#copyright

(A.I.) Drake, The Weeknd, and the Future of Music

/ Washington Journal of Law, Technology & Arts / 1 Comment

By: Melissa Torres

A new song titled “Heart on My Sleeve” went viral this month before being taken down by streaming services. The song racked up 600,000 Spotify streams, 275,000 YouTube views, and 15 million TikTok views in the two weeks it was available. 

Created by an anonymous TikTok user, @ghostwriter977, the song uses generative AI to mimic the voices of Drake and The Weeknd. The song also featured a signature tagline from music producer Metro Boomin. 

Generative AI is a technology that is gaining popularity because of its ability to generate realistic images, audio and text. However, concerns have been raised about its potential negative implications, particularly in the music industry, because of its impact on artists. 

Universal Music Group (UMG) caught wind of the song and had the original version removed from platforms due to copyright infringement. 

UMG, the label representing these artists, claims that the Metro Boomin producer tag at the beginning of the song is an unauthorized sample. YouTube spokesperson Jack Malon says, “We removed the video after receiving a valid copyright notification for a sample included in the video. Whether or not the video was generated using artificial intelligence does not impact our legal responsibility to provide a pathway for rights holders to remove content that allegedly infringes their copyrighted expression.”

While UMG was able to remove the song based on an unauthorized sample of the producer tagline, it still leaves the legal question surrounding the use of voices generated by AI unanswered. 

In “Heart on My Sleeve”, it is unclear exactly which elements of the song were created by the TikTok user. While the lyrics, instrumental beat, and melody may have been created by the individual, the vocals were created by AI. This creates a legal issue as the vocals sound like they’re from Drake and The Weeknd, but are not actually a direct copy of anything. 

These issues may be addressed by the courts for the first time, as initial lawsuits involving these technologies have been filed. In January, Andersen et. al. filed a class-action lawsuit raising copyright infringement claims. In the complaint, they assert that the defendants directly infringed the plaintiffs’ copyrights by using the plaintiffs’ works to train the models and by creating unauthorized derivative works and reproductions of the plaintiffs’ work in connection with the images generated using these tools.

While music labels argue that a license is required because the AI’s output is based on preexisting musical works, proponents for AI maintain that using such data falls under the fair use exception in copyright law. Under the four factors of fair use, advocates for AI claim the resulting works are transformative, meaning they do not create substantially similar works and have no impact on the market for the original musical work.

As of now, there are no regulations regarding what training data AI can and cannot use. Last March, the US Copyright Office released new guidance on how to register literary, musical, and artistic works made with AI. The new guidance states that copyright will be determined on a case-by-case basis based on how the AI tool operates and how it was used to create the final piece or work. 

In further attempts to protect artists, UMG urged all streaming services to block access from AI services that might be using the music on their platforms to train their algorithms. UMG claims that “the training of generative AI using our artists’ music…represents both a breach of our agreements and a violation of copyright law… as well as the availability of infringing content created with generative AI on DSPs…” 

Moreover, the Entertainment Industry Coalition announced the Human Artistry Campaign, in hopes to ensure AI technologies are developed and used in ways that support, rather than replace, human culture and artistry. Along with the campaign, the group outlined principles advocating AI best practices, emphasizing respect for artists, their work, and their personas; transparency; and adherence to existing law including copyright and intellectual property. 

Regardless, numerous AI-generated covers have gone viral on social media including Beyoncé’s “Cuff It” featuring Rihanna’s vocals and the Plain White T’s’ “Hey There Delilah” featuring Kanye West’s vocals. More recently, the musician Grimes recently shared her support toward AI-generated music, tweeting that she would split 50% royalties on any successful AI-generated song that uses her voice. “Feel free to use my voice without penalty,” she tweeted, “I think it’s cool to be fused [with] a machine and I like the idea of open sourcing all art and killing copyright.”

As UMG states, it “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 deep fakes, fraud and denying artists their due compensation.”

