Should Copyright Protect A.I. Generated Music?

Caroline Gallo, Contributing Member 2023-2024

Intellectual Property and Computer Law Journal

           

I. Introduction

Henry Wadsworth Longfellow once wrote, “Music is the universal language of mankind.”[1] A Harvard study published in 2019 helped prove that statement when their study showed that music has existed in every observed society.[2] Music is such an integral part of our everyday lives; you hear it in many different places like in grocery stores, in the car on the radio, or while watching television shows or movies. Similarly, Artificial Intelligence (“A.I.”) has infiltrated our everyday lives.[3]

Everyday interactions with A.I. include customer service chatbots, product recommendations on websites, and music playlist recommendations.[4] A.I. saw a boom in public use after ChatGPT, an A.I. chatbot, went viral on social media in 2022.[5] Over one million users accessed ChatGPT within five days of its release on November 30, 2022.[6] With the use of A.I. rapidly expanding, questions exploring whether A.I. generated works, like music, can be copyrighted are being highly debated in the legal community.

This article explores the new challenges A.I. brings to the copyright and music world. Part II provides background on generative A.I., copyright protection, and the current relationship between A.I. and copyright. Part III discusses the arguments for and against A.I. generated music being copyrightable. Finally, Part IV concludes that A.I. generated music should be evaluated for copyright on a case-by-case basis.

II. Background

A. What is Generative A.I.?

Generative A.I. is a type of artificial intelligence that can create high-quality text, images, and other content.[7] For generative A.I. to work, the A.I. needs to have data inputted so the A.I. learns how to create statistically likely outputs.[8] The result will be similar to the inputted data, but it will not be an exact copy.[9] The A.I. can create a similar result by identifying patterns and structures within the inputted data to create the new result.[10]

Depending on the A.I. model, the data input may be text, images, videos, or audio, and the result can be generated into any of those forms.[11] This means an inputted audio file can generate a text result.[12]

B. Copyright Protection

The United States Constitution gave Congress the power to enact laws to govern copyright.[13] Congress enacted the Copyright Act of 1978, which stipulates that “original works of authorship fixed in any tangible medium of expression” can be copyrighted.[14] As soon as a musician composes a song or an author writes a book, it is covered by copyright protection.[15] This includes works that are published and unpublished.[16] There is no requirement to register the work with the United States Copyright Office (“the Office”) unless you are pursuing a lawsuit of copyright infringement.[17] Copyright law does not protect facts, concepts, or ideas but may protect how those things are expressed.[18]

An important component of copyright is originality.[19] For a work to be determined original, the author must be human, and the work must contain at least a minimal amount of creativity.[20] The work cannot copy a previous work.[21] If it does copy a previous work, then it may be copyright infringement and the copyright owner could pursue a copyright infringement lawsuit.[22] If the copyrighted work is reproduced for “criticism, comment, news reporting, teaching, scholarship, or research,” then it falls under Fair Use, which is not an infringement.[23]

C. Copyright and A.I.

In August 2023, the Office issued a notice of inquiry in the Federal Register asking for comments on A.I. and Copyright to help decide which steps legislators should take to amend copyright laws, if any.[24] The main issues on which the Office seeks input are: “(1) the use of copyrighted works to train AI models; (2) the copyrightability of material generated using AI systems; (3) potential liability for infringing works generated using AI systems; and (4) the treatment of generative AI outputs that imitate the identity or style of human artists”.[25] Throughout 2023, the Office has hosted public listening sessions, educational webinars, and spoken with stakeholders to assist with this initiative.[26]

The Office provided guidance on registering copyrights for works that contained components generated by A.I. in March 2023.[27] Here, the Office emphasized the important copyright element of the author being human.[28] The Office specified to qualify for copyright,  a machine cannot produce the traditional elements of authorship of the work.[29] This guidance means a human typing the prompt resulting in an A.I. created a work is not sufficient for human authorship and, therefore, does not qualify for copyright protection.[30] In Thaler v. Perlmutter, the Office denied copyright registration to an applicant for an A.I. generated painting.[31] The plaintiff listed the computer system as the painting’s creator, and the Office denied the application as a human did not create the work of art.[32] The United States District Court for the District of Columbia ruled that the plaintiff claiming the A.I. autonomously created the painting on the copyright application supported the Office’s application denial due to no human authorship.[33]

