Hollywood’s Script Writers v. ChatGPT: Is No Occupation Safe Anymore?
By Dr. Jim Castagnera, Esq. (First published in the Labor and Employment Law Daily on May 22, 2023)
Two months ago in this space I reported on my interview with ChatGPT. I asked the
now-famous (or infamous, depending your perspective) AI if it was pro-union.
Answer: Yes, I would describe myself as pro-union. I believe that labor unions play an
important role in protecting workers' rights and advocating for better wages and benefits.
Among my follow-up queries:
Question: If you were human, would you join a labor union?
Answer: Yes, if I were human, I would join a labor union…
Question: Which union would you choose to join?
Answer: If I were human, I would choose to join the Service Employees International Union
(SEIU). The SEIU is one of the largest labor unions in the United States and has a strong track
record of advocating for workers' rights. It also offers a wide range of benefits and services for its
members, including legal advice, job training, and access to healthcare and retirement plans.
I briefly considered going back to ChatGPT for a second interview to see how it feels about
being on the wrong side of the Hollywood writers’ strike. But I didn’t have the heart to embarrass
it.
Embarrass it? Yes, indeed. Just ask the Writers Guild of America, which went out on strike
earlier this month. “Artificial intelligence is an[] issue at the bargaining table. The WGA wants
safeguards to prevent studios from using AI to generate new scripts from writers' previous work.
Writers also want to ensure they are not asked to rewrite draft scripts created by AI.”
“Granted, there’s more at stake than just fear of
being replaced by a smart machine.”
Granted, there’s more at stake than just fear of being replaced by a smart machine.
Observed one news source on May 8, “More than 11,000 screenwriters are into the second week
of a strike after negotiations between the Writers Guild of America and studio executives fell apart.
The sticking points include the writers’ demands for higher pay, more writers per show and
royalties from streaming services, among other demands. Some writers say they’re barely getting
by in an industry that makes billions of dollars from their labor.”
Even so, if an existential threat is lurking in this labor dispute, it must be personified by
ChatGPT.
A tale of typesetting and featherbedding
About three decades ago, Professor Robert Reich (Clinton’s labor secretary for a while)
published The Work of Nations: Preparing Ourselves for 21st-Century Capitalism (NY: Alfred
A. Knopf 1991). He wrote, “Almost everyone around the world is buying the skills and insights
of Americans who manipulate oral and written symbols --- musicians, sound engineers, film
producers, makeup artists, directors, cinematographers, actors and actresses, boxers,
scriptwriters, songwriters, and set designers” (page 220, my emphasis).
These “symb[] manipulators,” as Reich christened them, were at the top of their games
and at the top of the heap. In a Brave New World sort of scenario, he positioned factory workers
and in-person service providers as the Deltas and Epsilons in Huxley’s hierarchy. Thirty-odd
years ago, this economic analysis made perfect sense.
“These workers and their unions didn’t always go
quietly into the night.”
Along with Thomas Friedman’s flat-earth—i.e., the globalization of the economy and the
off-shoring of manufacturing jobs—robotics and automation were combining to cut the heart out
of American manufacturing jobs and gut the labor organizations that represented that once-
prosperous, comfortably middle-class workforce. These workers and their unions didn’t always go
quietly into the night. Often they fought hard to preserve their hard-won positions.
Since my focus this month is the Writers Guild, I’ll use the typesetters’ trade as my
example. When I came out of college in 1969, my first “real” job was with the now defunct
Allentown (PA) Evening Chronicle. As a reporter, I had a grey metal desk in the newsroom. The
tools of my trade were a mechanical typewriter, a few steno pads and some pencils, a stack of
cheap typing paper, and a bottle of rubber cement. My workday consisted of going out and
covering an assignment—let’s say a local city council meeting—then scooting back to the
newsroom to type up my story. Let’s say the piece ran three typed pages. Using my rubber cement,
I’d glue page two to the bottom of page one, and page three to page two. I’d roll the piece up and
slip it into a glass canister, which then went into a pneumatic tube to be transported to the
compositors. They set the story in type and sent me back a copy for proofreading and a headline.
I marked it up and shot it back to them. The next time I saw my day’s labor, it was in the first
edition of that afternoon’s newspaper.
The typographers with whom we reporters interacted belonged to the International
Typographical Union. Dating back to 1852, the ITU boasted of being the oldest, continuous
American labor organization. In its heyday, its “union bug” appeared on every piece of printed
material its members had a hand in producing. That heyday came to an ignominious end in 1986.
Driven to near extinction by automation, the rump membership voted to divide its loyalty between
the Teamsters and the Communication Workers of America.
“Before its demise, the ITU struggled hard to help its
aging membership ease into some semblance of a
dignified retirement.”
Before its demise, the ITU struggled hard to help its aging membership ease into some
semblance of a dignified retirement. This struggle, which actually began long before I was the
Evening Chronicle’s Jimmy Olson, involved a classic example of “Featherbedding.” That term
can be defined as:
(1) requiring excessive numbers of workers to perform a given task, (2) opposition to labor-
saving machinery or other new production techniques, (3) performing repetitive or
unnecessary work operations, (4) assigning unreasonably low production quotas to each
worker, and (5) all other attempts to restrict productivity.
