Social media launched a revolution with respect to how we interact with music and the arts. As technology continues to advance and permeate our lives, the law and business of, not only music, but of entertainment generally will continue to evolve. Today, the advent of artificial intelligence ("AI") will have profound changes in entertainment both positive and negative. Not only are social media platforms encouraging us to "live" our daily lives inside of their augmented reality and existence, as opposed to the "real world" as we currently know it, but technology is now influencing how music is created. Imagine a world where computers create music with the push of a button. Today, technological advances in AI have become a powerful song composition tool that threaten to replace composers, songwriters, musicians, and singers. Once a far-fetched possibility, AI has arrived to much fanfare and excitement and, with it, comes new challenges in an already difficult and evolving music business. AI is now able to create tracks using an artist's actual voice, which raises several serious issues both from a legal and privacy perspective.
Recently, an AI generated verse in the "style" of artist Kanye West began to circulate and eventually went viral on social media after it was posted on Twitter. "All you have to do is record reference vocals and replace them with a trained model of any musician you like," AI expert Roberto Nickson explained. "I found this Kanye-style beat on YouTube, I wrote eight bars, I'm gonna record them now and then I'm gonna have AI Kanye replace me." The result is surprising because most listeners will not be able to discern the difference between the actual Kanye West track and the AI generated track. You can listen to the track here.
As the use of AI technology proliferates and is adopted by production companies, film producers, and other entertainment professionals, both the music industry and the various laws that govern music, copyright, and related laws will need to adapt to the new AI revolution. The U.S. Copyright Office (the "Copyright Office") has already acknowledged the new issues and challenges that have emerged as a result of AI; however, it is unclear at this point what changes, if any, will be made with respect to copyright law and related laws. Nonetheless, it is important to be extremely mindful of the intersection of the use of AI technology and potential copyright infringement or invasion of an artist's right of privacy and publicity when using AI to create music. Record labels have taken an aggressive stance against the use of their artists' vocals and voice in the creation of AI generated music.
How AI Is Changing the Music Industry
The music industry has already incorporated AI in a variety of ways. According to research firm Water & Music's 2023 report on the use of creative AI in the music industry, "over 10 different music AI models have been released by independent researchers and big-tech companies like Google and ByteDance, hundreds of thousands of AI-generated songs are now listed on streaming services and generative AI tools for audio, text, and visual art have picked up tens of millions of users." The AI revolution, like it or not, is here to stay and will continue to insert itself into the fabric of music. Critics of the use of AI in music note that the resulting music lacks soul, creativity, and originality, while proponents of the technology argue that AI will make music available to smaller scale productions and shows that may otherwise not be able to afford to license the use popular music in productions and projects. Others note that it is sometimes difficult to work with artists, some of whom do not show up for recording sessions or are generally "difficult" to work with. Whatever your view, the reality is that AI is here to stay.
Many uses of AI in the music industry are uncontroversial. When it comes to music production, AI technology may help streamline the process by suggesting changes in attempts improve sound quality or automating the mixing and mastering process. Other platforms, such as Audible Magic, use AI to identify instances of copyright infringement on social media, streaming services, and other online platforms.
However, a thriving subset of AI technology known as ''generative AI," is less widely accepted and much more controversial. These technologies, which include ChatGPT, Google's MusicLM, and BandLab's SongStarter, use databases of preexisting human-authored works and use inferences from those pre-existing works to "train" the technology to generate "new" content. In some instances, users can influence the type of music that is created by providing text instructions or "prompts."
Generative AI is groundbreaking in that it allows content creators to generate unique musical compositions without the need for musical experience or expensive equipment. In 2021, a project known the Lost Tapes of the 27 Club made headlines when the project used AI to create "new" tracks by artists who lost their lives to suicide at the age of 27, including Kurt Cobain, Jim Morrison, Jimi Hendrix, and Amy Winehouse. As described by Rolling Stone: "Each track is the result of AI programs analyzing up to 30 songs by each artist and granularly studying the tracks' vocal melodies, chord changes, guitar riffs and solos, drum patterns, and lyrics to guess what their 'new' compositions would sound like."
While some would argue that there are some benefits to generative AI, many others denounce the technology and resulting music as "cheating." The criticisms are not unfounded as AI technology is threatening, and will continue, to threaten both the livelihood and opportunities that are available to working musicians, producers, songwriters, and others involved in the music-making process. Musicians argue that AI generated music lacks soul, but, in many instances, production companies do, in some cases, place a premium on value, cost, speed, and the overall experience of the process of acquiring or developing music for projects. In that case, AI generated tracks may present those companies with another option.
Applying Existing Copyright Law to New Technology
In addition to a range of serious ethical and privacy concerns, AI poses its own unique legal challenges. For instance, the complex and often arcane copyright laws that govern today's music industry are already struggling to keep up with advances in technology such as digital streaming. As for AI, it is unclear who is responsible for documenting and tracking the use of the copyrighted content that is incorporated into the AI generated music, which presents a serious problem. It is likely that, as the use of AI proliferates, that the current performing rights organizations (or "PROs") will address the issue and revise their practices to account for such use, assuming such use does not violate copyright and other laws.
