Artificial intelligence (“AI”) is on everyone’s mind in the entertainment industry as it continues to make headlines in areas including music and performing artists’ rights. In June, the Recording Industry Association of America (“RIAA”) filed twin lawsuits against AI music generators Suno AI and Uncharted Labs, Inc. on behalf of Sony, Universal and Warner Brothers[1] for copyright infringement. Just yesterday, SAG-AFTRA reached a deal with artificial intelligence ads marketplace Narrativ, to offer its members the ability to license their digital voice likeness through the Narrativ platform. These recent developments highlight the types of strategies entertainers and entertainment companies are implementing to ensure they maintain control of their rights to their intellectual property and name, image, and likeness (“NIL”) – both by litigating their rights and/or licensing directly with AI generating companies.
Music Industry Lawsuits
Generally, copyright law gives creators the exclusive right to reproduce, distribute, perform, or display their works, and to create derivates of those works. There are two main issues within copyright law regarding AI generated material: 1) who owns the copyright to AI generated material and 2) what rights do copyright owners have against creators of AI-generated material.
The law on issue 1 is well settled: U.S. copyright law requires “human authorship” to register copyrighted works, because “author” as used in the Copyright Act, “excludes non-humans.” The U.S. Copyright Office issued formal guidance in March 2023 confirming that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” In other words, the Copyright Office will ask “whether the ‘work’ is … actually conceived and executed not by [a human] but by a machine.” If the answer is yes, the work is not eligible for U.S. copyright protection. However, the person/company who created that work via AI could still be liable for copyright infringement, and that is the issue major companies are driving in pending litigation.
RIAA v. Suno and Udio
UMG Recordings, Inc., et al v. Suno, Inc. et al (Case No. 1:24-cv-11611) was filed in the US District Court for the District of Massachusetts. UMG Recordings, Inc., et al v. Uncharted Labs, Inc. et al (Case No. 1:24-cv-0477), was filed in the US District Court for the Southern District of New York. Both cases were brought and are being managed by RIAA on behalf of music companies that hold the rights to sound recordings allegedly infringed by Suno and Udio (Uncharted Labs is the developer of Udio AI). The lawsuits allege that the AI companies engage in copyright infringement by using copies of Plaintiffs’ copyrighted music in their AI training process and the ultimate creation of AI generated music. On their face, the lawsuits seek to enforce the basic principles that “AI companies, like all other enterprises, must abide by the laws that protect human creativity and ingenuity … [and t]here is nothing that exempts AI technology from copyright law or that excuses AI companies from playing by the rules.”[2] Defendants’ Answers deny their liability on the basis of fair use. Although the litigation is in its infancy, the Answers give a preview of how the AI companies plan to litigate these cases – as alleged advocates of the democratization of music (they refer to the increase of user created AI content on their platform as a “surge in democratized creativity.”[3]) The crux of the cases appears to turn on whether an AI company can “cop[y] copyrighted sound recordings to include in its training data … to generate outputs that resemble specific recording artists and specific copyrighted sound recordings.”[4]
The legal theory here is novel – it is not only that the musical output itself infringes copyright but that the underlying training model, using copyrighted material, is also a copyright infringement. Anyone who has attended an entertainment-geared copyright conference in the last few years has seen first-hand that these issues are hotly debated amongst industry experts. The music industry, by bringing this issue head-on in litigation, has created the opportunity to create case law that could benefit either the music companies or the AI creators. The music industry will certainly be taking note. An initial pretrial conference in Uncharted is scheduled before the SDNY on August 21, 2024.
Digital Voice Likeness
While litigation is one avenue to assert and protect the rights of entertainers and entertainment companies against AI generated content, licensing (whether for copyright or name, image, and likeness) is another strategy being explored. Just yesterday, the Hollywood actors’ union SAG-AFTRA reached a deal with Narrativ, an artificial intelligence ads marketplace, to offer its members the ability to license their digital voice likeness through the Narrativ platform. The deal would allow SAG-AFTRA members to not only set their own rates for use of their voice in AI-generated content but also to approve or decline its use at all. Musician Grimes pioneered this concept in 2023 by offering a pilot program to allow artists, with Grimes’ approved collaboration, to transform their own voice samples into a “GrimesAI voiceprint” that can be used in original songs, crediting GrimesAI as a main or featured artist and subject to a 50% royalty split with Grimes. Just as with the SAG-AFTRA/Narrativ contract, the ultimate decision of whether to allow use of her voice and at what rate, is ultimately up to Grimes herself.
Conclusion
AI’s capabilities and the legal ramifications of its use are moving at lightning speed. While numerous organizations are lobbying Congress to protect their rights – including the National Association of Voice Actors (“NAVA”) – others are turning to litigation and licensing for help containing the potential upheaval to the industry posed by the rise of artificial intelligence. According to NAVA founder and President Tim Friedlander in 2023, voice likeness is often less protected than image likeness or image and voice likeness jointly. Likewise, the question of whether using copyrighted materials in underlying training materials used by AI to generate content is yet unsettled. Legislation, litigation, and contractual licensing deals are just some of the current strategies being used that will jointly determine how these IP and NIL rights ultimately end up protected.
[1] The plaintiffs include UMG Recordings, Inc., Capitol Records, Inc., Sony Music Entertainment, Arista Music, Arista Records, LLC, Atlantic Recording Corporation, Rhino Entertainment Company, Warner Music Inc., Warner Music International Services Limited, Warner Records Inc., Warner Records LLC, and Warner Records/SIRE Ventures LLC. Plaintiffs are represented by Cowan, Liebowitz, & Latman and Hueston Hennigan. The AI Defendants are represented by Quinn Emanuel and Latham & Watkins.
[2] UMG Recordings Complaint SDNY (Doc. No. 1) at pg. 2.
[3] Uncharted Labs Answer (Doc. 26) at pg 3.
[4] UMG Recordings Complaint SDNY (Doc. No. 1) at pg. 5.
