Record labels' lawsuits over artificial intelligence raise new copyright issue for U.S. courts By Reuters

By Blake Brittain

(Reuters) – Country musician Tift Merritt’s most popular song on Spotify, “Traveling Alone,” is a ballad with lyrics evoking loneliness and the open road. Prompted by Reuters to make “a Tift Merritt-style Americana song,” artificial intelligence music website Udio instantly generated “Holy Grounds,” a ballad with lyrics about “driving down old back roads” while “watching the fields and skies shift and sway.” Merritt, a Grammy-nominated singer-songwriter, told Reuters the “knockoff” Udio created “isn’t on any album of mine.” “This is a great demonstration of how completely this technology is not transformative,” Merritt said. “It’s a rip-off.” Merritt, a longtime advocate for artists’ rights, is not the only musician sounding alarm bells. In April, she joined Billie Eilish, Nicki Minaj, Stevie Wonder and dozens of other artists in an open letter warning that music generated by artificial intelligence and trained on their recordings could “sabotage creativity” and marginalize human artists. Major labels are also concerned. Sony (NYSE:) Music, Universal Music Group (AS:) and Warner Music sued Udio and another music ai company called Suno in June, marking the music industry’s entry into high-stakes copyright battles over ai-generated content that are just beginning to make their way through the courts. “Ingesting massive amounts of creative work to imitate it is not creative,” said Merritt, an independent musician whose first record label is now owned by UMG but who said she is not financially involved with the company. “That’s stealing to be a competitor and replace us.”

Suno and Udio cited previous public statements in defense of their technology when asked for comment for this article. They filed their initial responses in court on Thursday, denying any copyright infringement and arguing that the lawsuits were attempts to stifle smaller competitors. They compared the labels’ protests to past industry concerns about synthesizers, drum machines and other innovations replacing human musicians. UNTAMED GROUND The companies, which have attracted venture capital funding, have said they prohibit users from creating songs that explicitly imitate top artists. But the new lawsuits say Suno and Udio can be enticed to play elements of songs by Mariah Carey, James Brown and others and to imitate voices by artists including ABBA and Bruce Springsteen, showing that they misused the labels’ catalog of copyrighted recordings to train their systems. Mitch Glazier, executive director of the Recording Industry Association of America (RIAA), a music industry group, said the lawsuits “document the blatant copying of vast quantities of recordings in order to flood the market with cheap knockoffs and take audiences and revenue away from real human artists and songwriters.” “artificial intelligence holds great promise, but only if it is built on a solid, responsible and authoritative foundation,” Glazier said.

When asked to comment on the cases, Warner Music referred Reuters to the RIAA. Sony and UMG did not respond.

The record labels’ lawsuits echo allegations by novelists, media outlets, music publishers and others in high-profile copyright lawsuits over chatbots like OpenAI’s ChatGPT and Anthropic’s Claude that use generative ai to create text. Those lawsuits are still pending and in their early stages. Both sets of cases raise novel questions for courts, including whether the law should make exceptions for ai’s use of copyrighted material to create something new. The record labels’ cases, which could take years to resolve, also raise questions unique to their subject matter: music. The interplay of melody, harmony, rhythm and other elements can make it difficult to determine when parts of a copyrighted song have been infringed compared with works like written text, said Brian McBrearty, a musicologist who specializes in copyright analysis. “Music has more factors than just the flow of words,” McBrearty said. “It has tone, rhythm and harmonic context. It’s a richer mix of different elements that make it a little bit less straightforward.” Some of the claims in ai copyright cases could rely on comparisons between the output of an ai system and the allegedly misused material used to train it, requiring the kind of analysis that has challenged judges and juries in cases about music. In a 2018 decision that a dissenting judge called a “dangerous precedent,” Robin Thicke and Pharrell Williams lost a case brought by Marvin Gaye’s estate over the similarity of their hit “Blurred Lines” to Gaye’s “Got to Give It Up.” But artists including Katy Perry and Ed Sheeran have since rejected similar complaints about their own songs.

Suno and Udio argued in very similar court filings that their productions do not infringe copyrights, saying that U.S. copyright law protects sound recordings that “imitate or simulate” other recorded music. “Music copyright has always been a messy universe,” said Julie Albert, an intellectual property partner at the law firm Baker Botts in New York, who is tracking the new cases. And even without that complication, Albert said rapidly evolving artificial intelligence technology is creating new uncertainty at all levels of copyright law. WHOSE FAIR USE IS IT? The complexities of music may matter less in the end if, as many expect, the ai ​​cases boil down to a “fair use” defense against infringement claims — another area of ​​U.S. copyright law fraught with open questions. Fair use promotes free speech by allowing unauthorized use of copyrighted works in certain circumstances, and courts often focus on whether the new use transforms the original works. Defendants in ai copyright cases have argued that their products make fair use of human creations and that any court ruling to the contrary would be disastrous for the potentially multi-billion dollar ai industry.

Suno and Udio said Thursday in their responses to the labels’ lawsuits that their use of existing recordings to help people create new songs “is quintessential ‘fair use.’” Fair use could make or break cases, legal experts said, but no court has yet ruled on the issue in the ai ​​context. Albert said ai companies that generate music might have a harder time proving fair use compared with chatbot creators, which can summarize and synthesize text in ways that courts may find more likely to transform. Imagine a student using ai to generate a report on the American Civil War that incorporates text from a novel on the topic, he said, compared with someone asking ai to create new music based on existing music. The student example “certainly seems like a different purpose than logging into a music generation tool and saying ‘hey, I’d like to make a song that sounds like a top 10 artist,’” Albert said. “The purpose is pretty similar to what the artist would have had in the first place.” Last year, a Supreme Court ruling on fair use could have an outsized impact on music cases because it focused largely on whether a new use has the same commercial purpose as the original work. That argument is a key part of the Suno and Udio complaints, which claimed that companies use the labels’ music “with the ultimate goal of robbing listeners, fans and potential licensees of the sound recordings they copied.” Merritt said she worries that tech companies might try to use ai to replace artists like her. If musicians’ songs can be extracted for free and used to imitate them, she said, the economic question is simple. “Robots and ai don’t get royalties,” she said.