AI Can\u27t Adlib: Theorizing an Improvisation Carveout in the Work for Hire Doctrine

Abstract

AI-generated actors and digital replicas are an increasingly pressing concern in the filmmaking industry. While this technology is only one of the myriad ways that generative AI is set to change Hollywood, debates about its use reflect a throughline in debates about AI generally: Can this technology do a convincing, much less desirable, job of what humans have done before? This Article argues that, at least in one particular context, the answer is no. It focuses on the art of adlibbing. It explains the unique position of improvisation within copyright law and proposes one mechanism—a carveout in the work for hire doctrine—that might elevate it, allowing human actors to be better rewarded for making these contributions. It also explains why such a carveout matters, not only through the lens of a particular case study but also against the broader backdrop of technological change in the filmmaking industry. In doing so, it seeks to do two things: (1) articulate the unique value of human creativity in this context and (2) give the human creators behind these contributions the leverage to secure more robust economic and intellectual property benefits in the AI era