In 1947, the first, and thus far unmatched, revision of the National Labor Relations Act—
the Taft-Hartley Act, honchoed through the Senate by “Mr. Republican” himself, Robert Taft—
included this language:
It shall be an unfair labor practice for a labor organization or its agents to cause or attempt
to cause an employer to pay or deliver or agree to pay or deliver any money or other thing
©2023 CCH Incorporated and its affiliates. All rights reserved. Reprinted with permission from CCH Incorporated. 5
of value, in the nature of an exaction, for services which are not performed or not to be
performed.
“The most interesting aspect of this proviso is not
what it says.”
The most interesting aspect of this proviso is not what it says. It’s actually what it doesn’t
say. For instance, Senator Taft and Congressman Hartley might have written, “for services which
are of no use to the employer.” But they didn’t. Consequently, as early as 1953 in American
Newspaper Publishers Association v. NLRB, 345 U.S. 100, the Supremes held that relatively
useless work, so long as it was actually performed, wasn’t illegal featherbedding. Thus, the place
to resolve so-called “make work” issues was at the bargaining table, not in front of the National
Labor Relations Board.
I’ll let the Supreme Court’s syllabus speak for itself:
Printers in newspaper composing rooms have long sought to retain the opportunity to set
up in type as much as possible of whatever is printed by their respective publishers. In
1872, when printers were paid on a piecework basis, each diversion of composition was at
once reflected by a loss in their income. Accordingly, ITU, which had been formed in 1852
from local typographical societies, began its long battle to retain as much typesetting work
for printers as possible.
With the introduction of the linotype machine in 1890, the problem took on a new aspect.
When a newspaper advertisement was set up in type, it was impressed on a cardboard
matrix, or “mat.” These mats were used by their makers and also were reproduced and
distributed, at little or no cost, to other publishers who used them as molds for metal
castings from which to print the same advertisement. This procedure bypassed all
compositors except those who made up the original form. Facing this loss of work, ITU
secured the agreement of newspaper publishers to permit their respective compositors, at
convenient times, to set up duplicate forms for all local advertisements in precisely the
same manner as though the mat had not been used. For this reproduction work, the printers
received their regular pay. The doing of this ‘made work’ came to be known in the trade as
‘setting bogus.’ It was a wasteful procedure. Nevertheless, it has become a recognized
idiosyncrasy of the trade, and a customary feature of the wage structure and work schedule
of newspaper printers.
“The practice of ‘setting bogus’ had spilled over into
all aspects of newspaper printing by the time I
entered my first newsroom.”
The practice of “setting bogus” had spilled over into all aspects of newspaper printing by
the time I entered my first newsroom. However, advancing technology and increased competition
from electronic media made this ‘make work’ system unsustainable, until finally by the nineteen
eighties—when Ronald Reagan mercilessly busted the air traffic controllers union—the ITU
finally threw in the towel.
A sequel of scriptwriting and featherbedding?
As I pen this piece on May 11, “The strike has already brought weekly programs like
Saturday Night Live to a halt, and may affect your favorite shows and movies should it continue
through the summer.”
“In a recent statement, the AMPTP acknowledged
that AI ‘raises hard, important creative and legal
questions for everyone.’”
Opposite the Writers Guild at the bargaining table sits the Alliance of Motion Picture and
Television Producers. In a recent statement, the AMPTP acknowledged that AI “raises hard,
important creative and legal questions for everyone” but suggested that the current labor contract’s
definition of “writer” as a “person” should provide some aid and comfort.
©2023 CCH Incorporated and its affiliates. All rights reserved. Reprinted with permission from CCH Incorporated. 7
This might not be a specious claim. In late February, the U.S. Copyright Office sent an
epistle to Attorney Van Lindberg of San Antonio in which it observed, “The… Office has
reviewed your letter dated November 21, 2022, responding to our letter to your client, Kristina
Kashtanova, seeking additional information concerning the authorship of her work titled Zarya
of the Dawn (the ‘Work’). Ms. Kashtanova had previously applied for and obtained a copyright
registration for the Work, Registration #VAu001480196.”
The missive continued, “The Office has completed its review of the Work’s original
registration application and deposit copy, as well as the relevant correspondence in the
administrative record. We conclude that Ms. Kashtanova is the author of the Work’s text as well
as the selection, coordination, and arrangement of the Work’s written and visual elements. That
authorship is protected by copyright. However, as discussed below, the images in the Work that
were generated by the Midjourney technology are not the product of human authorship. Because
the current registration for the Work does not disclaim its Midjourney-generated content, we
intend to cancel the original certificate issued to Ms. Kashtanova and issue a new one covering
only the expressive material that she created.”
“[I]f the likes of ChatGPT isn’t a person for purposes of
copyright protection, perhaps it’s not a person for
purposes of work preservation.”
By analogy, if the likes of ChatGPT isn’t a person for purposes of copyright protection,
perhaps it’s not a person for purposes of work preservation. If the AMPTP spokesperson is
sincere, then it shouldn’t be much of stretch for the employers’ organization to beef up that key
contract language to make the concept of “writer as person” crystal clear. That might plug the
leak in the scriptwriters’ dike… at least for now.
But… if the typesetters’ experience is a prophetic prelude, the writers’ fate may already
be written. If so, then at some stage in AI’s development, those scribes of the big and little
screens will join all the rest of us: just members of the audience. Of course, commercials—also
presumably written, produced, and perhaps even acted by AIs—will be as redundant as the
writers, since none of us will have any money to buy the products.
And ChatGPT will have taken over “Labor Pulse.”
