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Fake Drake: Legal Uncertainty in the Rise of AI-Generated Music

Published onFeb 09, 2024
Fake Drake: Legal Uncertainty in the Rise of AI-Generated Music

In April 2023, the music industry confronted a legally unprecedented issue with the release of a song titled “Heart on My Sleeve,” featuring the AI-generated voice-imitations of multi-platinum artists Drake and The Weeknd. These “sound-alikes” are almost indistinguishable from the Canadian artists’ voices and shocked listeners who were unaware of the difference. “Heart on My Sleeve” quickly gained millions of views and streams across platforms like TikTok, Spotify, and YouTube before Universal Music Group (UMG), the world’s largest music company and the label for Drake and The Weeknd, had the track removed for copyright infringement. UMG did not specify what components of the song were subject to copyright, and existing American precedent undermines such an infringement claim; voices alone are not copyrightable, and neither Drake nor The Weeknd authored the song. However, UMG still has hope of a viable claim under a right of publicity theory.

UMG’s copyright and right of publicity theories can be analyzed through the seminal case Midler v. Ford Motor Co. In Midler, Ford Motor Company asked Grammy Award-winning singer Bette Midler to sing her 1972 hit “Do You Want to Dance?” in a television commercial. After Midler rejected Ford’s offer, Ford obtained a license to use the song from its copyright owner—who was not Midler—and hired a “sound-alike” singer to replicate Midler’s voice. After the commercial was aired, both Midler and her sound-alike were told the song “‘sounded exactly’ like [Midler].”

Midler sued Ford under a right of publicity theory, claiming that Ford’s commercial use of a sound-alike misappropriated her distinct and famous singing voice–her identity. On appeal, the 9th Circuit agreed, holding that “[a] voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested.” Midler’s voice, which was an integral part of her fame, had been “pirated,” deliberately misappropriated for commercial profit and not for “informative or cultural” purposes protected by the First Amendment. However, the Court made the important distinction that “[c]opyright protects ‘original works of authorship fixed in any tangible medium of expression.’ . . .  A voice is not copyrightable. The sounds are not ‘fixed.’” Therefore, UMG’s claim of copyright infringement for a song that neither Drake nor The Weeknd authored or actually sang is invalid.

Further complicating matters is that since Midler, American courts have universally considered authorship by humans a “bedrock requirement of copyright.” The U.S. Copyright Office maintains that “copyright can protect only material that is the product of human creativity” and “the term ‘author,’ which is used in both the Constitution and the Copyright Act, excludes non-humans.” Although AI-generated music will be an issue of first impression in American courts, we may look to AI-generated artwork to predict judicial reasoning behind “authorship.” In August 2023, the U.S. Court of Appeals for the District of Columbia upheld the U.S. Copyright Office’s rejection of an AI-generated painting “A Recent Entrance to Paradise.” Although the Court reasoned that it was ineligible for copyright infringement due to a lack of human authorship, “questions remain about where and how to draw the line between human creation and AI-generated content.” The Court suggested that AI-generated material may have sufficient human authorship to become copyrightable if a “human modifies or arranges the AI-generated material in a sufficiently creative way (e.g., a collage of AI-generated images).” Then, only the human-authored aspects of the work could be subject to copyright. This suggests that Ghostwriter977’s own original contributions–his lyrics, composition, and unconverted vocals–could be copyrightable, but not his artificially generated vocal imitations. However, it is unclear how much human authorship went into creating “Heart On My Sleeve.” Whether the lyrics were written using ChatGPT or completely human-written could determine whether the work could ever be copyrightable.

Perhaps if the voices came from one copyrighted song, there would be a more obvious claim for copyright infringement. However, “Heart on My Sleeve” was created using a generative software that converted Ghostwriter977’s own recorded vocals into the timbre of Drake and The Weeknd. Furthermore, Ghostwriter977 removed these timbre conversions and reuploaded it to Spotify with his own original vocals, resulting in a work that could be eligible for copyright protection as an original work of authorship fixed in a tangible medium of expression.

Midler has been cited in sound-alike suits as recently as the one settled between Rick Astley and Yung Gravy over the latter’s allegedly infringing use of the former’s hit 1987 song “Never Gonna Give You Up.” However, Astley’s case and Midler are distinct from Ghostwriter977’s since they involve human sound-alikes. Furthermore, Midler involves misappropriation to sell a product. Nonetheless, Midler could be instructive to UMG as the basis for a right of publicity claim since Drake’s and The Weeknd’s identities are being misappropriated—portrayed as saying what they did not say.

The danger of AI-generated music lies in the potential for bad intent. In a TikTok comment, Ghostwritter977 claimed to be a disgruntled industry writer “g[etting] paid close to nothing just for major labels to profit.” Media speculation is that Ghostwriter977’s “us[e of] AI to bootleg superstars . . . [functions as] revenge of a sort . . . .” Disgruntled people who become tech-savvy enough to generate AI-sound-alikes can create music deepfakes that both misrepresent artists in defamatory ways and deprive them of compensation. This ethical concern is precisely why the courts, when presented with this issue, should explore their unique ability to confront the gaps in American intellectual property between the right of publicity, copyright, human authorship, and artificial intelligence. American courts, if not the legislature, should determine a solution to address the dangers awaiting in an age where non-human infringement of intellectual property can proliferate.

Vincent Melara is a second-year student at Wake Forest University School of Law and a staff member of the Journal of Business and Intellectual Property Law. He holds a Bachelor of Arts in Politics and International Affairs and a minor in History from Wake Forest University.

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