Farhan Buvvaji
Edited by Mihir Gokhale, Jia Lin, and Vedanth Ramabhadran.
In April of 2023, a producer under the pseudonym "Ghostwriter" released the track "Heart on My Sleeve," which featured verses from famous artists Drake and The Weeknd. The song has since gone viral, with close to 7 million views on YouTube and over 240,000 plays on Spotify [4]. A track with music giants like Drake and The Weeknd becoming popular seems unsurprising, except they never actually worked on "Heart On My Sleeve" [4]. Instead, the verses were completely done by Artificial Intelligence (AI), which shocked millions of avid listeners since the generated voices were remarkably identical. From the cadence to the unique flow, the track was nearly indistinguishable from the real artists, leaving listeners in awe and the industry in shock.
Beyond just music, modern AI programs can now create art, write code, and even pass the Bar Exam. In collaboration with human ingenuity, these AI tools can truly unlock a world of possibilities ranging from complex problem-solving to innovations that transcend conventional boundaries. However, AI tools could also be viewed as a Pandora's Box that can potentially disrupt various industries and several legal precedents.
Most recently, the music industry has expressed concerns over the potential abuse of AI tools, specifically through imitation and replacement. AI impersonation of artists and creators has become increasingly common, raising questions about the legal applications of copyright and intellectual property protections in this space. The music industry is particularly susceptible to AI impersonation as artists and prominent record labels have voiced frustration over AI tools that impersonate artists' voices to create viral songs. Additionally, streaming sites like Spotify have increasingly become involved since many AI-generated tracks are released on their platform [1]. Although Spotify cannot be held liable for copyright violations by hosting these songs, it is required to remove them upon the request of a copyright holder. However, these same streaming platforms are simultaneously popular sources of music to train AI models and create generated tracks. Consequently, the Universal Music Group corporation has requested streaming platforms to crack down on AI-generated music on their sites [1]. Meanwhile, artists and labels are left inquiring about what protections are in place for their work, especially if imitators potentially violate copyright laws.
A common legal question has come to the forefront of these frustrations: whether or not someone's voice should be protected under copyright. After all, AI tools aren't necessarily copying lyrics or production — just the artist's voice. Surprisingly, this question has legal precedence. In 1988, the United States Court of Appeals for the Ninth Circuit addressed this quandary in Midler v. Ford Motor Co. The Ford Motor Company had requested singer Bette Midler's voice for a TV commercial that advertised the Ford Lincoln Mercury. Midler declined to do the commercial, so Ford hired Midler's backup singer to imitate Midler's record, "Do You Want to Dance" [2]. Furthermore, the commercial did not use Bette Midler's name, making her voice the only aspect of the commercial that connected to her likeness [2]. Despite the advertising agency having obtained the copyright license to use the song for the commercial, Midler sued Ford.
The court's decision had three facets regarding the First Amendment, federal copyright law, and state identity law. Midler v. Ford Motor Co. ruled that the First Amendment protects the imitation of likeness as long as the purpose is not to defame or exploit the individual being imitated [2]. Addressing federal copyright law, the court held that one's voice is not copyright protected but also found that a person's voice is as "personal" as their face and is, therefore, part of their observed identity. Thus, the court reasoned that Ford's imitation of Midler's voice was the same as "taking her identity" and awarded Midler $400,000 in damages under California state law [2]. Ultimately, the case had two implications: (1) voice cannot be copyrighted, and (2) state law determines the legality of identity appropriation.
The United States Court of Appeals further cemented these takeaways for the Ninth Circuit's decision in Tom Waits v. Frito-Lay, Inc. in 1992. Similar to Ford, Frito-Lay hired an artist named Stephen Carter, who could impersonate Tom Waits for a commercial [7]. Here, the court further clarified the significance of state law, ruling that because voice is a part of identity, the right of publicity protects against imitation unless there is consent [7]. Additionally, the court set standards for misappropriating a voice, clarifying that the voice must be distinctive, widely recognizable, and deliberately imitated for commercial purposes.
