AI-Generated Music Copyright | What Musicians and Creators Need to Know

What Is AI-Generated Music?

Imagine hearing a new song by The Beatles today. An AI learning model may be able to create a “new” composition that sounds like bands you already know and love. As AI improves, many listeners are already finding that they have trouble telling the difference between an AI-made song and a song written by a human person.

What Is Derivative Work?

Title 17, Section 101 of the Copyright Act creates a limitation on “derivative works”. Derivative works are defined as any output “based upon one or more preexisting works.” Before AI, derivative works might have included “translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgements, and condensations of preexisting works” (Copyright Office Circular 14).

To comply with the Copyright Act, a translator or musical arranger would need to contact the original rights holder and obtain their permission for use, or establish that their new work is protected under the fair use doctrine. Copyright holders are presumed to have rights protecting the creation of derivative works based on their original creativity.

Perhaps the main question surrounding AI is whether it can truly create anything new, or if all AI output is simply derivative work. Generative AI models must be trained on large sets of data in order to function. For instance, an AI program cannot create a song that sounds like The Beatles if it has never scanned or seen an already-existing Beatles song, and because of this, the use of AI may implicitly violate the very nature of many copyright protections.

AI Music Legal Battle Examples

Generative AI in music is a new territory. The courts have yet to come down on one side or the other on whether or not artists are protected under copyright laws for the use of their work in AI. The three major US-based labels, Sony Music, Warner Music Group, and Universal Music Group, have sued two of the most prominent AI music companies, Suno and Udio, over copyright infringement claims.

These cases, which have been filed in Boston and New York, allege that the two AI music companies used works by artists like Chuck Berry and Mariah Carey to train their software. The companies were then able to produce music that closely mimics the original recordings using generative AI. The record companies are seeking major damages to the tune of $150,000 per infringed work, which will quickly add up given the scale of AI training, as well as the extent of master recordings owned by the major label groups.

What Is “Work Made for Hire”?

In general, the creator of the work is presumed to be the owner under US copyright law. “Work for hire” is a notable exception to this principle.

Under certain circumstances, work made for pay can legally belong to the company or entity that commissioned the output. This is called “work for hire” and is governed by Section 101 of the U.S. Copyright Act (Title 17 of the U.S. Code).

In recent reviews, the Copyright Board has rejected the effort to classify AI-generated art as “work-for-hire”, stating that US copyright law is not designed to extend past human authorship. For instance, in the 2018 case Naruto v. Slater, a selfie taken by a macaque monkey was deemed unprotectable as the creator was non-human. Human authors are currently necessary to qualify for registration under the Copyright Act.

Can AI-Generated Music Be Copyrighted?

AI-generated music can be purchased and downloaded. For instance, the US-based AI music company Suno currently tells its users that premium subscribers can pay to own the sound recording that they generate. However, whether or not AI music can be copyrighted and truly “owned” remains to be seen.

Courts have yet to decide formally whether or not copyright protections apply to AI music, but signs point to a battle as to how, where, and to what extent humans were involved in the creation process. For instance, a music producer who uses AI software to scan for clipping audio after performing a guitar solo would likely have a much better case for ownership of their work than someone who uses AI to generate the entire melody, lyrics, and backing track for their song.

Can You Sue for Copyright Infringement on AI-Generated Music?

Even major artists and their labels are faced with dilemmas over copyright infringement for AI-generated music. Recently, an AI-generated song mimicking the style of Drake and The Weeknd went viral before being flagged by a DMCA takedown notice. Courts have yet to conclusively decide whether or not Drake and The Weeknd, or any other artists whose works have been fed into AI algorithms, have any legal recourse or protections.

In some ways, AI functions very similarly to human creativity. Most artists admit to being inspired by existing melodies, songs, themes, and genres. They listen to their heroes and then create their versions of songs with new lyrics and melodies.

It remains to be seen if AI-generated music will be understood as an extension of this kind of fair use or whether or not it is in another camp altogether.