Oscar Wilde is credited as saying, “Imitation is the sincerest form of flattery that mediocrity can pay to greatness.” While there is some dispute as to whether Wilde uttered these words, the message is clear: creativity and originality are worthy of praise; imitation, not so much. We may only guess what the Irish wordsmith would think about so-called generative artificial intelligence (“AI”) models and outputs.
Without question, AI is rapidly transforming and, in many cases, upending industries at a pace and scale unmatched in modern history. These changes are often positive, yielding benefits in the form of technological advancements, predictive modeling, and administrative efficiencies. At the same time, like most major shifts in technology, the accompanying disruptions tend to be abrupt and painful. The generative AI revolution is once again proving this rule, and the creative industries appear to be ground zero for legal fights. Recent lawsuits by major record labels, including Universal Music Group, Warner Music Group, and Sony, against AI startups Suno and Udio highlight an important issue that will likely determine the future of generative AI for the music industry and beyond. Specifically, to what extent may existing copyright-protected works and recordings be used to train AI?
The defendants intend to argue that they should be free to use any existing works without permission or payment to train their AI models. They base their defense on a complex legal theory known as “fair use.” Unsurprisingly, the labels disagree. Legal experts and commentators have varying opinions on the matter that cover the spectrum of reasonable analysis. Ultimately, the decision will be determined by the courts unless Congress acts first. In the meantime (and potentially afterward), songwriters and recording artists must be diligent to ensure that their interests are protected. Namely, creatives should prevent their personal attributes (known as name, image, and likeness, or “NIL”) and copyrighted works from being used to train AI and replicate and/or mimic their artistic work and persona.
For instance, when an artist signs a recording contract, the terms of the agreement typically transfer ownership and control of the resulting recordings to the label. The right of ownership necessarily includes the right to use and exploit the recordings at the owner’s discretion and without limitation. Similarly, the contract will include a license to use the artist’s NIL for all purposes related to the use and exploitation of the recordings via any and all media whether or not currently in existence. The label may reasonably assert that it has the right to use such recordings and NIL materials (e.g., videos and photos) to replicate the artist using generative AI without the artist’s consent. For the artist, this is unacceptable if not horrifying.
For now, the best way to protect the artist from this nightmare scenario is through careful contract negotiations. There is talk among artist advocates, trade organizations, and artist representatives to collectively insist upon industry-wide contractual language that limits the use of works and NIL for AI training. Until that time, artists and their teams should carefully review the scope of rights provisions in their agreements. And, of course, involve your attorneys early and often.
*The author does not think generative AI will kill (literally or metaphorically) any radio stars, recording artists, or songwriters.