While the music industry and lawyers scramble to address concerns presented by generative AI, it is clear that “this is just the beginning” as @ghostwriter977 ominously noted under the original TikTok posting of the song. 

Copyright Law (Taylor’s Version)

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Photo by Barthy Bonhomme on Pexels.com

By: Melissa Torres

Are you ready for it? Taylor Swift is reportedly set to kick off 2023 with the release of a new album, Speak Now (Taylor’s Version). Despite just releasing the fastest-selling album of 2022, Midnights, fans have been speculating about which one of her early albums she’ll rerecord next for quite awhile. Reports state, “Taylor has quietly been in the studio working on remaking both Speak Now and 1989. All details are still being ironed out but Speak Now (Taylor’s Version) should be out within the next couple of months, before she kicks off her Eras world tour.” 

But why is Taylor Swift rerecording old albums?  

While it may seem obvious to the general public that the writer, composer, and performer of a song would then own the recording of the song, the music industry functions on a different set of rules formed by contracts and copyrights. When a new artist signs with a record label, they form a contract which specifies the intellectual property rights of the works created. 

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. Common types of work include photographs, illustrations, books, and music. These works are fixed when they are captured in a “sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.” U.S. copyright law provides copyright owners with a list of exclusive rights and also provides owners of copyright the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations. 

Typically, in the music industry, copyrights are divided between the musical composition of a song and its sound recording. The musical composition refers to the lyrics of a song, the music itself, or both. The sound recording, also known as the master, is the recorded performance of the song. As a result, more often than not, an artist’s record label owns the master of a song.  

In Swift’s case, she signed with record label Big Machine Records in 2005 and formed a contract in which one of the stipulations was that Big Machine would own the rights to the sound records in perpetuity. After the deal ended in 2018, Swift moved on and signed to a different label. Her recordings made over the 13 years stayed with Big Machine, and the label sold the rights to them for $300 million to Scooter Bruan in 2019. Swift alleges she was never given the opportunity to purchase these rights. Despite writing and performing over 82 songs, she has no rights to those records and receives no payment anytime they are played. Therefore, the singer embarked on a mission to rerecord her first six records in order to own both the musical composition and master of the new recordings. 

Because Swift has written every single song released in those six albums and therefore owns the musical composition copyright, she retains the “sync rights” of her music. A synchronization license is needed for a song to be reproduced onto a television program, film, video, commercial, radio, or even a phone message. Permission from the owner of the master use license, typically the record company, also needs to be obtained if a specific recorded version of a composition is used for such a purpose. As a result, everytime these songs are used for commercial purposes, the owner of the masters earns a profit. 

By rerecording versions of her old hits, Swift will now hold the master and composition rights of these songs. To be clear, the original masters of these songs still exist, but by encouraging fans to stream the newer recorded version, Swift is able to reclaim any income that may have gone toward songs previously owned by her former label. 

What can we learn from Swift?

Swift’s case provides several important lessons to creators about the importance of intellectual property rights. Situations such as these, while not usually on the same scale, are relatively common in the entertainment industry. Prince, Kesha, and The Beatles are just some of the many artists who have fought for ownership rights of their music.  Artists need to be careful when entering contracts in order to protect their intellectual property rights. Intellectual property is valuable, and it is crucial artists recognize the significance of protecting their rights. Without intellectual property protection, artists would not be fully compensated for their creations. As a result, artists’ desire to produce new work would decline and cultural innovation would suffer. Moreover, creators should never rush to sign a contract before consulting a legal professional and fully understanding the future implications of each clause, as they can have enormous ramifications. The document that Swift signed in 2005 is still affecting not only her life, but the music industry today. Despite the legal hurdles Swift has dealt with, she is ultimately able to survive and profit off recreating her old music. Swift’s strong fan base has rallied behind her by promoting her rerecorded music and has helped her continue a career as one of the most successful female artists of the decade. 

