How The Latest AI-Generated Copyright Loss Could Add Friction To Music And Technology’s Complicated Relationship

With the rapid rise in creative tools powered by artificial intelligence (AI) like ChatGPT, Dall-E and Midjourney, the laws that protect these new forms of generative content, the government agencies that make them, and the creators who use them are faced with new challenges unique to the emerging technology genre.

What is generative AI?

Generative AI is a subset of artificial intelligence that uses algorithms to generate new content from existing data in the form of images, text, or music. This AI has many accessibility and creativity benefits, however, the tracking of digital copyrights or IP in the form of data which taken apart and pieced back together via algorithms to create new works, presents a layered and complicated logistical and legal puzzle.

AI-generated images not protected by copyright

Last week, the U.S. Copyright Office (USCO) decided to recognize a portion of copyright registration for a comic book created using AI – a departure from its original declaration. Zarya of the Dawn, a comic book authored by Kris Kashtanova, had three components that were created using AI software – the book’s text, artwork selections and the images inside the book. In this case, the text and artwork selections were considered protected under copyright, however, the individual AI-generated images inside the book made using Midjourney, were found without protection. In a letter first reported by Reuters, explaining the copyright registration, the reason the images were not protected is because they “were generated by the Midjourney technology” and “are not the product of human authorship,” according to USCO. As this case is a first of its kind, the outcome could foreshadow how AI-generated material across all creative industries will play out legally, especially in music.

Copyright discourse in music

When it comes to music, copyright discourse is already deeply embedded into the structure of the industry, with many performance rights organizations (PROs) and legal teams built into the fine print whose job it is to collect and enforce royalties between copyright holders and those who desire to use those copyrighted works publicly.

The music industry, however, operates in a somewhat closed and opaque ecosystem of hierarchy while technology innovation tends to value transparency and an open-source model, creating a tense intersection between the two discourses, especially when it comes to administering protections for authors of musical works.

While some parts of the archaic system are still playing catch up to the advancements technology has made in music, serving everyone from creators and fans to mainstream label gatekeepers, and DSPs, the future of music and technology looks bright. Over the last several years, technologies in the form of social media and even Web3 have created social layers between music communities and technologists, giving birth to many innovations that seek to decentralize traditional systems and bring creators more autonomy.

AI and music

Computer-assisted technology has been a somewhat latent part of the music industry for decades. With artists like David Bowie and Brian Eno pioneering new ways of creating sounds deemed futuristic, the recent uptick in music AI conversation indicates that the future is now the present.

According to research and intelligence firm, Water & Music’s latest research and newsletter on creative AI in the music industry in 2023, “over 10 different music AI models have been released by independent researchers and big-tech companies like GoogleGOOG
and ByteDance, hundreds of thousands of AI-generated songs are now listed on streaming services and generative AI tools for audio, text, and visual art have picked up tens of millions of users, forcing us to rethink traditional notions of creativity, ownership, and attribution.”

Ethical and legal concerns

With the acceleration of AI’s adoption in music, ethical concerns and uncharted legal territory become visible talking points. “Many musicians seem to be of the opinion that using AI to create music is cheating, but once you start discussing who should be allowed to make art and how, other kinds of ethical questions around ableism and classism arise,” writes VICE’s Kelly Bishop.

The U.S. courts have not yet created a definitive measure for what AI-generated works will be protected. According to the Zarya of The Dawn copyright case which honors the protection of the work authored by a human with assistance from AI, where does that leave works authored AI technology using human assistance? If musical works created by a human draw on creative elements built into AI, where do you draw the line?

The question is both logistical and legal. “In the absence of bright line rules for ascertaining how much input or intervention by an AI’s user is needed, each work must be individually evaluated. It is a question of degree,” writes James Sammataro (partner) and Nicholas Saady (associate) of Pryor Cashman LLP for Billboard. “Under traditional principles, the more human involvement, and the more AI is used as a tool (and not as the creator), the stronger the case for copyright protection.”

Will tracking each input in a data set of a generative AI program be the responsibility of that program or the creator who used it? How will the source be accurately tracked, stored, and transmitted as potentially millions of pieces of data are used to generate new creative sounds, texts or images using AI?

Friction between music and technology

A similar conundrum has plagued blockchain technology and its efficacy in music. Technically, storing the information of a musical work on the blockchain’s immutable ledger could solve many issues affecting the authors of that musical work – from producers to songwriters, musicians, and designers who all shepherded a piece of music to life. The problem with this utopian vision of blockchain technology solving all of these problems – which it easily could – is that every single party involved in the lifecycle and of the musical work would have to “speak the same language” by using the same technology system. Imagine trying to carry on a group chat with half of the people using iPhones and the other half, using Androids, it’s like a game of telephone. The music industry as it stands is far too expansive and fragmented to utilize one single system for anything.

Looking forward

The logistics and legal considerations of adopting new technologies, while complicated, may be creatively healthy for the music and technology intersection. In large part, PROs exist as administrative detectives protecting the rights of an authors and the content they create – with the acceleration of new authors in the form of AI, will we also see agencies crop up to defend generative creative rights?