A few weeks ago, a new song said to be written by Drake and The Weeknd hit TikTok and Spotify and quickly spread like wildfire across the internet. "Heart on My Sleeve" has garnered rave reviews and high excitement among hip-hop fans not only for the track's infectious lyrics and melody, but also for curious details about the featured artists -- who, in fact, The song was not made at all.
Instead, the tune was created using artificial intelligence by TikTok user Ghostwriter977, who trained the AI on compositions by Drake and The Weeknd and generated a new song that perfectly mimics the artist's voice, lyrics and musical style. Within days, however, his videos, which had racked up more than 9 million views, were removed from TikTok, Spotify and other platforms in response to claims from the artist's record label, Universal Music Group.
After the song was pulled, questions remained about the confusion. Does this song really infringe Drake and The Weeknd's copyright? What other avenues are there for artists to combat AI-generated music? Are songs eligible for their own copyright protection? Harvard Law Today spoke to intellectual property expert Louis Tompros, a Harvard law lecturer and WilmerHale partner, about these pressing questions -- questions he says courts are only just beginning to consider.
Harvard Law Today : What Is the Current Legal Landscape Relevant to AI-Generated Art?
Louis Tompros : Generally speaking, copyright law gives copyright owners the exclusive right to reproduce, distribute, perform or display their works and to create derivative works of those works. I think the impact of AI on copyright falls into two categories. One is the rights that the AI-generated material itself has, and the other is what rights someone might have that they can assert against the AI-generated material.
Regarding the first question, the question is: who (if any) owns the copyright to all or part of the material generated by artificial intelligence. The Copyright Office recently provided some very useful guidance on this. On March 15, the Copyright Office released its latest official guidance reaffirming its position that works created by AI without human intervention or human participation cannot receive copyright protection. The Constitution gives Congress the ability to make copyright laws, and the Constitution uses the word "author." For this reason, copyright law uses the word "author," which is repeatedly interpreted to mean a person. Therefore, for the purposes of constitutional and statutory copyright grants, only humans can be authors.
Now, to be clear, this is the Copyright Office's position, but it hasn't been fully tested in court, and it will be. But I should point out that the Copyright Office also says that works containing AI-generated material may be copyrightable if there is sufficient human authorship; for example, if a human selects or arranges AI material in a creative way, that can still be copyrighted. Copyright Protection.
HLT : What about the second question?
Tompros : The second big question is, what rights do human copyright holders have when AI creates something? Here, there are two types of problems—input problems and output problems. On the input side, is there a copyright involved in the training required to create these complex AI models? In other words, if I'm training an AI by listening to a bunch of music, am I violating the copyright of that music owner if I do it without their consent? Or is it somehow protected under copyright law through fair use or otherwise?
Then there is the issue of output, that is, if copyright law gives the owner the exclusive right to create a derivative work based on his own previous work, that is to use AI to create something based on other works, then the derivative work is only the original copyright owner Will it be able to make it? Generally speaking, music in the style of others is not considered a derivative work for the purposes of copyright law, and is permitted. But where we have machine learning and AI generation work, it's an open question whether those outputs themselves are protected. Thus, both input and output problems are unresolved and complex.
HLT : We've seen this song removed from TikTok and some other places where it originally appeared on the web, thanks to the lawyers representing Universal Music Group. What's the best argument why they should cancel it?
Tompros : To understand what they're doing, you have to understand a little bit how takedown works in the context of copyright. Under the Digital Millennium Copyright Act, there is a procedure that allows rights holders to notify third parties such as YouTube or Apple Music that they are distributing a work that, in the rights holder's opinion, infringes their copyright. And then, in order to protect some of the rights that those platforms have under the DMCA, those platforms had to take it down immediately. This is traditionally known as a "DMCA takedown."
It's unclear exactly what lawyers for Drake and The Weeknd did to get the song pulled. There are reports that it was taken down using the DMCA, which makes sense, since procedurally, that's really the only way you can get a platform to remove something quickly. But what's not entirely clear is what arguments they actually made in their DMCA takedown requests. There are reports that it wasn't actually removed because it was a stylistic copy of Drake and The Weeknd, but in fact, it was removed for a quick copy of a "producer tag" producer Metro Boomin's song. This tag apparently shows up in AI-generated artwork, which isn't surprising since if you're trying to generate something Drake-style, you're likely to include some sort of producer tag in it. It would make sense if that's where the DMCA takedown notice came from, since that's a direct copy of someone's audio, even if it's as brief as a producer tag. But again, it's unclear what exactly they stated in the DMCA request, as the documents were not released in court.
I think there might be arguments based on inputs and outputs in terms of the broader copyright arguments Drake and The Weeknd's lawyers might make. They could argue that this AI-generated song is the result of training the AI with Drake's work, and for that to happen, someone must have copied Drake's work into the system, and copying is a copyright violation. They may also try to prove that the output itself is some form of copyright infringement because it is a derivative work of those artists' work.