“Hey Chatbot, Who Owns your Words?”: A look into ChatGPT and Issues of Authorship

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Photo by Tara Winstead on Pexels.com

By: Zachary Finn

Unless you have lived under a rock, since last December, our world has been popularized by the infamous ChatGPT. Generative Pre-trained Transformer (“ChatGPT”) is an AI powered chatbot which uses adaptive human-like responses to answer questions, converse, write stories, and engage with input transmitted by its user. Chatbots are becoming increasingly popular in many industries and can be found on the web, social media platforms, messaging apps, and other digital services. The world of artificial intelligence sits on the precipice of innovation and exponential technological discovery. Because of this, the law has lagged to catch up and interpret critical issues that have emerged from chatbots like ChatGPT. One issue that has risen within the intersection of AI-Chatbot technology and law is that of copyright and intellectual property over a chatbot’s generated work. The only thing that may be predictable about the copyright of an AI’s work is that (sadly) ChatGPT likely does not own its labor. 

To first understand how ChatGPT figures into the realm of copyright and intellectual property, it is important to understand the foundations and algorithms that give chatbot machines’ life. A chatbot is an artificial intelligence program designed to simulate conversation with human users. OpenAI developed ChatGPT to converse with users, typically through text or voice-based interactions. Chatbots are used in a variety of ways, such as: user services, conversation, information gathering, and language learning. ChatGPT is programmed to understand user contributions and respond with appropriate and relevant information. These inputs are sent by human users, and a chatbot’s response is often based on machine learning algorithms or on a predefined script. Machine learning algorithms are methods by which an AI system functions, generally predicting output values from given input data. In lay terms, a system will learn from previous human inputs to generate a more accurate response. 

The ChatGPT process goes as followed:

1. A human individual inputs data, such as a question or statement: “What were George Washington’s teeth made of?”

2. The Chatbot reads the data and uses machine learning, algorithms, and its powerful processor to generate a response.

3. ChatGPT’s response is relayed back to the user in a discussion-like manner: “Contrary to popular belief, Washington’s dentures were not made of wood, but rather a combination of materials that were common for dentures at the time, including human and animal teeth, ivory, and metal springs. Some of Washington’s dentures also reportedly included teeth from his own slaves” (This response was generated by my personal inquiry with ChatGPT).

So, who ultimately owns content produced by ChatGPT and other AI platforms? Is it the human user? OpenAI or the system developers? Or, does artificial intelligence have its own property rights?

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. This is codified in The Copyright Act of 1976, which provides the framework for copyright law. Speaking on the element of authorship, anyone who creates an original fixed work, like taking a photograph, writing a blog, or even creating software, becomes the author and owner of that work. Corporations and other people besides a work’s creator can also be owners, through co-ownership or when a work is made for hire (which authorizes works created by an employee within the scope of employment to be owned by the employer). Ownership can also be contracted.

In a recent Ninth Circuit Court decision, the appellate court held that for a work to be protected by copyright, it must be the product of creative authorship by a human author. In the case of Naruto v Slater, where a monkey ran off with an individual’s camera and took a plethora of selfies, it was concluded that the monkey did not have protections over the selfies because copyright does not extend to animals or nonhumans. §313.2 of the Copyright Act states that the U.S. Copyright Office  will not register works produced by nature, animals, the divine, the supernatural, etc. In the case of AI, a court would likely apply this rule and similar as well as any precedent cases that have dealt with similar fact patterns with computer generated outputs.

Absent human authorship, a work is not entitled to copyright protection. Therefore, AI-created work, like the labor manufactured by ChatGPT will plausibly be considered works of public domain upon creation. If not this, it is likely they will be seen as a derivative work of the information in which the AI based its creation. A derivative work is “a work based on or derived from one or more already existing works”. This fashions a new issue as to whether the materials used by an AI are derived from algorithms created by companies like OpenAI, or by users who influence a bot’s generated response, like when someone investigates George Washington’s teeth. Luckily for OpenAI, the company acknowledges via its terms and agreements that it has ownership over content produced by the ChatGPT.

