Not-So-Secret Invasion: The Infiltration of AI into Creative Work
Over the past few months we’ve spoken at length about the legal issues surrounding the use of AI-generated art—both here on our website and with our friends over at Extra Credits—but it’s worth taking a step back from the complex legal questions surrounding this new(ish) technology and examining some practical business impacts it is having in the entertainment world today and may yet have in the future. It’s always good to check out both the forest and the trees, after all.
Above: A still image from the opening credits of Secret Invasion
By way of a case study, on June 21, 2023, Disney released its latest Marvel TV show Secret Invasion on its streaming service Disney+, which follows grizzled super-spy Nick Fury (played by Samuel L. Jackson) as he attempts to uncover and unwind an alien plot on Earth by sinister, shape shifting Skrulls. The opening credits of Secret Invasion feature abstract, green-hued images flowing in a jittery, semi-animated sequence that, coupled with an ominous orchestral score, provoke a sense of inhuman (but not those Inhumans) otherness. And in fact, it was soon revealed that the images in the title sequence were not created by humans at all, but rather by generative AI programs used by video production company Method Studios.
When news of Method Studios’ use of AI to create the credits sequence dropped, there was an immediate outcry on social media over speculation that the tool may have cost artists their jobs. The fear of generative AI replacing artists is a common concern among opponents of the technology. And Method Studios’ clarification that “[n]o artists’ jobs were replaced by incorporating these new tools” has done little to quell public concerns, especially in light of the ongoing Writers Guild of America strike, in which the WGA is demanding (among other things) better regulation of the use of AI in scriptwriting.
Legally-speaking, Disney is of course free to utilize generative AI technology to supplement or even replace some of its more traditional art needs. Even so, as we’ve mentioned before, the use of AI technology to generate commercially reproduced art, even with human-controlled edits and manipulations, comes with very real risks. As comic book creator Kristina Kashtanova discovered earlier this year, the images created by generative AI software do not meet the “product of human authorship” requirement and so do not qualify for copyright protection. This means that AI images used in the Secret Wars opening are essentially free for others to copy and distribute. While Disney, like Kashtanova, might have some claim to the specific selection and arrangement of the resulting images, as well as any human-directed transformations or edits on those images, those protections are thin, and do not extend to the underlying images themselves. Practically speaking, Disney may not actually be overly concerned with controlling the use of the individual images used in the Secret Invasion opening credits, so perhaps this was a calculated risk on their part.
But more prominent uses of the output of this technology, as Disney has done, highlight some of the non-legal, practical considerations a studio must also make before fully leveraging generative AI. The public relations effect of the technology’s use—especially at a time where the technology is still developing, largely unregulated, of questionable quality, and the subject of significant ethical debate—needs to be weighed against any perceived benefits it might offer. If the technology saves time or money on the development backend but results in having to fight a costly PR campaign, is it really worth it? Or, as the old saying goes, is there really no such thing as bad publicity?
One thing that does seem clear is that many parties, from small indie developers to the largest entertainment studios on the planet, are keenly interested in seeing how generative AI can be used to streamline and otherwise improve their development processes. But studios and developers of all sizes need to be aware of the risks, both legal and practical, associated with the technology.
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Tyz Law Group is a boutique litigation and IP counseling firm comprised of former big law and in-house attorneys with highly specialized expertise in the technology sector. If you have any questions about the issues discussed in this article, please do not hesitate to contact us at (415) 868-6900 or contact@tyzlaw.com.
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