital Millennium Copyright Act (DMCA) must consider whether the materials claimed to be infringed were eligible for copyright protection prior to submitting the takedown notices.[1] Failing to make this evaluation—similar to a submitting party’s duty to consider fair use prior to takedown[2]—could lead to liability under Section 512(f) of the DMCA for parties who knowingly and materially misrepresent that third-party content is infringing in a takedown request. A knowing representation can be inferred from business practices that constitute “head in the sand” willful blindness—a meaningful risk for companies who handle their DMCA takedowns in-house and without input from legal counsel. Under the wrong circumstances, erroneous DMCA takedowns can lead to liability for tortious interference as well.

The explosive growth of generative AI has been accompanied by a corresponding growth of contractual provisions addressing generative AI issues.

Website operators in particular are increasingly seeking to use their online terms of service to prohibit the use of content and information hosted on their sites to train AI systems. Disney, for example, recently updated its online Subscriber Agreement for its Disney+ service to clarify that content from the service may not be accessed, copied, or extracted “for the purposes of creating or developing any AI Tool.”

In the fall of 2023, the Writers Guild of America (WGA) and the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) each ratified new agreements, amending and building upon their collective bargaining agreements with the Alliance of Motion Picture and Television Producers (AMPTP). The WGA, a union that represents film and TV writers, and SAG-AFTRA, a union that represents actors and performers, sought to protect their members from replacement by generative and non-generative artificial intelligence (AI). These negotiations followed months of strikes from both organizations that effectively halted the making of movies and TV shows for much of 2023. These new agreements take somewhat different approaches—in part because of the nature of what each union is trying to protect—a member’s voice and likeness for SAG-AFTRA vs. written content for WGA. But both agreements contain provisions aimed at protecting the jobs and income of their members. This blog post will provide an overview of key AI provisions in both agreements and how they will apply to the writers, performers, and producers covered by these guild agreements.