However, without a contract to waive authorship rights, the law has yet to address intellectual property rights of works produced by chatbots. One wonders when an issue like this will present itself to a court for systemization into law, and if when that time comes, will AI chatbots have the conversational skills and intellect to argue for ownership of their words?

Virtual Experiences in the Art World: Potential for Copyright Issues

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Photo by Erik Mclean on Pexels.com

By: Lauren Liu

Since the COVID pandemic hit, the world has been facing continuous health and economic issues. The art world, in particular, has been facing hardships that require art institutions to adjust their mode of operations. Since the year 2020, the world’s effort to contain the spread of COVID forced art galleries and museums around the world to close their doors and look for new forms of operation and exhibition. Such adaptations include increasing online marketing platforms, organizing virtual panels, and even creating online art exhibitions. In particular, these virtual exhibitions use high-resolution images of artworks, and provide them with contextual introductions of the artists’ background and inspiration. Some galleries include artworks that are available for sale, and thus further providing financial benefits for the galleries and their artists. The most fascinating part of these virtual platforms is the galleries’ implementation of virtual reality and augmented reality tools to produce virtual tours and remote immersive experiences. In other words, they are virtual exhibitions that mimic the audience’s experience when they are physically in an art gallery.

Virtual reality, also known as augmented reality (AR), usually displays an original or scanned work of art in a digital setting, thus creating a “total immersion” experience for the audience. As amazing and creative as it is for the audience, legal issues can arise for the gallery. For example, AR can invite “guerilla hacking” of a virtual exhibit. Hackers can copy and post unsanctioned works on the digital digital platform, and thus infringe upon the copyright of the original artists and take away the gallery’s potential revenue. Furthermore, the gallery also faces potential lawsuits from their artists alleging that the unauthorized use of their works was approved by the gallery.

As museums and galleries started implementing these virtual methods, they also had to start considering potential copyright issues. When museums use virtual reality or displaying art works online, they must keep in mind the intellectual property rights in the images and the text. Furthermore, they need to consider the rights of the artist, especially for a primary-market sale offer. For most artists, museums generally can clear the rights to use high-resolution images through the artist or her licensing agency. As for the photographer, if he or she is not employed by the artist or the museum, the museum should consider obtaining a broad license or require the photographer to execute a work-made-for-hire agreement with the customary in-the-alternative assignment language. Museums should also obtain the necessary rights from the author of the essays featured in the viewing room.

Museums and galleries may have available to them, the Fair Use defense against copyright infringement claims. For example, for secondary-market sales, such as resales of artworks, museums and galleries may not have a relationship with the artist or the artist’s estate. In such a case, the Fair Use Doctrine may allow the use of small, low-resolution images. The Copyright Act of 1976 provides that “the fair use of a copyrighted work is not an infringement of copyright.” To determine whether an allegedly infringing use is “fair use,” courts need to consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Whether or not the doctrine allows the display of large-scale, high resolution images without permission is less clear. There is also no specific definition of large versus small scale, and high versus low resolution. Courts usually analyze each situation according to a totality of circumstances.

Lastly, galleries should be aware of whether or not the displayed artwork incorporates third-party content. If so, the owner of that content can potentially have a claim against the display. Possible solutions to mitigate this risk include obtaining an opinion from attorneys regarding potential Fair Use defense, working with the artist in advance of an exhibition to reach an agreement about the use,  and potentially having liability or omissions insurance in place. 

The online presence of museums and art galleries has grown due to COVID. Even now, after all venues have nearly reopened to the public, many virtual options still remain available. Although there are many uncertainties in potential copyright cases, museums and galleries that are using or considering virtual arts should conduct more thorough legal research, seek legal advice from counsel, and implement prevention mechanisms to mitigate risks.

