AI Generates a Song with the Same Melody Line as "I Heard It Through the Grapevine." Who Gets Sued?

[Anderton]

Seriously: who gets sued for copyright infringement?

 

This hasn't happened yet, but it will. AI can derive its output only from what came before, which means it's drawing from something that was created by humans. 

 

Come to think of it, how many copyrighted images are being scraped up and used? Same with melody lines?

 

Now, you could argue it's fair use. "The fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." But I don't think you'd win the argument.

 

You could argue you've done something transformational. But if you could rip off distinctive melody lines, then no one would ever have to pay royalties for cover versions of songs. Creative work is less likely to be considered fair use than factual. Short bits are less likely to be a problem, unless the material is "memorable" or "significant." But consider the beginning of Beethoven's Fifth - those 8 notes are certainly memorable - or the "I can name that tune in 6 notes" contests. 

 

As to whether the copy affects the value of the original work...that gets sticky. Some would say anything AI does that replaces a human's creative endeavors affects the value of that work. 

 

Images are more complicated - think collage, or Andy Warhol's soup can (he successfully fought off an infringement suit because of the transformative nature). But music? We only have so many notes and chord progressions. AI will come up with stuff that infringes. I don't see a way around it, until AI realizes it's note for note the same as something it found somewhere on the web, and decides it has to change the melody line. But it might not. It might think "this is a melody line people like, so I'll use it."

 

Then what?

 

There are so many slippery slopes, we'll be able to ski for free the rest of our lives

 

 

[KuruPrionz]

I'm just tossing in my 2 cents, make of it what you will. 

 

As a "for instance", Michael Jackson once bought the Beatles catalog.

https://americansongwriter.com/the-story-behind-michael-jackson-buying-the-beatles-catalog-and-angering-friend-paul-mccartney/

 

Let's say AI copies the melody of "Everybody's Got Something To Hide Cept For Me And My Monkey" and it gets streamed. If Michael Jackson's estate still holds the catalog (I don't know if they do or not, just saying), they could MJ's folks sue the streaming companies for violation of copyright because they are the ones disseminating it to the public? What about suing radio stations? 

 

I think if somebody with deep pockets sues whoever promotes the music and wins, that will cause hesitation.

 

As it is right now, tons of music is stolen and reconfigured in other countries who do not care about US copyright at all. Patents? Same thing. Shameless theft of intellectual property is already part of our world. 

 

If humans were going to be honest and ethical, wouldn't that have happened a long time ago? We are the only animal that can actually be corrupt, other critters to what they do because that's how they live and we pay them no mind unless they eat our children. Then we can kill them. 😇

[Anderton]

8 minutes ago, KuruPrionz said:

As it is right now, tons of music is stolen and reconfigured in other countries who do not care about US copyright at all. Patents? Same thing. Shameless theft of intellectual property is already part of our world. 

Yes, but that's conscious theft. AI could come up with something and not realize it had stolen something. So some company on the level of Disney thinks it's really smart that it used AI to create a movie theme song, no one catches the resemblance, and...the Call of the Deep Pockets goes out to a lawyer. Do you sue the AI engine for negligence? Or the movie company? Or the person overseeing production for not catching it? I have absolutely no idea.

 

No doubt copyright has been torn to shreds, but lawsuits still happen, and rights holders still win sometimes. Sure, the company could try "well we didn't know." That might mitigate damages, but I don't think the rights holder would be satisfied with "well, we said we're sorry." I think the lawyer would argue that the distinctive melody contributed to the success of the movie, and would ask for a piece of the action.

[KuruPrionz]

1 minute ago, Anderton said:

Yes, but that's conscious theft. AI could come up with something and not realize it had stolen something. So some company on the level of Disney thinks it's really smart that it used AI to create a movie theme song, no one catches the resemblance, and...the Call of the Deep Pockets goes out to a lawyer. Do you sue the AI engine for negligence? Or the movie company? Or the person overseeing production for not catching it? I have absolutely no idea.

 

No doubt copyright has been torn to shreds, but lawsuits still happen, and rights holders still win sometimes. Sure, the company could try "well we didn't know." That might mitigate damages, but I don't think the rights holder would be satisfied with "well, we said we're sorry." I think the lawyer would argue that the distinctive melody contributed to the success of the movie, and would ask for a piece of the action.

A good lawyer would skin the movie company alive. While you obviously cannot sue a computer and it doesn't have any money anyway, those who accepted the violation and took their chances with it could be on the hook with no real way to abate. 

George Harrison got sued for My Sweet Lord - violation of copyright for He's So Fine. 

