Contractual guidelines in relation to AI

February 27 2024

What should performers pay attention to in their contracts with producers in order to mitigate the negative effects of the recent technological developments in the field of artificial intelligence (AI)?

  • Generally speaking, performers should be wary of vague contractual clauses that could extend to unknown forms of use, including those involving AI, and if possible delete such provisions or define more precisely the purpose of the use for which the contract is drawn up.

    In any event, the contract should precisely define the intended use of the performances, using precise (legal) terms and concepts: reproduction right, right of communication to the public (including the right of making available to the public), synchronisation right. Similarly, authorisations relating to personal and personality rights (use of voice, images, personal characteristics, etc.) and their purpose should be precisely defined according to the objective for which they are granted. In this respect, it is recommended that authorisation be limited to the performer’s identifying characteristics (name, pseudonym, artist’s name, image and portraits) solely in connection with the marketing and promotion of (reproductions of) the performer’s recordings and their exploitation. In this way, if a performance or characteristics are exploited beyond what has been agreed, the performer would be entitled to demand additional payments. In this case, it is advisable to use a document separate from the original contract. In addition, unwanted uses (e.g. “deepfakes”) could undoubtedly be prohibited.
  • The object and scope of the contract must therefore be strictly defined, clearly indicating the envisaged forms of exploitation, who will carry them out (the producer or any party he authorises?), precisely which performances (pre-existing or future), and/or which of the performer’s personal or personality rights (voice, image, portrait or any other characteristic of the performer) that would be used individually or in combination with the recorded performances, whether or not a transformation is envisaged, and if so, to what extent, whether or not they would be used in a machine learning process or in any other process involving AI, and/or on other platforms or media using AI technology. The authorisation would also need to clearly specify details related to duration, territory and appropriate remuneration relating thereto.

  • In this context, Article XI.205, §3 CEL must be taken into account. This provision states in particular that:
    • For each form of exploitation, the remuneration of the performer and the scope and duration of the assignment or licence must be expressly determined.Notwithstanding any provision to the contrary, the assignment of rights or the granting of a licence concerning as yet unknown forms of exploitation is null and void.
    • The assignment or licence of economic rights relating to future performances is valid only for a limited time and provided that the types of performance to which the assignment or licence relates are specified.

  • An opt-out option should be provided in relation to the exception relating to text and data mining (TDM) to prevent the performances covered by the contract from being sampled and/or used to train artificial intelligence algorithms (in the context of machine learning).

  • It would also be possible to include a specific contractual clause requiring the prior authorisation of the performer for any new use, including any transformation, of any pre-existing or future performance and/or of the performer’s personal and personality rights, by the producer or any party authorised by him, including for use in AI systems or other platforms or media using AI technology, on pain of prohibition of use or penalty. This specific authorisation must be obtained in writing and must define precisely the possible uses of the performances, personal data, voice, image, portrait and any other characteristics of the performer that would be used individually or in combination with the recorded performances in a machine learning process or in any other process involving AI. The specific authorisation must also clearly specify the details relating to the duration, territory and extent of the use and, in particular, the appropriate additional remuneration relating thereto.

  • It would also be useful to specify in an additional contractual clause that no new performance recorded without human intervention by the performer may be published or communicated to the public, and that all recordings covered by the contract must contain recorded performances directly performed by the performer.

  • If the performer agrees to the circulation of new recordings without human intervention, the method of calculation and the rate of royalties must be indicated and the performances without human intervention must be mentioned as such. The use of performers’ rights via an AI has an economic value that must be reflected in the contract. In this case, it is advisable to use a document separate from the original contract.

  • In certain cases, it would be interesting to put in place a mechanism for updating the contract by mutual agreement, which would make it possible to take account of technological developments in artificial intelligence and/or related uses that had not previously been envisaged, and their implications for the performer’s rights.

  • It is also relevant to include an obligation of transparency in the contract, at least in line with the requirements of Article XI.205/2 of the CEL – i.e. an obligation to provide, at least once a year, up-to-date, relevant and complete information on the exploitation of the performances, particularly with regard to the forms of exploitation, all the revenue generated and the remuneration due.

  • Performers may not waive globally the future exercise of their inalienable moral rights in their performance. Any clause to this effect would be null and void. In any event, the performer retains the right to oppose any distortion, mutilation or other modification of his or her performance or any other damage that is prejudicial to his or her honour or reputation (article XI.204 CEL). An additional clause may be included but is not necessary.

  • Where possible, the applicable law should be Belgian law or, failing that, the national law of a Member State of the European Union, and the competent courts should be Belgian courts or, failing that, the courts of a Member State of the European Union.

Example of a standard contractual clause excluding the use of AI

In light of the above, the following is an example of a standard clause aiming at excluding the use of AI. This clause is for illustrative purposes only and may not be relevant in all circumstances relating to contracts entered into by performers, including when such contracts are not subject to Belgian law. PlayRight therefore disclaims any liability whatsoever in relation thereto and recommends, where appropriate, that this clause be adapted to the situation in which it applies, preferably with the assistance of a specialised lawyer or attorney.

Example of an opt-out clause concerning both the performances and the personality rights

“The recorded performances that are the subject of this contract, as well as the performer’s personal or personality rights, including, but not limited to, the performer’s voice, image, portrait or any other characteristic of the performer, either individually or in combination with the recorded performances that are the subject of this contract, whether as is or after any transformation whatsoever, may not be reproduced, communicated to the public, published, sampled and/or otherwise used in any way whatsoever for the purpose of training artificial intelligence technologies to generate images, videos and/or sounds, or for the evaluation and validation of models generated by artificial intelligence or computers, including but not limited to technologies capable of generating performances in the same style or genre as the recorded performances, and/or in any other process involving artificial intelligence, including current technologies such as machine learning models, neural networks and deep learning algorithms, as well as any other future technological developments that may facilitate the creation, modification or synthesis of the performer’s recorded performances or characteristics, including but not limited to generating new performances, images, videos and/or sounds without human intervention of the performer.”

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