Protecting Musicians in GenAI: Key Takeaways From the U.S. Copyright Office

Generative AI presents a profound opportunity and challenge for artists in the music industry. On the one hand, musicians and songwriters have always embraced and adapted to new technology; but on the other, those technological advances have been in service of creativity that starts with a human hand, and ear.

In light of the rapidly changing AI environment and its unprecedented impact on human creativity, the U.S. Copyright Office held a series of listening sessions seeking input from those most likely to be directly impacted by this developing technology. This follows the Office’s March 2023 policy statement, “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence,” which reaffirms the need for human creative control and authorship in order for works to be copyrightable, but there is still much work to be done in this area.

During the May 31 Music and Sound Recordings Listening Session focusing on copyright and artificial intelligence, Manatt Entertainment Partner Nat Bach spoke on behalf of the Music Artists Coalition (MAC) and identified six key principles that should guide policymakers as they consider how to regulate and handle issues pertaining to generative AI in the music industry:

1. Human Artists Over Machines. Human artistry should prevail over machine-based shortcuts every time. Today’s technology will continue to change and evolve, but by asking ourselves at key junctures how we can protect human artistic creation, we can remain on the right path.
2. Music’s Special Status Among the Arts Raises the Stakes for Training AI. Music is different from visual arts in its ability to elicit emotions, and the power of a song to tell a story—on its own or as part of a film, dramatic work or television commercial—is unparalleled. Music is also different as it relates to how AI models are and can be trained. Unlike the billions of images on which some text-to-image AI platforms are trained, including vast numbers of images in the public domain, the universe of recorded music is smaller and primarily accessed via portals and digital service providers (DSPs) like Spotify, YouTube and Apple Music. Those seeking to train AI models and scrape songs are likely to do so using these types of services, which play an important gatekeeping role.
3. Unlicensed AI Training Is Infringement, Full Stop. The training of AI models on artists’ works—without a license—is infringing and not a fair use. The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith reaffirms the primacy of artists’ songs and recordings where the purpose of the use is similar. Under the Court’s reasoning, AI tools that scrape, ingest or copy such musical works are not transformative. GenAI companies may use language to suggest “transformativeness,” but fulsome disclosures will be needed to determine what is actually happening under the hood.
4. AI-Created Music Threatens Artists’ Streaming Royalties. Music that is primarily generated by AI threatens the already meager royalties that artists can earn via streaming. The larger the slice of the streaming pie that is taken up by AI-created, functional music, the less in royalties that DSPs will be required to pay out to human artists and their affiliated licensees. Human artists should be incentivized to create music, but diluting the royalty pools in such fashion would have a significant negative impact.
5. Copyright Protection Must Remain Robustly in Favor of Human Artistry, Complemented by Strong National ROP Legislation.  Copyright is a key pillar of artists’ rights and protections, and should work in tandem with others, like the right of publicity and protections conferred by the Lanham Act. Congress should enact a strong federal right of publicity law to protect name, image, likeness, voice, persona and identity, but that does not lessen the need for robust copyright protection.
6. Learning From the Past. As we consider how best to protect artists in the AI era, we cannot let the allure of technological advancement cause us to not think through its ramifications. In the past, lawmakers have failed to protect copyright because they were seduced by changing technology. We should not be misled by those who claim that AI itself is about freedom and creativity—especially where profit motives threaten the artists and songwriters on whose backs they may build their businesses. Let us not be fooled again.