[Anderton]

2 minutes ago, KuruPrionz said:

A good lawyer would skin the movie company alive. While you obviously cannot sue a computer and it doesn't have any money anyway, those who accepted the violation and took their chances with it could be on the hook with no real way to abate. 

 

That seems logical. Then again, you think logically, which may put you out of sync with the rest of the world

 

But who knows? The movie company might sue the company that created the AI engine for not programming it to reject music that doesn't meet the standards for fair use, and cite negligence.

 

I suspect it would end like most nebulous lawsuits - the company would settle with plaintiff. Basically, pay them off to go away.

 

Perhaps the larger question is whether this destroys the concept of copyright once and for all, because the creator will not only have no way to control distribution, but no way to avoid having it incorporated in other works, whether by accident or design (probably mostly by accident). The volume of data will be so huge as to be impossible to police in any meaningful way.

[KuruPrionz]

6 minutes ago, Anderton said:

 

That seems logical. Then again, you think logically, which may put you out of sync with the rest of the world

 

But who knows? The movie company might sue the company that created the AI engine for not programming it to reject music that doesn't meet the standards for fair use, and cite negligence.

 

I suspect it would end like most nebulous lawsuits - the company would settle with plaintiff. Basically, pay them off to go away.

 

Perhaps the larger question is whether this destroys the concept of copyright once and for all, because the creator will not only have no way to control distribution, but no way to avoid having it incorporated in other works, whether by accident or design (probably mostly by accident). The volume of data will be so huge as to be impossible to police in any meaningful way.

That could happen. 

It's possible that enough legal turmoil could be generated early on to curtail any such intentions, at least in this country where we have lots of sue-crazy lawyers and crooks swindling for the $$$. 

As is often the case, if things are dealt with early on then they may not escalate. 

 

I do think it is inevitable the AI will become part of what we once considered to be "music". 

I don't look forward to it and I have no plans to participate, possible exception being making something new that is so repulsively abominable that I never would have thought of it otherwise... 

[dmitch57]

There is a flip side to this question: if/when an AI generates some music that for some reason actually ends up making money...who gets the royalties? My engineer-self says "it's only fair the the folks who wrote and trained the AI get some of the royalties" but I'm 100% sure that would not happen. 
 

I haven't looked at the EULA details for ChatGPT or Bard, if there are any, but I imagine some publicly usable AIs may eventually have some form of GPL-style open source licensing specification, restricting who (if anyone) can profit off of the output of the program. Such licensing might alleviate, partly, the problem of reuse of existing music in the generation of new music: if nobody can profit from the generated music, maybe that could constitute a new form of fair use.

[KuruPrionz]

11 minutes ago, dmitch57 said:

There is a flip side to this question: if/when an AI generates some music that for some reason actually ends up making money...who gets the royalties? My engineer-self says "it's only fair the the folks who wrote and trained the AI get some of the royalties" but I'm 100% sure that would not happen. 
 

I haven't looked at the EULA details for ChatGPT or Bard, if there are any, but I imagine some publicly usable AIs may eventually have some form of GPL-style open source licensing specification, restricting who (if anyone) can profit off of the output of the program. Such licensing might alleviate, partly, the problem of reuse of existing music in the generation of new music: if nobody can profit from the generated music, maybe that could constitute a new form of fair use.

And it's only a matter of time before you can buy an affordable and awesome AI suite of tools for your own computer. 

Someone will code one and become rich, to the dismay of the online AI providers. 

[dmitch57]

7 minutes ago, The Real MC said:

Nothing illegal about lifting a copyrighted motif, whether a human or artificial intelligence does it.

What is illegal is selling an infringed copyright work for profit.

I don't think so. What is illegal is copying a copyrighted work. I rip a copy of a CD I bought and give you the copy for free; that is a copyright violation. My profit or lack thereof has nothing to do with it. 

[Anderton]

1 hour ago, The Real MC said:

Can you say DMCA?  I knew you could... The DMCA is the copyright holder's tool to shut down distribution channels of an infringed work.  Notice the words "distribution channels".  The authors of copyright law specifically left enforcement and litigation to be the responsibility of the copyright owner not the government.  The same is true of the DMCA - it does not publicly fund any litigation of copyright infringement, it only targets distribution channels and their owners if they do not comply.  Shut down distribution and you shut down illicit profit.

