An AI-synthesized bop went viral recently when Drake and The Weeknd seemingly collaborated to sing “Heart On My Sleeve.” In response to the track taking the internet by storm, music industry giant Universal Music Group (“UMG”) sent urgent letters to streaming platforms, including Spotify and Apple Music, asking them to block AI companies from collecting melodies and lyrics from copyrighted songs to create new AI-generated songs, citing a “moral and commercial responsibility” to prevent unauthorized use of artists’ voices. [1]
Artificial intelligence, specifically AI music, learns by either training on existing works on the internet or through a library of music given to the AI by humans. UMG states that it is not against the technology itself, but rather AI that is so advanced that it can recreate melodies and even music artists’ voices in seconds, which could threaten UMG’s deep library of music and artists that generate billions of dollars in revenue.
A spokesperson for UMG, brought this issue to the fore, noting, “[this] begs the question as to which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deepfakes, fraud and denying their due compensation… These instances demonstrate why platforms have a fundamental legal and ethical responsibility to prevent the use of their services in ways that harm artists.” [2]
Copyright Law and AI
Copyright law is the primary tool for artists to legally protect their creative works, including music composition, sound recording, synchronization, mechanical, performance, print, and digital rights as well as rights to the masters, usually owned by the studios where the original audio was recorded. While the web of rights involved in the music industry is somewhat complicated, for purposes of discussing the role of artificial intelligence (AI) in the music industry, it is sufficient to say that copyright law grants exclusive rights to the artists and related parties, who hold these various copyrights, enabling them to control their works’ reproduction, distribution, and public performance. Importantly, however, copyright law predominantly focuses on protecting the tangible expression of the ideas, i.e., the compositions, rather than the underlying ideas themselves.
Under the U.S. Copyright Act, works may be registered for copyright protection if they are “original works of authorship fixed in any tangible medium of expression.” The Supreme Court has explained that an “original” work must (1) be independently created by an author and (2) possess a minimal degree of creativity. [3] Courts consistently interpret the phrase “works of authorship” as being limited to works of human authorship. [4] Thus, the U.S. Copyright Office will not register a claim if it determines that a human being did not create the work. In cases where mixed human and non-human authorship is claimed, copyright protection is available only for the human-authored selection and arrangement of the elements of the work.
In a policy statement issued on March 16, 2023, the copyright office stated “When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.” [5]
A vocal performance, characterized by the artist’s distinct tone, style, and delivery of their music, once fixed in a tangible medium, can be considered a fixed expression. When music artists record a song, their vocal performance is typically captured onto a fixed medium, such as a digital audio file (often called the “master”). In this context, copyright law protects this “Master,” which is the tangible fixation of the artist’s voice as an original work of authorship.
With the rapid development of AI technology, sophisticated voice synthesis systems have arisen that can mimic human voices with stunning accuracy, including the tone, style, and delivery. These systems use deep learning algorithms that closely resemble specific individuals’ vocal patterns, timbre, and nuances. The deep learning algorithms draw from the existing copyright-protected content of the various artists which the AI ultimately imitates. Not surprisingly, many music artists and recording companies are concerned.
UMG says that AI that uses artists’ music violates UMG’s agreements and copyright law. As a result, the company has sent requests to streamers asking them to take down AI-generated songs.
Music artists may also consider relying on the right of publicity, which safeguards their identity and voice as distinctive aspects of their persona. This right generally grants individuals the exclusive authority to control the commercial use of their name, likeness, and voice. Whether the right of publicity of AI-generated voice replication can fully protect artists remains to be seen.
Finally, while it is not a generally recognized legal right in the United States, many foreign countries also recognize a “droit moral” or moral right, While more prominent in some countries than others, moral rights relate to the personal and reputational, rather than purely economic, connection an artist has with their work. This may include the right to attribution, and the right to object to derogatory treatment of one’s work which might be prejudicial to the artist’s honor or reputation.
Guidance Moving Forward
Perhaps to artists’ comfort, as noted above, the US Copyright Office released new guidelines in March 2023 regarding AI art, stating that copyright protection depends on whether AI’s contributions are “the result of mechanical reproduction,” such as in response to text prompts, or if they reflect the author’s “own mental conception.” [6] To that end, “The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work,” the office said. [7]
While copyright law offers some level of protection to music artists’ voices, the rapid progression of AI technology presents some exciting challenges that both law and technology will have to confront. AI-generated voice replication blurs the lines between original creations and imitations while testing the boundaries of copyright law. As AI continues to evolve, it will be interesting to see how the law and policy evolve to match it.
[1] https://techcrunch.com/2023/04/26/grimes-ai-generated-drake-music-legal-issues/#:~:text=The%20representative%20said%20that%20the,denying%20artists%20their%20due%20compensation.%E2%80%9D
[2] Id.
[3] Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340 (1991).
[4] See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884); Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997); Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018); Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011).
[5] 88 Fed. Reg. 16,190 (Mar. 16, 2023).
[6] Id.
[7] Id.
[View source.]