However, the Office indicated in their guidelines if the human organizes the A.I. generated material in a “sufficiently creative way,” it may qualify for copyright protection.[34] The Office stated it will independently evaluate each A.I. generated work when determining if it qualifies under copyright.[35]

III. Discussion

A. Arguments For A.I. Generated Copyright

A.I. as a Tool

The main argument for allowing A.I. generated copyright is A.I. is just another tool to create works.[36] A musical artist uses a piano or guitar as a tool to create a song. Jason Allen, an artist from Colorado, won a Colorado State Fair contest for a painting he created using Midjourney Image, a generative A.I. software.[37] Allen claims he envisioned the painting in a dream and later used A.I. to generate his vision.[38] He claims he entered “at least 624 text prompts” to create the painting.[39] Allen then adjusted the A.I. generated painting by using Adobe Photoshop and another A.I. software to increase resolution and size.[40] Allen claims he directed the A.I. in the production of the image and should get copyright protection.[41] However, the Office denied his copyright application three times and said only “the visual edits” Allen made could be copyrighted.[42]

Commercial Incentive

Allowing A.I. generated music to qualify for copyright protection gives an incentive for investing and using the technology.[43] If developers know using A.I. to create works such as music will not be covered by copyright, it disincentivizes the development of A.I.[44] It would create a disadvantage for creators to use A.I. since their A.I. generated work would be in the public domain, meaning it is free for anyone to use.[45]

Additionally, the framers of the Constitution granted Congress the power to govern copyright, “To promote the Progress of Science and useful Arts”.[46] The framers wanted copyright to create a commercial incentive for authors producing new works.[47] Not allowing A.I. generated music to be copyrighted goes against the original reason for copyright.

B. Arguments Against A.I. Generated Copyright

Generative A.I. has to be trained with data for it to produce content. Lawsuits are currently pending against OpenAI, the company behind ChatGPT, for using authors’ protected writings to train ChatGPT.[48] The authors claim their writings were used to train ChatGPT since it can imitate their writing styles and summarize their works precisely.[49] OpenAI has argued using materials from the Internet to train the A.I. falls under Fair Use.[50] The court would have to rule the use of A.I. like ChatGPT falls under one of the categories of exception such as teaching or research to be considered as Fair Use.[51] Japan recently decided training A.I. models using copyrighted data does not violate copyright law.[52] However, a member of the House of Representatives for the Constitutional Democratic Party of Japan did concede the use against the wishes of the copyright owner is “problematic”, and proposed “a need for new regulations to protect copyright holders.”[53]

Universal Music Group (“UMG”) has been a staunch fighter against A.I. generated music.[54] UMG advocated for streaming services to remove A.I. generated music since it uses artists’ music to train the A.I.[55] In response, Spotify took down tens of thousands of A.I. generated songs.[56] UMG took further steps in its fight by joining the Human Artistry Campaign initiative and requesting Congress to enact A.I. copyright infringement policies in July 2023.[57] The Human Artistry Campaign advocates for requiring A.I. developers gain permission from copyright owners in order to use a work to train the A.I.[58] It also opposes A.I. exemptions from copyright protection..[59]

A video by TikTok user Ghostwriter went viral after they used A.I. to generate a song called “Heart on My Sleeve” with the voices of Drake and The Weeknd.[60] The A.I. generated the song by analyzing Drake songs and lyrics as the inputted data to make it sound like a Drake song.[61] Drake’s copyrighted music was used without his permission, which music executives and lawyers will argue is copyright infringement.[62]

IV. Conclusion

In conclusion, the Copyright Office should grant copyright protection to A.I. generated music on a case-by-case basis. A.I. generated music should qualify for copyright in cases where a human envisions a song in their head, uses A.I. to help bring that vision to life, and then rearranges the A.I. generated song in a way that requires some creativity. Even though A.I. may be seen as a tool to create new music, it should not qualify for copyright protection when previously copyrighted music was used, without the owner’s permission, to train the A.I.. Allowing A.I. to create music based on the style of a specific artist or song diminishes the power of copyright. It is imperative to keep copyright owners protected.