 

As you noted, the DMCA relates specifically to websites (takedown notices etc.) and primarily, its original purpose was to criminalize devices or services intended to circumvent DRM and other copyright control measures. But I don't think the example of Disney's AI creating a theme song that infringes is really addressed by the DMCA. Now, if Disney posts the song on their web site, and they can show that they shared it unintentionally, then they can take it down without liability. But what are they going to do - recall any DVDs or optical media they sold with the song? For Disney+, they'd need to re-edit and re-release the film without the theme song. The copyright owner wouldn't know the infringement existed until the movie came out, and by that time, it would be too late. Theaters (if the movie was going to have a theatrical run) would have already shown it, and made money from it.

 

Then there's the question of responsibility. True, no one at Disney decided to circumvent copyright. But they DID decide to use AI to create a song for them with commercial ramifications. So what happens next? Does Disney get dinged because they didn't do due diligence? Would the creators of the AI engine get dinged because they didn't build in a capability to compare what it generated against what already existed? Said engine could surely determine whether what it found was identical, but would it know that adding swing wasn't enough to avoid infringement? Or would it be enough?

 

For a company like Disney, it would be much less expensive and time-consuming to just pay off the copyright owner to go away. But once that starts happening, it's amazing how many lawyers are going to find similarities in certain songs...

 

I don't claim to have any answers. My concern is that the potential for unintended consequences with AI is huge, and problematic. Solutions intended to address the problems of the 1990s aren't going to cut it anymore.

[dmitch57]

12 minutes ago, Anderton said:

Solutions intended to address the problems of the 1990s aren't going to cut it anymore

Sheesh, those solution don't even address the current "problems" of making personal backup copies, or of ripping a CD so you can play it on your phone. There is case law addressing those issues...but actual legislated IP law is so far behind the times, it's scary. I don't have a lot of faith in the US congress coming up with solutions to these problems.

[David Emm]

"My ability to plagiarize is limited only by my faulty memory." ~ Ravel

[dmitch57]

39 minutes ago, The Real MC said:

Name an infringement case that went to court that alleged copying of a copyrighted work involving a single distributor and a single recipient.

Not a single recipient, but when Metallica sued Napster and a bunch of its users, nobody was making any money off the copies. The suit was strictly about illegal copies. 
 

But anyway, I wasn't talking about actual lawsuits or court cases. I was talking about the meaning of the word "illegal". Which I thought you were too. 🙂

[dmitch57]

Back to the OP...

 

I'm imaging a process for copyrighting AI-generated music which is similar to the labyrinthine process currently in place for applying for tech industry patents. With the patent system, you generally have to hire a team of lawyers who go through piles and piles of patents, patent applications, and publications comprising prior art, in preparation for writing the actual patent application. The Patent Office does a similar search after the patent is applied for. Prior art has a huge impact on determining whether something is new and patentable.

 

Similarly, I can see armies of lawyers and analysts and other minions who are employed by folks hoping to commercialize AI-generated music. These minions would use all sorts of tools - most likely including other AI - to determine if a newly generated riff/melody/soundtrack/whatever is sufficiently free of identifiable prior influence so as to be safe to use in a new movie/commercial/record. 

 

Then, the inevitable conflicts happen when someone claims an actionable influence on some new AI-generated music. Off to the courts, with cases somewhere between a patent battle and the "My Sweet Lord" IP case. The plaintiff would be the copyright owner of the original music. The defendant would be whatever corporation hired the team which cleared the new music and got the new copyright.

 

This all sounds super conducive to artistic creation... 🙂
 

[KenElevenShadows]

On 3/25/2023 at 10:41 PM, KuruPrionz said:

A good lawyer would skin the movie company alive. While you obviously cannot sue a computer and it doesn't have any money anyway, those who accepted the violation and took their chances with it could be on the hook with no real way to abate. 

 

 

I don't know which way this is going to go, as it creates a messy situation that will be debated for decades in and out of courts of law.

 

But perhaps some of the responsibility might actually land with the person who accepted the AI-generated music that has hooks that sound just like another song. Perhaps courts might view this using a similar logic to a scenario in which a writer who uses ChatGPT to generate an article that has libelous or erroneous information is held responsible. I don't know. But at some point, you would think that the end user has to be ultimately be held responsible for the content released.

[KuruPrionz]

5 minutes ago, KenElevenShadows said:

 

I don't know which way this is going to go, as it creates a messy situation that will be debated for decades in and out of courts of law.

 

But perhaps some of the responsibility might actually land with the person who accepted the AI-generated music that has hooks that sound just like another song. Perhaps courts might view this using a similar logic to a scenario in which a writer who uses ChatGPT to generate an article that has libelous or erroneous information is held responsible. I don't know. But at some point, you would think that the end user has to be ultimately be held responsible for the content released.

I would assume that if we were lawyers we would first target those who had money - ie film makers. 