Protecting AI generated content is also a novel and pressing issue. Under the Copyright Act, a work may be registered if it qualifies as an "original work[] of authorship fixed in any tangible medium of expression." To date, courts interpreting the phrase "works of authorship" have uniformly limited the concept to the creations of human authors, not computers or AI generated content. Similarly, the Compendium of U.S. Copyright Office Practices (Third Edition), which provides standards for examining and registering copyrighted works, provides that the U.S. Copyright Office (Office) "will refuse to register a claim if it determines that a human being did not create the work." These interpretations and rules will certainly change as the use of AI grows.
Lessons from Zarya of the Dawn
On February 21, 2023, the U.S. Copyright Office issued a letter that limited the copyright registration for the graphic novel Zarya of the Dawn, which artist Kristina Kashtanova created in part by using the AI technology platform Midjourney. Midjourney generates images in response to text and other instructions provided by a user. The court's decision highlights the Copyright Office's current approach to registering works that include AI-generated content.
In its assessment of the situation, the Copyright Office determined that the AI generated used in the novel were not eligible for copyright registration because they were not the product or result of human authorship. While the Office acknowledged that Kashtanova may have "guided" the structure and content of each image, it ultimately concluded that Midjourney, not Kashtanova, originated the "traditional elements of authorship" in the images. The Copyright Office explained that "A person who provides text prompts to Midjourney does not "actually form" the generated images and is not the "master mind" behind them. Instead..., Midjourney begins the image generation process with a field of visual "noise," which is refined based on tokens created from user prompts that relate to Midjourney's training database. The information in the prompt may "influence" generated image, but prompt text does not dictate a specific result."
The Copyright Office explained that the selection and arrangement of the images in the novel were copyrightable. "Specifically, the Office finds the Work is the product of creative choices with respect to the selection of the images that make up the Work and the placement and arrangement of the images and text on each of the Work's pages," the Copyright Office wrote. "Copyright therefore protects Ms. Kashtanova's authorship of the overall selection, coordination, and arrangement of the text and visual elements that make up the Work."
In its letter, the Copyright Office made clear that its findings were limited to the work in question and did apply not all works created using AI technology. "The Office's determination here is based on the specific facts provided about Ms. Kashtanova's use of Midjourney to create the Work's images," it wrote. "It is possible that other AI offerings that can generate expressive material operate differently than Midjourney does." Clearly, copyright policies are changing and having to adapt to the new AI technology.
Copyright Office Is Exploring AI Issues
While the Copyright Office is bound by legal precedent and current practices in addressing works involving AI technology, changes are likely on the horizon. The Copyright Office has already launched an initiative to examine the copyright law and policy issues raised by the use of AI technology, including the scope of copyright protection afforded to works generated using AI tools and the use of copyrighted materials in AI generated music that incorporates pre-existing copyrighted material. The Copyright Office will hold a listening session dedicated exclusively to music and sound recordings on May 31, 2023. Information about participating in the listening session can be found here.
On March 16, 2023, the Copyright Office published a statement of policy addressing AI, entitled, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, which clarifies its practices for examining and registering works that contain material generated by the use of AI technology. The Copyright Office's guidance focuses, largely, on how the Office applies copyright law's "human authorship" requirement to applications to register AI generated works.
The policy statement advises that when considering works containing AI generated material, the Copyright Office will focus on whether the AI contributions to the music the result of ''mechanical reproduction'' are or instead the result of an author's ''own original mental conception, to which [the author] gave visible form.'' As the Copyright Office notes, , the answer will depend on the specific facts and circumstances of each case particularly with respect to what role the AI technology had in creating the new and final work.
Pursuant to the new guidance, it is clear that - the greater the human involvement - the greater the likelihood of copyright protection. As the Copyright Office explained, in instances where AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ''traditional elements of authorship'' are determined and executed by the technology-not the human user. However, a work containing AI-generated material may contain sufficient human authorship to support a copyright claim when a human selects or arranges AI-generated material in a sufficiently creative way that ''the resulting work as a whole constitutes an original work of authorship.'' In other cases, an artist may modify original material generated by AI to such degree that the modifications may meet the originality standard of copyright law necessary for copyright protection.
Notably, the Copyright Office's Statement of Policy states that copyright applicants have a duty to disclose the inclusion of AI generated content in a work submitted for registration, as well as to provide a brief and concise explanation of the human author's contributions to the newly created work. The guidance further advises that AI generated content that is more than de minimis should be explicitly excluded from the application.
Be Proactive in Monitoring the Copyright Implications of AI
Given the rapid pace of technological and legal developments, we encourage individuals and businesses in the music industry to stay on top of legal developments. Scarinci Hollenbeck's Copyright Group actively works with individuals and businesses of all sizes to pursue, secure, and monetize copyrights. In doing so, we routinely counsel clients on how emerging issues may impact their interests, working to both overcome challenges and capitalize on opportunities.
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