In my opinion, their best argument is not the copyright argument at all, but the right of publicity argument. There is clear precedent in California and other states under state law, which essentially says that imitating a famous musician's music violates that musician's right of publicity. The most famous case is Bette Midler's lawsuit against Ford in 1988, which reached the Ninth Circuit Court of Appeals. Essentially, Ford made an ad for Mercury Sable and they wanted to use the Bette Midler song "Do You Want to Dance." She didn't want to license it, so they hired a Bette Midler impersonator and had her sing the song. The Ninth Circuit held that when you have the distinctive voice of a professional singer and are deliberately imitated to sell something,
It seems so simple, here is an intentional parody of Drake and The Weeknd, for some kind of commercial use. The problem with a right of publicity claim is that there is no DMCA takedown remedy. Drake and The Weeknd couldn't immediately pull the song; they would have to file a state claim and go through the often slow process.
HLT : According to the Copyright Office's current guidance, someone who feeds music from Drake and The Weeknd into an AI and asks it to create a new song based on that material may not be considered the song's author. But is there an argument as to why the song didn't infringe those artists' copyrights either?
Tom Pross : I think the creator of the song has some good arguments as to why it doesn't infringe copyright. The first is on the input side. There is no doubt that someone put these artists' songs into the AI, it must be a copy. But the creators of the AI songs can argue that this is protected fair use and therefore not infringing copyright. The First Amendment protects free speech, and it serves as a check on the scope of copyright law. There is a section of copyright law dealing with fair use, which outlines the factors that affect copyright infringement. The point of contention may be that AI training is not something that is replicated for commercial purposes; rather, it is intentional change and an attempt to create something new,
The second parameter a creator may have is on the output side. If Drake and The Weeknd claim it's a copy of one of their songs, or a derivative work of one of their songs, the really simple argument the AI creators have is "no, it's not". The lyrics are different, and the tune is also different. It's a different song and you don't have permission to use it. If I, as a person, listened to a whole bunch of Drake's music and wrote my own song inspired by him, but I didn't use the same lyrics or the same music, everyone would agree that it wasn't a copy. Why doesn't the same standard apply to artificial intelligence?
**HLT:** In your opinion, how does AI-generated music compare to other industry-disrupting technologies like music sampling?
Tompros : When sampling really started to catch on, there were a ton of copyright issues about it, but they were a bit simpler than in the context of AI. By sampling, there is no doubt that it is a copy. If I actually put someone else's riff into my song as a sample, then I've copied it, end of sentence. The question then becomes whether it's a reasonable use, and in sampling, it depends on how much you've sampled something, how necessary it is, and how transformative what you've done to it is from the original.
In a classic Supreme Court case on sampling, 2 Live Crew's involvement in Roy Orbison's "Pretty Woman" was, in fact, a very iconic part of it that was ultimately found fair use because it was transformative in nature properties, and took only the reference and changed it as much as needed.
Unlike sampling, with AI you're not just taking a part, you're taking the whole thing. The AI got a copy of Drake's entire composition, the entire collection of Drake's songs. But on the other hand, the output doesn't contain anything copied from the original at all. From a fair use standpoint, this makes it a more complicated calculation. But in terms of industry disruption, there's no question that AI is having a major impact on the music industry, as it is affecting so many industries, and it will be up to the legal system to address it.
"The balance between an artist's right to protect their work and the artist's right to create something new is precisely the basis of copyright law as it is enshrined in the Constitution."
HLT : How do we balance protecting artists' rights to their own material with promoting musical innovation?
Tompros : I think the balance between the artist's right to protect their work and the artist's right to create something new is exactly the balance that copyright law has been based on since it was enshrined in the Constitution.
First, there is the pure market view. We want to encourage people to make new music, we need to think about what works best to encourage new music, and where we draw the line in preserving old music to encourage people to make new music. From a purely economic standpoint, would Drake make those songs and sell those albums if he knew someone could use artificial intelligence to do these things in the future? Maybe, but that's a tricky question. Then there's the purely creative perspective. When writers and musicians create something, they think it's theirs, and they want to be able to control it. At the same time, we can't shut down other people's right to free speech; it's not possible that just because I made something doesn't mean you can never talk about what I did or improve it.
At the end of the day, both of these things need to be balanced. Over the past 100 years, copyright law has struggled to keep up with new technologies in ways that continue to create incentives and protect artists.
**HLT:** What legal changes, if any, do you think are needed to address AI-generated art?
Tompros : I would be happy if there could be thoughtful and strong statutory amendments to copyright law to try and address these changing technologies. I think that's probably unrealistic, partly because it's so hard to make any kind of federal law change, and let's add to that the fact that copyright law has to keep pace with various international treaties. Therefore, I think the chances of an AI-centric copyright law regulation change are low, though not impossible.
More likely, what we will see is an evolution in how courts approach these issues when dealing with AI. I think we'll also see some ongoing regulatory action from the Copyright Office, but I hope and expect the courts to give us more clarity on three fronts in the coming months and years. One, we need to look at the case law that agrees or disagrees with the Copyright Office on whether an AI can be an author. The second thing of value is a court consensus on whether copying for the purpose of training an AI is a fair use. Third, I wish we had more clarity on whether AI works in someone else's style are derivative works.
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