On AI Removing Creative Constraints

constraints

A paper by Eleonara Rosati titled The future of the movie industry in the wake of generative AI: A perspective under EU and UK copyright law states the following:

…some have stressed the opportunities presented by the implementation of AI, including by advancing claims, like those made by AI video studio The Dor Brothers that at AI tools ‘are actually a purer form of expression, offering the most direct link between the artist’s brain and the end result, without the compromises required in large productions or the constraints that come with complex shoots’

The quote by The Dor Brothers raises a question I imagine many creators ask all the time—why use generative artificial intelligence (GAI) to produce anything? The answers will vary depending on the medium of expression—from the sculptor who says “never” to the audio-visual producer who says “all the time”—because beyond the legal issues triggered by GAI, the technology reframes the question of what it means to create works of expression in the first place. And this includes the question as to whether removing “constraints” is either conducive or harmful to the creative process.

Although motion picture production entails more non-creative constraints (e.g., large investments and complex logistics) than all other media, I would caution that even in filmmaking, constraints are generative of creativity. In the same way that working around copyright constraints tends to produce new creative expression, this is also true of the limitations inherent to each medium. Moreover, the idea that an artist does not want to confront the constraints of her chosen medium is misguided, and the passion to confront those challenges is not a matter of mere nostalgia.

I get what the Dor Brothers are saying, of course. The AV producer can go from script to screen without any of the costly and cumbersome production work that will frustrate, if not substantially alter, the original vision. Screenplay material becomes prompts, and the GAI outputs the AV material without the need for cameras, actors, sets, etc. Still, the extent to which the outputs more “purely” represent the mental conception in the “artist’s brain” is both a question of copyrightability and artistic integrity. How much control the AV prompter has over the resulting material will determine the extent to which he owns the rights in that material, but even with extensive control, the “purity” of the expression is not necessarily preserved by the removal of constraints.

Notwithstanding many useful applications of AI, including for various aspects of artistic work, all the talk about “democratizing” creative expression (i.e., without developing skills in various crafts) reprises that question Why? for many artists. If you don’t enjoy dealing with the constraints of clay, paint, words, light, sounds, etc., then you probably don’t really like the process of creative expression. Again, that’s not just luddite’s nostalgia. Creative expression (art) results when the unique, imperfect human confronts, learns from, and eventually masters the constraints of a chosen medium. As my friend Sandra Aistars, copyright professor and, recently, a fine art student, writes about the distinction between AI “training” and human learning:

… instead of predicting “what comes next,” artists studying masterworks are taught to unlock “how” the original artist has conveyed what is foundational to an image’s storytelling. This requires patience, humility and empathy on the part of the artist asking to learn. But it ends in developing one’s own aesthetic judgment and voice.

Aistars describes engaging with the constraints of visual artmaking by retracing the steps of masters in order to discover her own aesthetic. The process is physical, intellectual, and emotional at the same time, and most artists would ask why a creator would want to avoid engaging with the medium in this way. It is the act of confrontation and the artist’s unique mode of problem solving where the meaningful act of creating occurs for the individual.

Using GAI as a cheap or free assistant to write a boilerplate email or report makes sense, but the hyped-up marketing of these products, challenging users to push AI to “write poems or novels” is asking people to fool themselves. You might have a brilliant idea for a premise, but if you don’t want to grapple with the constraints of writing, you’re not a novelist any more than you’re the “boyfriend” of an AI companion.

Turning back to the Dor Bros.’ comment, because motion picture production entails thousands of constraints that are not necessarily generative of creativity, their point has some merit in certain applications of the medium. Specifically, a lot of their work appears to be commercial advertising at this time, and the utilitarian nature of marketing material, combined with the attraction of low-cost, fast-turnaround production cannot be ignored. Nevertheless, I would caution against the idea of a “pure” link between an artist’s “mental conception” and the end result by means of removing constraints.