Fair Use at the U.S. Supreme Court? The Andy Warhol Case

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The Supreme Court Building on 1 First Street, NE. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

By: Lauren Liu

In our modern society where information is exchanged at lightspeed and entertainment choices are abundant, copyright infringement has become a more widespread issue than ever. The 1976 Copyright Act harmonized copyright law with free-expression principles, and for the first time, incorporated the concept of “fair use.” If the use of a copyrighted work is “fair use,” then it does not infringe on the original author’s copyright. However, the Fair Use Doctrine, and even copyright as a whole, can seem very conflicting in terms of its purposes. On one hand, copyright offers exclusive rights to copyright owners to protect their work and profitability. On the other hand, the exception of fair use allows others to use and alter the original work without permission from the copyright owner. In 2022, the case alleging the Andy Warhol Foundation of copyright infringement was the center of copyright law. The case raises questions surrounding copyright law and the Fair Use Doctrine. How are we supposed to define the line between fair use and copyright infringement? How can we protect copyright without jeopardizing freedom of expression?

The Copyright Act of 1976 provides that “the fair use of a copyrighted work is not an infringement of copyright.” 17 U.S.C.A. § 107. To determine whether an allegedly infringing use is “fair use,” courts need to consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The case of Andy Warhol Foundation for the Visual Arts, INC., v. Lynn Goldsmith involves the commercial licensing of a silkscreen image that Andy Warhol had created based on respondent Lynn Goldsmith’s copyrighted photograph. The Supreme Court of the United States recently granted this case certiorari. The question mainly focuses on the first element of fair use, and examines whether or not the petitioner, Andy Warhol Foundation (the Foundation), has established that its licensing of the silkscreen image was a “transformative” use, and that this factor should weigh in its favor. The Court will likely look closely at whether or not the transformative use can be established simply by showing that the image conveys a meaning or message different from that of respondent’s original photograph.

The Appellate Court’s decision focused on the first and most important statutory factor: the purpose and character of the use. The purpose of this factor is to distinguish the original creator’s use and the second author’s use of the original work. Although some copying of the original will often be necessary or at least useful in making the second author’s expression clearer and more effective, the second author has to demonstrate that the second work is unlikely to supersede the original. In this case, the Supreme Court will possibly find that the Foundation’s allegedly infringing use served the same purpose—depicting Prince in an article published by a popular magazine—for which Goldsmith’s photographs have frequently been used. Furthermore, although the Foundation argued that the Prince Series was intended for communicating a message about celebrity, the Foundation has not attempted to establish that it needed to reproduce the creative elements of the Goldsmith Photograph in order to communicate that message. The Supreme Court might find that when examining this factor and all other factors, the Foundation’s use of the original work does not meet the requirements for “fair use”, and will likely rule in favor of Goldsmith.

As the legal and artistic worlds wait for a final judgment from the Supreme Court, it is worth noting that the Appellate Court’s ruling and many other “fair use” cases have already created a balance between protecting copyrighted works and allowing other creative expressions. As one of the most popular and well-regarded modern artists, Andy Warhol’s works not only bring aesthetic values to the art world, but also inspire so much creativity. However, it is obvious that many of his works contain elements drawn from public figures and other existing works. Thus, his works can become quite controversial in terms of copyright law. More broadly speaking, in the artistic world, permitting secondary users to copy protected works to a certain degree will facilitate new and creative artistic expressions. However, when such copying becomes unnecessary for the secondary user’s work, the use risks jeopardizing the original author’s rights over the original art. Such unnecessary copying also risks diminishing artists’ incentive to create future original works. Although the fair use of copyrighted works has to be determined on a case-by-case basis, the doctrine helps avoid extreme exclusions or permissions in copyright infringement cases. Creative endeavors should not be deterred by a system that categorically precludes all unauthorized uses of copyrighted works, nor should they be protected by allowing indiscriminate copying.