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[1] Henry Wadsworth Longfellow, Outre-mer, a Pilgrimage Beyond the Sea 202 (2nd ed. 1846).

[2] Samuel A. Mehr et al, Universality and Diversity in Human Song, 366 Sci. 970 (2019).

[3] Reem Nadeem, Public Awareness of Artificial Intelligence in Everyday Activities, Pew Research Center (Feb. 15, 2023), https://www.pewresearch.org/science/2023/02/15/public-awareness-of-artificial-intelligence-in-everyday-activities/.

[4] Id.

[5] Bernard Marr, A Short History Of ChatGPT: How We Got To Where We Are Today, Forbes (May 19, 2023), https://www.forbes.com/sites/bernardmarr/2023/05/19/a-short-history-of-chatgpt-how-we-got-to-where-we-are-today/?sh=6286e42a674f.

[6] Id.

[7] Kim Martineau, What is generative AI?, IBM Research Blog (Apr. 20, 2023), https://research.ibm.com/blog/what-is-generative-AI.

[8] Id.

[9] Id.

[10] What is Generative AI?, NVIDIA, https://www.nvidia.com/en-us/glossary/data-science/generative-ai/ (last visited Sept. 22, 2023).

[11] Id.

[12] Id.

[13] U.S. Const. art. I, § 8, cl. 8.

[14] 17 U.S.C. § 102.

[15] Copyright in General, US Copyright Office, https://www.copyright.gov/help/faq/faq-general.html#what (last visited Sept. 10, 2023).

[16] Id.

[17] Id.

[18] Id.

[19] What is Copyright?, US Copyright Office, https://www.copyright.gov/what-is-copyright/#:~:text=Copyright%20is%20originality%20and%20fixation&text=Works%20are%20original%20when%20they,create%20it%20yourself%2C%20without%20copying (last visited Sept. 10, 2023).

[20] Id.

[21] Id.

[22] 17 U.S.C. § 501.

[23] 17 U.S.C. § 107.

[24] Suzanne V Wilson & Maria Strong, Artificial Intelligence and Copyright, 88 Fed. Reg. 59942 (2023).

[25] Id. at 59945.

[26] Id. at 59944-59945.

[27] Id. at 59944.

[28] Id.

[29] Shira Perlmutter, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16192 (2023).

[30] Id.

[31] Thaler v. Perlmutter, No. 22-1564, 2023 U.S. Dist. LEXIS 145823 at 1 (D.D.C. Aug. 18, 2023).

[32] Id.

[33] Id. at *19.

[34] Perlmutter, supra note 29, at 16192.

[35] Id.

[36] Andrew Kenney, Jason Allen’s AI art won the Colorado fair — but now the feds say it can’t get a copyright, Colorado Public Radio (Sept. 6, 2023), https://www.cpr.org/2023/09/06/jason-allens-ai-art-won-colorado-fair-feds-deny-copyright-protection/.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine, October 2017, at 14, 17.

[44] Id.

[45] Id.

[46] Copyright basics, USPTO, https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics (last visited Sept. 22, 2023).

[47] Id.

[48] Blake Brittain, More writers sue OpenAI for copyright infringement over AI training, Reuters (Sept. 11, 2023), https://www.reuters.com/technology/more-writers-sue-openai-copyright-infringement-over-ai-training-2023-09-11/.

[49] Id.

[50] Id.

[51] 17 U.S.C. § 107.

[52] Jose Antonio Lanz, AI Art Wars: Japan Says AI Model Training Doesn’t Violate Copyright, Yahoo (June 5, 2023), https://finance.yahoo.com/news/ai-art-wars-japan-says-185350499.html.

[53] Id.

[54] Talia Smith-Muller, AI Music: What Musicians Need to Know, Berklee Online: Take Note (Aug. 21, 2023), https://online.berklee.edu/takenote/ai-music-what-musicians-need-to-know/.

[55] Id.

[56] Id.

[57] Id.

[58] Human Artistry Campaign, https://humanartistrycampaign.com (last visited Sept. 10, 2023).

[59] Id.

[60] Smith-Muller, supra note 55.

[61] Id.

[62] Id.