Motion picture production still entails many constraints that are generative of creative expression. Just as Aistars chooses to wrestle with the possibilities and limitations of a particular pencil in her hand, the filmmaker has a complex set of “tools” that include the constraints of physical space, light, camera and lens characteristics, performers, writing, time, which must be confronted to find the film’s unique voice. And as any film student can tell you, working around constraints has often resulted in moments considered to be works of cinematic genius.

Naturally, GAI is already used to reduce or eliminate certain drudgeries in creative production, and although this also implies reducing or eliminating various jobs, that is a separate matter from the philosophical premise to which this post responds. In general, I am skeptical that a seamless, constraint-free transition from mental conception to creative expression is desirable, even if it is achievable. Constraints define the various artistic media, and it seems more likely that expression through GAI will evolve as its own medium with its own constraints. Otherwise, if GAI’s only purpose is to synthetically displace the creative process in all media, the results will likely be as bloodless as the computers that made them.


Photo by: Ponsulak

On the Use of AI Likeness in Motion Pictures

In my book, published in 2020, I speculated about a biopic made with an AI-generated likeness of Carrie Fisher; and this week, Variety reports that a motion picture about Edith Piaf is now in development that will use AI-generated likenesses of the famed torch singer. So, now that the hypothetical is reality, what are the considerations beyond the obvious loss of job opportunities for performers to play these roles?

One possibility, of course, is that audiences won’t respond well to this approach to biopic. Part of the appeal of the genre is watching a skilled actor play an important, beloved, or even detested figure. I can only speculate about what would be lost if, for instance, the motion picture Ray did not feature Jamie Foxx becoming Mr. Charles, but my instinct is that the overall experience for the viewer would be diluted. This is not to say that new forms of expression will not emerge from experimenting with AI likenesses (e.g., CGI already features in reenactment sequences for documentary projects), but these are aesthetic and market considerations. What about the ethical or legal questions?

Mostly Not a Copyright Matter

To begin, the right to dramatize a real person’s story in a motion picture is not necessarily a copyright matter. Copyright applies if, for instance, biographical material has already been written (or otherwise recorded) because copyright only attaches to a work fixed in a tangible medium of expression. So, if a film is based substantially on a single biographical book about Edith Piaf, then the film is arguably a “derivative work” of the book, and the book’s author reserves the right to allow production of the film. That said, facts are not protected by copyright law (i.e., many authors can write biographies about the same figure), and a biopic can be produced based on an original screenplay encompassing the writers’ own research into the subject.

Rights of Publicity

I mention all that to distinguish copyright rights from what are often referred to as “life rights,” a broad, industry term that is often viewed as adjacent to state law rights of publicity (ROP). Importantly, though, ROP entails use of a likeness, which does not cover use of biographical information for the purpose of portraying a real person as a character. While it is often wise (and courteous) to obtain permission to use part or all of someone’s story in a motion picture, individuals do not have absolute control over such portrayals, especially if they are public figures and the depictions are based on an available record. If the law held otherwise, the Trump family could, for instance, exert control over all dramatizations of The Donald, and any future biopics would basically be remakes of The Greatest Story Ever Told.

Of course, there are certain limits. Although the bar for defamation or libel can be high, a motion picture portrayal of a real person can trigger a valid claim of this nature, and it is interesting to ask whether these considerations may be different when the producer uses an AI-generated likeness to perform a potentially damaging scene. Biopics often interpolate the narrative by producing scenes or dialogue that are plausible but not necessarily factual. In this context, then, might the additional step toward “reality” with the use of an AI-generated likeness of the subject alter the burden on the producer to adhere more faithfully to the record?

ROP laws vary state-by-state, and are statutory in half the states, but nowhere do they apply to an expressive use of a likeness in contrast to a commercial advertising use. You might have read that Scarlett Johansson is suing app developer Lisa AI for use of her generated likeness in a social media ad posted on X. Variety describes the facts thus:

The ad, reviewed by Variety, begins with an old clip of Johansson behind the scenes of Marvel’s “Black Widow.” Johansson says, “What’s up guys? It’s Scarlett and I want you to come with me…” before a graphic covers her mouth and the screen transitions into AI-generated photos that resemble the actor. A fake voice imitating Johansson then continues speaking, promoting the AI app. “It’s not limited to avatars only. You can also create images with texts and even your AI videos. I think you shouldn’t miss it,” says a voice that sounds like Johansson.

