“Barron's deputy editor Ben Levisohn, reporter Carleton English and associate editor Jack Hough discuss the impact of artificial intelligence on the music industry on 'Barron's Roundtable.'”

Why this is important: This roundtable discusses the widespread issues facing the music industry with the rise of AI generated works ranging from Paul McCartney’s use of AI to incorporate John Lennon’s real voice into newly released Beatles’ songs to the full mimicry of popular artists, such as Drake and The Weeknd. The use of AI to generate music raises monumental questions regarding the copyright implications, the most basic of which is: who owns the copyright? In recent formal guidance, the Copyright Office confirmed its position that AI generated works made without human intervention are not copyrightable, but also clarified that they may become copyrightable if there is sufficient human involvement and authorship in the end product. 

The broader and more nuanced question is: what rights can artists enforce against AI generated music mimicking their voices? As recently discussed with Harvard Law Today, IP expert Louis Tompros explains that this issue is both complex and unresolved. The process of AI training necessarily includes the copying of an artist’s music to create a derivative work and, thus, could amount to copyright infringement. However, creating music in the style of another artist is not considered infringing activity and could be protected by fair use doctrine stemming from First Amendment rights. Additionally, and most basically, AI generated songs are new songs, so there is no direct copying in these cases.

Tompros further explains that rights of publicity provide a clearer route to remedy in these circumstances. Under Ninth Circuit precedent, the intentional imitation of a distinctive professional singer’s voice for commercial purposes is a violation of the right of publicity under California law. The downside to these claims, however, is that state courts work much slower than federal copyright takedowns, allowing the infringing work to remain available for months or years.

All in all, both state and federal courts should see a rise in copyright and publicity infringement claimants in the coming years, which should provide more case law and clarity in conjunction with the Copyright Office’s formal guidance on the issue of AI. --- Shane P. Riley