Credit: The Come Up Show | Flickr
Intro:
In April 2023, TikTok user ghostwriter977 uploaded a song titled “Heart on My Sleeve” that was created using generative AI to mimic the voices of musicians The Weeknd and Drake. “Heart on My Sleeve” became an overnight success and stirred excitement amongst hip-hop fans to the point where the song garnered over nine million views on TikTok and was uploaded onto Spotify, YouTube, Tidal, Apple Music, and other platforms. However, Universal Music Group (UMG) had the song removed from all streaming platforms, claiming copyright infringement for using the voices of The Weeknd and Drake. This begs a myriad of copyright issues plaguing the song’s short lifespan.
1. Ghostwriter977’s Copyright Claim
AI Companies and users struggle to secure copyright protection for AI-generated works. Under current U.S. copyright law, copyright protection has yet to be extended to non-human creators, an obvious problem for AI-generated works. Currently, the U.S. Copyright Office will not register works produced by a machine or mechanical process unless there is some copyrightable input or intervention by a human creator. While copyright protections are currently shaky at best with respect to AI-generated works, it is generally accepted that if a human conducts a large portion of the work themselves with AI assistance, then it will satisfy a claim for copyright. Courts can look to Kashtanova to guide their application of this principle, where copyright registration failed due to the use of generative AI. In Kashtanova, the U.S. Copyright Office then stated that “though she claims to have ‘guided’ the structure and content of each image, the process described in the Kashtanova Letter makes clear that it was Midjourney—not Kashtanova—that originated the ‘traditional elements of authorship’ in the images.”
Ghostwriter977 will struggle to secure copyright protection for the song itself as it inputs the voices into an AI generator and uses the program to create the song. However, as Harvard Law Today pointed out, there are still viable options under which ghostwriter977 can gain copyright protection.
A. Is “Heart on My Sleeve” Protected by the Fair Use Doctrine?
Even if ghostwriter977 struggles to secure copyright protection for his AI-generated work, he can raise the fair use defense. Fair use allows creators to make use of copyrighted material for a specific and “transformative” purpose,
including activities such as commenting on, critiquing, or parodying copyrighted work. These uses can be carried out without approval from the copyright holder. Fair use serves as a legal defense against allegations of copyright infringement. If the potentially infringing use meets the criteria for fair use, it does not constitute copyright infringement. This issue is likely to be divisive in the courts for the following reasons:
1. Purpose and Character
The U.S. Copyright Office lists that several purposes are likely to be considered fair use: comments, educational purposes, news reporting, criticism, and more. Here, the song does not fall under those traditional paradigms. This recreation is unlikely to satisfy this element of the Fair Use Doctrine.
2. Nature of Copyrighted Work
The second prong of the Fair Use Doctrine centers around the original work in contention. Derivative works that are in the public domain or used for educational purposes are more likely to qualify as fair use. While this prong is not greatly analyzed, courts may find this factor more persuasive, favoring UMG as the copyrighted work is for entertainment and not education purposes.
3. Amount of Substantiality of Portion Used
Courts also consider the amount of the original work used in the potentially infringing work. This often occurs during sampling when an artist takes a snippet of a full-length song and implements that snippet into their new music. Courts find that sampling is protected under the Fair Use Doctrine if it is transformative. But here, ghostwriter977 took the voices of the artists to sing his lyrics. While this may seem like outright copying, courts should pay attention to the fact that the AI-generated song did not actually copy anything from the original.
4. Effect on the Potential Market
Adverse market effects for the original creator also factor into the fair use defense. While Drake and The Weeknd are some of the largest artists in the world, ghostwriter977’s rapid success may impact the streaming revenue for the two artists by diverting streams away from Drake and The Weeknd. Courts may also consider how the song’s nine million views demonstrate an ability to profit.
This issue highlights the long-standing contention between music and new technologies. As expressed in Harvard Law Today, “The balance between artists’ rights in protecting what they have done and artists’ rights in creating something new is exactly the balance that has underlaid copyright law since it was embedded in the Constitution.” The courts must consider this balance as they deal with new technology, such as generative AI.