Based on that description, this sounds like a textbook violation of Johansson’s ROP, using her likeness for the purpose of advertising, and there could also be a violation of Disney’s copyright for use of the Black Widow clip. This is not the first story of its kind to emerge concurrent with recent advances in AI, and I believe that companies using celebrity likenesses in this way should face damage awards and injunctions sufficient to achieve deterrence. If Johansson et al. do not seek punitive outcomes in these cases, then the violation and litigation can become promotional opportunities for the infringing companies—a strategy right out of the Silicon Valley playbook:  infringe now, apologize(ish) later, and reap the publicity benefits of the violation.

Likeness as Individual vs. Likeness as Performer

Because Johansson is a real person and an actress, it’s important to distinguish between her AI-generated likeness as herself and her AI-generated likeness as a character in a motion picture. As mentioned, ROP is neither federal law nor (as it stands) applicable to the use of Johansson’s likeness 30 years from now in a biopic about her. Regarding her likeness as a performer, the SAG-AFTRA agreement with the producers appears to strike a balance for now—namely that filmmakers retain some latitude for the use of generative AI replicas, but they cannot willfully “cast” performers in motion pictures by means of AI replication without permission or compensation. We shall see how things play out for lesser-known and background performers going forward, but for the time being, we won’t see Johansson’s AI avatar playing any roles without her permission.

And that brings us back to projects like the Piaf biopic. While there is no legal barrier, at least in U.S. law, to prohibit the use of AI likenesses of real people for expressive purposes, a film like the Piaf project implies a challenge for the future negotiating power of performers, if audiences demonstrate that they enjoy motion pictures without flesh-and-blood actors. This is, of course, the anxious question on the mind of every performing and creative artist since the explosion of AI over the last couple of years. Will the machines replace us all? Will the motion picture industry, for instance, be reduced to a few hundred computer programmers, ten executives, and a couple of social media gurus?

I tend to doubt that such bleak outcomes are likely. Even without new legal frameworks, I expect some of the frenzy over certain creative uses of AI will settle down as producers discover ways to enhance, rather than overwrite, the fundamental magic that makes an expressive work like a motion picture engaging for viewers. That may be wishful thinking, of course. I suppose it’s possible that the future will comprise a world of AI performers with artificial biographies, which will then be dramatized by subsequent generations of AI performers. At that point, though, I imagine the “audience” will also be AIs that “woke up” and wiped us all out. So, it won’t be our problem.


Photo by: Artyme83

When the State Steals Your Work – Podcast with Rick Allen

In March 2020, the Supreme Court delivered its opinion in the case Allen v. Cooper. The outcome was not surprising because the Court affirmed precedent ruling from the late 1990s which held that the 11th Amendment bars suing a state or state actors for damages stemming from intellectual property infringement.

Thus far, I’ve explored the murky waters of state sovereign immunity as it relates to Allen v. Cooper and other cases, including author Michael Bynum and photographer Jim Olive’s lawsuits filed in the State of Texas. So far, my focus in this area has been academic. But on February 8th, Rick Allen filed an amended complaint in North Carolina, and after I read that narrative, I wanted to invite Rick back to the podcast to talk more personally about his story, what it means to him, and what it should mean to anyone who hears it.


Show Contents

  • 1:15 Becoming an Underwater Cameraman
  • 11:06 Queen Anne’s Revenge Opportunity of Lifetime
  • 15:06 Wreck Diving and Filming
  • 27:19 Personal Investment
  • 37:20 Rare Cooperation Between Treasure Hunters and Archeologists
  • 43:00 A Near-Fatal Accident
  • 48:00 State Infringements
  • 59:00 Blackbeard’s Law
  • 1:05:00 Suing the State of North Carolina
  • 1:16:00 Implications for All Creators
  • 1:29:00 Overlap with Censorship

Photo of Rick Allen by Cindy Burnham.