Artificial intelligence and digital replicas: NZ performers need protection against new technology

Jennifer Ward-Lealand says digital replicas could strike a fatal blow to professional performers' livelihoods.

THREE KEY FACTS

• The Government is seeking feedback on its creative sector strategy, designed to increase Kiwis’ engagement with culture and creativity.
• The strategy features three strategic pillars for government over the next six years.
• These include maximising impact through the $450m annual Crown investment, nurturing talent and providing sustainable career opportunities and modernising government regulation to allow cultural sectors to thrive.

You’ve settled down to watch a TV series starring your favourite New Zealand actor.

You liked her in earlier shows. You are excited to see her in something new. You had put the series on your “binge list”.

The thing is, your favourite actor isn’t in the show at all. It’s a digital replica: a computer-generated, highly realistic electronic representation. A fabrication – all created from AI software.

This is the new frontier: digital replicas of featured performers will be created by AI software that “reads” existing video material, past shows and films the performer has been in – and then inserts a digital version of them into a new audio-visual setting.

Digital replicas could strike a fatal blow to professional performers’ livelihoods. Why employ a real person when an AI software product will do the job for you?

Celebrity voice simulators are widely available on the internet.

A TikTok user recently used AI to imitate the voices of bestselling artists Drake and the Weeknd. The song went viral, with over 11 million hits, but Drake and the Weeknd had nothing to do with it. Simulated moving images of working actors are not far away.

The Weeknd and Drake seemingly exchange lyrics about the pop star and actress Selena Gomez in Heart On My Sleeve.

Before this nightmarish future arrives, the Government must take steps to ensure television and film viewers get authentic and genuine performances by our professional artists – not phoney algorithmic concoctions derived from digital scrapings from old movies and television programmes.

And performing artists should be protected against having their livelihoods digitally stripped away.

In the United States, in a rare moment of bipartisanship, Republican and Democrat lawmakers have come together to promote bills to protect the public and working performers from these digital forgeries.

The proposed Nurture Originals, Foster Art, and Keep Entertainment Safe Act – known as NO FAKES – would create a new kind of intellectual property in voices and visual likenesses.

The proposed law does not ban digital replicas altogether. It recognises that AI has a role to play in audio-visual productions. But it gives control to the performers themselves: they get the say over how their digital likenesses are used.

The US labour union for screen actors and radio and television artists, SAG-AFTRA, took industrial action to secure rights like these. Lawmakers have listened.

The New Zealand Government, in its 2024 draft creative and cultural strategy, states it wants to nurture talent and “values all creative work, people, and audiences”. Introducing similar legal protections to those in the NO FAKES bill would help make these aspirations real.

Think about who would make money from digital replicas without these kinds of protections.

The software companies that license the AI products. Digital platforms and downstream distributors and advertising companies. The production companies that save money by not employing humans. Even owners of the old films and programmes can make a buck from licensing their copyrights so that their “assets” can be used for AI machine learning.

The only people who wouldn’t get paid are the professional actors whose performances are transformed into the “data” from which these digital replicas are generated.

You might ask what the problem is: the performers already got paid when they were cast in the original films and television programmes that the AI software “read”.

Making a living as a professional performer is already perilous, especially in Aotearoa.

Television production companies here stopped paying “residuals” in the 1990s – payments many actors overseas take for granted when programmes are repeated in different time slots or screened in foreign markets.

Only the producers here make money from repeated sales. Collective bargaining rights were stripped away from NZ performers long ago. Voiceover work for local television commercials has been drying up for years, as New Zealanders’ viewing habits shift from advertising-supported prime-time viewing to digital platforms and social media.

And movie producers hold the Government to ransom – threatening to move productions offshore unless they’re given the okay to pay local actors much less than foreign colleagues, or often not to employ local actors at all except for minor roles.

Digital replicas would extract even more value from working actors’ performances – value that was never paid for in the first place. Actors’ bargaining rights have never been strong – and how could anyone have bargained fairly when we didn’t know these AI technologies would exist?

This is where legal protections like the ones being discussed in the United States are so important. But even if the US proposals pass through Congress, they won’t apply here. And no international treaties protect performers and viewers against digital replicas.

Our performers here have a few legal protections, but there’s nothing as comprehensive. We need our own Aotearoa version.

This is not just about fair compensation. What’s really at stake is the humanity of the professionals who deployed their skills and poured their souls into their original performances. The right to control one’s image and likeness is a matter of basic human dignity.

Audience interests are also key. Unless performers are given rights over digital replicas, AI-generated fakes will soon be all we have.

There will be no new performances to feed the AI platforms. Do we really want a future in which all “new” movies, television, and other media projects are self-cannibalised rehashes of “data” from a distant past, or entirely fabricated, digital animations with no human input except from programmers?

If we want a vibrant and constantly evolving culture, our aspirations should be higher.