B. The Lanham Act May Also Provide Ghostwriter977 Protection
The United States lacks federal law governing the rights of publicity. Instead, the United States contains a patchwork of state legislation and common law, further obfuscating the legal landscape. This is made worse as many states also possess underdeveloped laws on the issue. Until 1988, it was widely believed that simply imitating a celebrity's voice did not violate their rights of publicity.
However, a case in 1988 changed this perception. The Ninth Circuit Court of Appeals ruled the Ford Motor Company had wrongfully used singer Bette Midler's unique voice when it hired her former backup singer to mimic her performance in a song for a television commercial. Midler's claim under California's rights of publicity statute, California Civil Code § 3344, was dismissed because the statute only protected against the appropriation of an individual's actual voice, not an imitation. However, the court did allow Midler to pursue her claim under common law. “Four years later, in Waits v. Frito-Lay, Inc., the Ninth Circuit confirmed that ‘when voice is a sufficient indicia of a celebrity’s identity, the right of publicity protects against its imitation for commercial purposes without the celebrity’s consent,’ and clarified the common law rule that for a voice to be misappropriated, it must be (1) distinctive, (2) widely known and (3) deliberately imitated for commercial use.”
The Lanham Act, a federal law primarily used in trademark cases, could also serve as a useful tool to safeguard against artists who mimic famous voices in their work. This act seeks to prevent unfair competition among businesses, and Section 43(a) specifically prohibits the use of any symbol or device that is likely to mislead consumers regarding the connection, endorsement, or approval of products or services by someone else. Whether the Lanham Act can be applied to AI-generated soundalikes depends on whether the imitation is likely to confuse consumers regarding the original artist's involvement, endorsement, or approval of the new creation. If the AI-generated voice leads to confusion, the Lanham Act may be utilized to protect the rights of artists. Nonetheless, liability may be avoided if AI soundalike artists clearly state in their recordings, titles, or marketing materials that the tracks are not produced by the artist whose voice is emulated.
2. Music & Generative AI - Business Implications and Impact on the Industry
The use of Generative AI could usher in a paradigm shift for music, prioritizing artists' interests over the primarily profit-driven motives of the industry. With the emergence of artificial intelligence, creators and industry giants are grappling with the still unknown impact that AI could have. AI provides the ability to replicate voices and quicken the efficiency and creativity of the entertainment industry beyond what was thought to be imaginable just within the last few years.
However, with its worldwide accessibility, AI usage has led to immense legal controversy in the past few months. Ghostwriter977 is now eligible for a Grammy for their usage of artist ‘voices’ and clever song lyrics. The song was an immediate success, grabbing the attention of the Academy and artists’ managers. Ghostwriter977’s song was not a one-hit-wonder either, with their new song, Whiplash, being released featuring the voices of rappers Travis Scott and 21 Savage. The creator also pokes fun at the attempts to take down their songs with the producer tag “can’t kill a ghost.” Ghostwriter977’s team also spoke with the recording academy in an effort to discuss the long-term impact of AI within the music industry and the capability of technology growth for both customers and music labels.
While AI can certainly be used to expedite the music creation process, some have criticized and questioned its long-term viability and how it may affect the authenticity and creativity that encompasses the creation of art. AI replicates using algorithms of preexisting concepts, so the usage of AI may just lead to a plethora of music that sounds relatively the same, leading to a decrease in innovation. This was previously seen with illegal downloads, and now, the revenue implications in the intersection of AI and intellectual property. With the increase in technological advancements, artists may have no choice but to incorporate this change into their own creation processes. But this sink-or-swim mentality is commonplace within the entertainment industry and its constant innovative development.
Conclusion
“Heart on My Sleeve” and other forms of AI-generated music demonstrate how rapidly evolving technology will impact various industries seemingly overnight. With the upcoming challenges and innovative changes which come from the intersection of technology and law, there are efforts to protect artist’s creative expression and potential changes in how copyright infringement is approached. Due to the dynamic nature of the legal terrain concerning AI-generated content, it is imperative that creators and legal professionals remain vigilant in keeping up with the evolving aspects of copyright law and consider alternative approaches to safeguard their inventive creations. Ultimately, determining the most suitable strategy to preserve the outcomes of AI-enhanced creativity will hinge on the particular context and the extent of human engagement in the creative process.
*The views expressed in this article do not represent the views of Santa Clara University.