A Look Ahead: AI in the Music Industry

Tal Dickstein, Loeb & Loeb’s Litigation partner, takes a look at the evolving landscape of artificial intelligence (AI) and its impact on the entertainment industry, particularly the music industry landscape. AI raises several copyright challenges for artists, songwriters and businesses through their training systems and ability to create works that mimic protected works.

This industry is witnessing a transformative shift in copyright dynamics driven by AI. Are AI-generated works protected by copyright law, and what happens when human creativity is blended with AI-generated content? Legal disputes are emerging, raising questions about content ownership and protection. How are artists actively addressing the issues of human authorship and safeguarding their works? On the commercial front, transparency about AI use is becoming paramount, with creators taking measures to control the use of their content in AI models. How can creators leverage the benefits of AI without compromising their artistic integrity? Tal delves into these topics and arising legal challenges surrounding AI-assisted creative works and the use of copyrighted materials for AI training.

Tell us about your practice and what sorts of IP and entertainment matters you generally deal with in your practice.

My practice primarily involves counseling clients and litigating disputes in the music, motion picture and television industries. I have represented record labels, music publishers, artists and songwriters in various copyright infringement lawsuits. I often defend songwriters, publishers and record labels accused of copying earlier works, but I have also prosecuted claims against businesses that have used my client’s copyrighted music without a license.

I also provide counsel on a variety of contractual disputes, royalty audits and scope-of-rights disputes for record labels and music publishers. For motion picture and television producers, I provide a variety of pre-production advice covering various issues, including copyright protection, content licensing, defamation risks and fair use. 

Driven by the advent of AI, the copyright landscape is shifting in the entertainment industry. What are some of the emerging issues you’re witnessing in this space? 

There is no doubt that AI will have profound impacts on all sectors of the entertainment industry and will test the bounds of copyright law. One crucial issue is the copyright protections of works generated by AI.

On the content creation side, the Copyright Office and at least one federal court—Thaler v. Perlmutter—have already ruled that images, text and video created entirely by AI are not protected by copyright law. However, a human author’s decision to add artistic elements to an AI-generated work or to arrange multiple images in a particular order can result in protectable content. The challenges come when determining which aspects of a work represent protected human authorship as opposed to unprotected AI-generated material. This will likely be contested in the context of copyright registration applications, ownership disputes and copyright infringement actions.

How are artists, songwriters, publishers and their legal counsel gearing up to navigate this new era of copyrights and AI-related issues?

As artists and songwriters begin to leverage AI tools to help create and enhance their music, their music publishers and legal counsel are focusing on ensuring that their works are subject to copyright protection in order to prevent unauthorized uses. One key step to achieve this is applying to register a work with the U.S. Copyright Office, which must be done before an infringement action can be filed. Early registration can also entitle the copyright owner to enhanced damages and recovery of their legal fees in an infringement action. While the application process was, until recently, relatively straightforward and ministerial, it’s now much more nuanced, as AI-generated components of a work must be disclosed and disclaimed. This makes it imperative for artists and songwriters to keep detailed records as to how they create their musical compositions and recordings, as infringers will likely argue that the use of AI tools undercuts copyright protection. At the same time, human authorship should be emphasized in order to ensure the maximum scope of protection. 

As creators choose to use AI platforms in their creative processes, they should also have their counsel carefully review the terms of services, as they can vary significantly from one platform to another. Their counsel should attempt to ensure that the AI platform will indemnify users for any alleged infringement resulting from the use of the AI technology, or at least that the platforms themselves do not claim title to the output generated by their users. Artist counsel should also ensure that the use of AI-generating tools does not violate any exclusive recording obligations that may be contained in the artist’s recording contract.

Lastly, artists, songwriters and their representatives are also exploring ways to prevent the unauthorized uses of their music to train AI models. Recently, a group of music publishing companies filed a lawsuit against an AI platform, alleging that its model infringes their copyrighted song lyrics. While we have seen a slew of lawsuits filed against AI platforms by book authors and visual artists, this is the first legal action targeting AI technology filed by a music publisher. The industry will be watching the outcome of this lawsuit to see where copyright infringement issues are headed.

Based on the advent of AI, what kinds of IP issues have become top of mind for entertainment businesses and creators? 

The absence of copyright protection for entirely AI-generated works introduces complexity into intellectual property transactions in the entertainment industry. While it has long been a common practice for content creators to represent and warrant the originality of their works when they are sold, we are seeing the industry take extra steps to require that grantors disclose whether a work is created using AI technology, and to represent and warrant that any such use doesn’t undermine copyright protection. 

Naturally, content creators have grown increasingly worried that their works and data are being used to train AI systems. This has prompted creators to take a proactive approach by locking down content and licensing their data for use in training models. Artists and record labels are also looking to control the market to prevent AI-generated music that mimics the style and voice of famous artists. We’ve witnessed major record labels and technology companies partner together to license artists’ voices for AI-generated music to ensure the proper licensing fees are paid for the work. 

I anticipate other record labels and the broader industry will follow suit as the discussion of AI in artistic works continues to expand. AI can have a place in the industry and hold value for creators, but getting ahead of the legal issues and taking the proper steps to ensure artistic works are copyrighted will be invaluable.

What specific legal issues do you anticipate over the next three to five years based on these developments? 

As the use of AI becomes more widespread in the entertainment industry, I expect the bounds of copyright and related areas of the law to continue to be tested. For example, as it becomes possible to generate vocal recordings that sound like famous artists, courts will have to grapple with the question of whether that practice violates the artists’ right of publicity. While the right of publicity laws in many states protect celebrities against unauthorized uses of their voices, most cases to be decided in this area have involved sound-alike voices used in advertisements. It remains to be seen how courts will address this issue in the context of artistic works, which traditionally have been carved out of many states’ right of publicity laws. 

To help address that gap in the law, we have seen the recent introduction of the “No Fakes Act,” which would add a new federal right to prevent the unauthorized creation and dissemination of a person’s “digital replica,” along with statutory damages for each violation. While this proposed legislation would not create a full federal right of publicity as many in the entertainment industry have been clamoring for, it would protect artists and celebrities from AI-generated content that mimics their vocal performances and personas without permission. 

I also expect that owners of large volumes of content will use new legal tools to prevent the unauthorized use of their content to train AI models. Many will revise their terms of use or implement technical measures to prevent unauthorized use of their online content to train AI systems—a practice often known as data scraping. While this may not address AI systems that have already been trained on large swaths of the internet, it could allow content owners to prevent the use of their content to train AI systems in the future and to negotiate some form of compensation for such uses.

What makes Loeb & Loeb a leader in this space?

Loeb & Loeb’s unique strengths lie in its deep familiarity with intellectual property laws, including copyright and right of publicity; our extensive representation of content creators, owners, and distributors across the music, motion picture and television industries; and our leadership in media and technology practices. This combination of interdisciplinary practices positions us to provide unparalleled guidance on the profound impacts of AI across all facets of the entertainment industry.