AI, Music Composition & Copyright: A New Frontier
Last week, I had the pleasure of presenting a lecture on AI in Music Education at my alma mater, Montclair State University. During the lecture, one of the graduate students asked me about US Copyright Law and how it applied to composing music. While I knew that the law does not apply to AI-generated art and music, but what about AI-assisted work? I simply didn’t know the answer. After about a week’s worth of research on the topic, and two decades of interest in US Copyright Law (I wrote a book titled The Teachers Guide to Music, Media & Copyright Law about 15 years ago), the following is what I’ve found out. In a nutshell, AI is moving so fast, the law is trying to catch up - but it has a way to go until there is real clarity.
You may remember that back in April of 2023, a new collaboration between two icons of hip hip - Drake & The Weeknd - titled Heart On My Sleeve hit sites like Spotify, TikTok and YouTube and immediately racked up millions of streams. The only issue? Drake and The Weeknd had nothing to do with the track. It was created by an anonymous TikToker named Ghostwriter who trained an AI music creation program to recreate Drake and The Weeknd’s vocals on a song that he wrote himself using samples, his own lyrics and vocals, and some pretty decent production. Here is a cool video that I found that explains exactly how he did it:
Believe it or not, Heart On My Sleeve was considered for a GRAMMY Award, but ultimately Harvey Mason Jr., the CEO of the Recording Academy, announced that the lack of commercial availability disqualified “Heart On My Sleeve,” though, by new Academy standards released in June, it was eligible in all other respects. Because Ghostwriter composed the song and only used generative AI voice modeling but composed the rest of the song himself, the song would be eligible for a Grammy since the human’s authorship was “meaningful and more than de minimis,” or minor, with respects to the music, lyrics and performance and depending on the category of submission. So the only reason it isn’t being considered for a GRAMMY is because you can no longer find it online.
So what does US Copyright Law have to say about AI generated music? Earlier this year, they launched an initiative to examine the copyright law and policy issues raised by AI, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training. After months of hearings, meetings, and public input, they published a notice of inquiry in the Federal Register in August 2023. This Notice of Inquiry is actually still underway. They have extended the deadline for comments until November 29, 2023. Even though the US Copyright office is still trying to codify the law, a court in Washington DC recently ruled that works created 100% by generative AI tools cannot be copyrighted under US law.
That said, there are so many nuances to the use of AI in creating new works, and so many questions.
If an AI program composes a piece of music without any human creative input, is that work protected by copyright? So far, the answer is NO. US Copyright Law has not yet been written on this subject.
If AI generated loops are used to compose a song, but there is also a significant amount of original human-generated content included, does that qualify for copyright protection? So far, it looks like the answer is YES. This is no different than works that use pre-existing copyright and royalty-free loops.
Does US Copyright Law protection cover artists when others use their content to train AI software to sound like them? So far, the answer is leaning towards YES, but it hasn’t been codified yet.
How can anyone actually detect whether AI generated content is being used in a new work? So far, the answer is THEY CAN’T unless it is self-identified as AI generated.
Are AI software titles that focus on generating content, either by training on copyrighted works or replicating artists voices, infringing on US Copyright Law? So far, the it seems that the law is treating these software titles like any other platform where infringement occurs and therefore the end products are subject to DMCA provisions. That is why Heart On My Sleeve was pulled off the Internet.
Is AI generated content covered by Fair Use laws? So far, the law has yet to be written on this, but experts are pushing for a “fair learning” standard for using copyrighted material in machine learning. It would include the question: What is the purpose of the copying? If it’s to learn only, that may be permitted, but if the intent is to reproduce the work, it will not be. Not every machine learning data set would qualify for the protection. New tools also raise questions about who has liability for infringement — the user prompting the machine, the company that programmed the tool or both?
We should see some definitive legislation in 2024. In the meantime, AI-related lawsuits are happening on a daily basis. The most recent is a lawsuit against an AI company called Anthropic. Universal Music Group and other major record labels sued Anthropic for using its AI tool to distribute copyrighted lyrics without a licensing deal. Anthropic claims that it’s use is a Fair Use - training an AI bot to simulate the lyrics of an artist because it has been trained on that artists copyrighted lyrics. You can see that this type of issue is complicated to say the least.
Obviously AI-generated content is a very hot topic at the moment - not only for the music industry. It is a large part of the SAG-AFTRA strike that has been going on for months now. Like many technologies that have come before AI, US Copyright Law is often playing catch up. Technology moves WAY faster that the US legislative process. Personally, I believe that asking students what they think about AI and copyright is a fascinating topic. Copyright Law currently only covers works created by humans. How strange a notion it is that we are now wondering whether works created by machines should be covered by the same laws. What do you think?
Here are a few articles that I used to research this article:
AI Generated Art Cannot Receive Copyrights: US Court Says
AI-Generated Drake, The Weeknd Song Not Eligible For Grammy. Here’s How It Could Have Been, Though.
AI-Faked Drake, The Weeknd Song Amps Music Industry’s IP Alarm
Music lyrics lawsuit could set AI copyright precedent
U.S. Copyright Office Extends Deadline for Comments on Artificial Intelligence Notice of Inquiry