Although these rulings were practical in the past, AI tools have made industries adamant that voices should be protected under copyright. However, courts have yet to change interpretations and continue to follow the precedents established by Midler and Tom Waits. While these cases maintain that voice cannot be copyrighted, they provide a valuable legal alternative for artists to protect their likeness: the right to publicity. For instance, if imitation is used for commercial purposes, then it infringes on artists' right to publicity and artists like Midler and Waits could still sue imitators even today [5]. Unfortunately for artists, the right to publicity and consent is not enshrined in federal law, and only fourteen states currently address it. Moreover, the statutes vary from state to state, with laws differing over digital imitations and whether deceased artists maintain their right to publicity [6]. Thus, while the right to publicity is a potential legal mechanism that artists can use for protection, it ultimately cannot be as consistent as a federal copyright of voice.
The push for change has been strong, as legislation aiming to regulate AI imitation has received attention. For instance, Adobe has proposed the Federal Anti-Impersonation Right Act (FAIR), which protects artists from AI tools [3]. The proposal would make the user of the AI tool liable and require intent to impersonate. Additionally, the FAIR Act would expand the right to publicity at the federal level rather than relying on state laws in the status quo [3]. Senators in Congress have proposed similar measures through the Nurture Originals, Foster Art, and Keep Entertainment Safe Act (NO FAKES Act), which would federalize likeness laws by barring digital imitations without the consent of the subject in question.
Until these proposals garner stronger attention, artists and creators must face the daunting challenge of AI imitation. AI will continue to disrupt the music industry, and some contend that it will significantly change the market. While the music industry argues that AI tools will discourage established artists from making new music, proponents of AI assert that the market could benefit from increased competition and innovative artistry [5]. While the contest of mankind vs. man-made has existed for decades, it has now entered a complex legal framework of copyright and likeness that marks a new chapter in this enduring competition.
[1] Anna Nicolaou, Streaming services urged to clamp down on AI-generated music Financial Times (2023), https://www.ft.com/content/aec1679b-5a34-4dad-9fc9-f4d8cdd124b9 (last visited Nov 21, 2023).
[2] Cecelia Hubbert, Midler v. Ford Motor Co. - Sturm college of law Sports and Entertainment Law Journal, https://www.law.du.edu/documents/sports-and-entertainment-law-journal/case-summaries/1988-midler-v-ford-motor-co.pdf (last visited Nov 22, 2023).
[3] Dana Rao, The Fair Act: A new right to protect artists in the age of ai: Adobe blog The FAIR Act: A New Right to Protect Artists in the Age of AI | Adobe Blog (2023), https://blog.adobe.com/en/publish/2023/09/12/fair-act-to-protect-artists-in-age-of-ai (last visited Nov 21, 2023).
[4] Mark Savage, AI-generated Drake and The Weeknd Song Goes viral BBC News (2023), https://www.bbc.com/news/entertainment-arts-65298834 (last visited Dec 1, 2023).
[5] Rachel Reed, Ai created a song mimicking the work of Drake and the weeknd. what does that mean for copyright law? Harvard Law School (2023), https://hls.harvard.edu/today/ai-created-a-song-mimicking-the-work-of-drake-and-the-weeknd-what-does-that-mean-for-copyright-law/ (last visited Nov 21, 2023).
[6] Rich Stim, The right of publicity www.nolo.com (2014), https://www.nolo.com/legal-encyclopedia/the-right-publicity.html#:~:text=The%20right%20of%20publicity%20is%20a%20matter%20of%20state%20law,passed%20statutes%20regulating%20these%20rights. (last visited Nov 21, 2023).
[7] Robert Boochever, TOM WAITS v. FRITO-LAY, INC. (1992), http://law2.umkc.edu/faculty/projects/ftrials/communications/waits.html (last visited Nov 21, 2023).
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