Depending on results, perhaps the film makers could go after those who may or may not have a pot to piss in or a window to throw it out of, etc. 😇

[KenElevenShadows]

7 hours ago, KuruPrionz said:

I would assume that if we were lawyers we would first target those who had money - ie film makers. 

Depending on results, perhaps the film makers could go after those who may or may not have a pot to piss in or a window to throw it out of, etc. 😇

 

Film makers who are using music in their film would presumably have their lawyers draft contracts that state that the artist is the rightful copyright owner of the music they are creating. Unless it is a work for hire, this would almost assuredly be the case. And even with a work for hire, you would think that they would still negotiate a contract stating that the music is original music for which they own the copyright.

 

So if lawyers targeted film makers, the film makers would say, "Hey, we are not responsible. This contract here states that the artist is the lawful copyright owner. Go talk to them."

[KuruPrionz]

57 minutes ago, KenElevenShadows said:

 

Film makers who are using music in their film would presumably have their lawyers draft contracts that state that the artist is the rightful copyright owner of the music they are creating. Unless it is a work for hire, this would almost assuredly be the case. And even with a work for hire, you would think that they would still negotiate a contract stating that the music is original music for which they own the copyright.

 

So if lawyers targeted film makers, the film makers would say, "Hey, we are not responsible. This contract here states that the artist is the lawful copyright owner. Go talk to them."

Got it. Maybe some people will get hosed since lawyers are never cheap. 

[dmitch57]

1 hour ago, KenElevenShadows said:

So if lawyers targeted film makers, the film makers would say, "Hey, we are not responsible. This contract here states that the artist is the lawful copyright owner. Go talk to them."

Unless the filmmakers were big enough that they had their own AI to generate the music for their own films. Disney (for example) will be doing this sooner or later. The buck would have to stop at them - the filmmakers - so they would have done a fair amount of due diligence after the music was generated, and before it was placed in the movie....to make sure the generated music was sufficiently free of prior influences.  To guard against lawsuits. 

[Anderton]

52 minutes ago, dmitch57 said:

Unless the filmmakers were big enough that they had their own AI to generate the music for their own films.

 

I think that's what's going to happen. But that also means the entity with the deep pockets will be responsible, which when it comes to lawyers, is like tossing raw meat into the shallow end of a piranha pool.

 

Some of the times that I've been an expert witness, the negotiation ended up not being about who was right, but how much the planitiff was willing to be paid to go away. Of course, this didn't necessarily mean they weren't being infringed. But there were also patent trolls who knew that if they asked for the right amount, they'd be paid to go away because it would cost less than flown-blown litigation.

[KenElevenShadows]

2 hours ago, dmitch57 said:

Unless the filmmakers were big enough that they had their own AI to generate the music for their own films. Disney (for example) will be doing this sooner or later. The buck would have to stop at them - the filmmakers - so they would have done a fair amount of due diligence after the music was generated, and before it was placed in the movie....to make sure the generated music was sufficiently free of prior influences.  To guard against lawsuits. 

 

Very true. I was simply responding to the other post that was separating the two. But the larger filmmakers are largely going to be doing this in-house.

[zeronyne]

There's been some more-than-thought experiments in this regard. One team algorithmically generated every possible combination of notes (within a restricted range, obviously) into melodies and copyrighted all of them. Adam Neely had a video about it years ago. I know that there are practical, political, and logistical challenges to that approach, but I think all of us can see what the point of that was.

I think in the near term, this isn't going to be an issue. There will be a few misguided test cases that completely miss the point, but once there is money involved, they'll figure out something tolerable. There's too much money of the table for everyone to keep fighting about it.

[Nowarezman]

If AI at some point is perceived as having a serious impact on unemployment, it's going to hit the fan in a big way.  

 

But in uncountable ways, AI will inevitably creep into businesses and schools and the professions and the arts and government, the military, the flow of goods and services, manufacturing, service provisions of all stripes, education, on and on and on.  We will be arguing about whether to do something about it long after nothing can be done about it short of unthinkably brutal tactics. 

 

I'm already in a funk thinking about AI,  and it hasn't gotten serious yet in a big way.   I am by nature a positive, yes/yes sort of person.  But this topic I find depressing.  Second only to climate change.  It seems the most complex challenge to society is coming at a time that society is at a remarkable standstill with regard to dealing with large, encompassing problems.  Feels like hairline cracks in the structure of society are slowly but massively proliferating and widening, and ominous rumbles emanate from the ground everywhere.  

 

On the other hand, there are lots of bluebonnets in the Texas Hill Country this year!

 

nat