Every industry today is abuzz with the possibilities of artificial intelligence, and music is no exception. In the year since the AI-generated hit "Heart on My Sleeve," courts have started to tackle AI issues in the arts head-on. In Concord Music Group v. Anthropic, one of the leading cases in this area, plaintiffs, including Capitol Records and Universal Music, allege that defendant Anthropic's AI bot infringed at least 500 copyrighted lyrics. Last month, the parties' joint status report indicated that interests remained too far apart for settlement, and the case has since been transferred from the Middle District of Tennessee to the Northern District of California. Two more lawsuits relating to AI music tools have just been filed in the District of Massachusetts (UMG Recordings, Inc. v. Suno Inc.) and the Southern District of New York (UMG Recordings Inc. v. Uncharted Labs Inc.), where major record labels, including Capitol Records, Sony Music and Atlantic, claim that AI companies copied their recordings to build models that allow their users to make "genuine human sound recordings in response to basic inputs."
But while copyright questions linger, it's also worth examining a lesser-mentioned right: the right of publicity. The right of publicity protects individuals from the misappropriation of their likeness. This could include one's name, appearance, or any other indication of identity—for example, one's voice.
Historically, the right of publicity has been in the realm of state and common law. But in October of last year, the bipartisan NO FAKES Act of 2023 was introduced in Congress as a federal rights of publicity law. How might new and existing laws account for the tidal wave of questions that AI poses? Here's a closer look at three questions:
1. How should the law weigh "commercial use"?
A successful copyright infringement claim usually involves a "commercial use," or a use with a profit or marketing purpose. But this element hasn't been as straightforward for the right of publicity. In the absence of a federal statute, state law—and judicial interpretations thereof—are mixed on whether commercial use is or should be a requirement for a right of publicity claim. Compare, for example, Huston v. Hearst Commc'ns, Inc., 53 F.4th 1097 (7th Cir. 2022), where the court dismissed claims due to lack of commercial use under the Illinois Right of Publicity Act, with Jackson v. Roberts (In re Jackson), 972 F.3d 25 (2d Cir. 2020), where the court, interpreting the Connecticut common law right of publicity, noted that "the rule is not limited to commercial appropriation."
"AI music" is an umbrella term to refer to a number of creative options made available to everyday users with the assistance of generative technology, whether by using an algorithm to write lyrics, produce beats, mimic voices, or all of the above. As a result of this widespread accessibility, most AI music creators share their works for free on public platforms like YouTube and TikTok. However, if statutes shift away from a commercial use requirement, even these mostly unprofitable entertainment-focused uses could be a source of liability for users or the platforms that host them.
But would musicians really pursue right of publicity claims against individuals and platforms that generate no profit? Consider the circumstances surrounding Taylor Swift's latest single, "Fortnight." Before the song's official release, an unofficial AI "leak" caught so much traction that some listeners preferred it to the original. Whether out of reputational or marketing interests, AI music could create real incentives for artists to enforce their rights of publicity, even in traditionally non-commercial contexts.
2. How should practitioners navigate ownership and transfer of an identity?
Like with other forms of IP, there are some situations where the right of publicity may be transferable to others, such as by a license to use certain attributes of one's likeness. As AI goes from a taboo to a helpful tool, creative ways to exploit this right will likely be on the rise. For example, singer-songwriter Lauv recently released a version of his single, "Love U Like That," entirely in Korean. But Lauv doesn't speak Korean—the song was created with the assistance of AI, which was used to layer Lauv's voice on top of the voice and lyrics of a real Korean pop star, Kevin Woo.
The example prompts the question—who owns such a song, and which parts? If, one day, a singer chooses to sell their voice for another artist's use, what role does the law have in overseeing that transfer?
Definitions of ownership need to be increasingly sophisticated to account for the numerous contributors to AI music, especially if the primary voice or face of the song may not have been literally involved in the work's creation. Likewise, in agreements involving such sales or transfers, practitioners should proceed cautiously to ensure their clients' rights are carefully delineated in terms of permitted uses—lest an artist suddenly hear they've released a whole album in Spanish!
3. How long should the right of publicity last?
The lifespans of rights in different forms of IP differ. While trademarks can potentially have infinite lifespans, copyrights and patents have statutory periods before expiration. The right of publicity currently lies somewhere in between, where state law differences have led to various post-mortem rights (and lack thereof).
For example, Massachusetts law doesn't define any kind of post-mortem right of publicity (Mass. Gen. Laws ch. 214, § 3A), while California statute provides for 70 years after the death of the rightsholder (Cal. Civ. Code § 3344.1). Tennessee allows for perpetual rights, so long as the right continues to be used at least every two years (TN Code § 47-25-1104).
But AI music may push lawmakers to define the scope of these post-mortem rights more clearly, and to formally adopt post-mortem rights where no such rights exist. Without such rights, the use of late artists' vocal samples may be too tempting to pass up. Take, for example, Drake's diss track against Kendrick Lamar, which included AI-generated verses from the late Tupac Shakur. The drafters of the NO FAKES Act are considering this question, with a proposed post-mortem period of 70 years that seemingly adopts the California standard. But is that too long when AI makes someone's likeness more exploitable than ever? Time will tell—and until then, Sinatra singing Nirvana remains available for all to enjoy.
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Originally published 26 June 2024
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