Tag: Featured

Udio Answers Record Labels’ Complaint in Gen AI Lawsuit

As mentioned in my last post about the record labels’ lawsuits against GAI companies Suno and Udio, I will generally focus on the latter case. Both cases are almost identical, but because UMG et al. v. Ucharted Labs Inc. is at the SDNY (in the Second Circuit), those proceedings may be followed by other courts with considerably less copyright law precedent.

Udio’s answer filed on August 1 relies substantially on the premise that there is no cause of action whatsoever. The developer intends to show that “This lawsuit…seeks a genuinely unprecedented result: a ruling that it is actionable copyright infringement, not fair use, to have copied Plaintiffs’ works as part of the process of developing a new technology, even though the ultimate outputs of that new technology are themselves non-infringing.”

The list of counter-factual evidence Udio forecasts is too long to summarize, but the heart of its legal argument at this juncture is that 1) statute explicitly bars protection of musical style; 2) its AI training process entailed learning about music rather than copying protected sound recordings; and 3) because the product’s outputs are largely (or entirely) non-infringing, the purpose of producing “new” music is “what copyright law is designed to encourage, not prohibit.” The defendant also alleges that the recording industry’s claim is invalid on the basis that it has “misused copyright law” as part of a longstanding tradition of stifling competition. So, we have a ballgame that’s going into extra innings, and there will be plenty to say about the details as they emerge.

For now, I take issue with a few premises inherent to Udio’s answer. The first, which I have already stated a few times, is that even if every song output by Udio is “new” as a matter of law, the fact that none of these outputs is a work of “new authorship” as a matter of law militates against Udio’s implication that its product expands the purpose of copyright in general. And as stated, if that is correct, this should militate against a finding of fair use.

Second, despite the fact that Udio can and does point to uses of its product by creators who are plausibly engaged in authorship is, at best, a difficult basis on which to argue that the primary purpose of the product advances authorship. For one thing, the business model appears to be based largely on providing a music toy for consumers, not a tool for creators. Next, even where Udio may be used by professional music creators, the extent to which this fosters new authorship is a case-by-case consideration—one that relies on still-developing doctrine around the use of AI and authorship.

Third, even if Udio could prove allegations of relevant, anti-competitive practices among all the record labels (and I do not mean to suggest they can), the court must remain focused on the interests of individual creators—especially the next generation of music makers. The labels’ argument that the outputs compete with demand for existing sound recordings could be read as protectionism of existing catalogs but should be considered as to whether Udio competes with, or even obviates, the need for new human authorship in music. If so, this is categorically not what copyright law is designed to foster.

As stated in a few posts, and in comments to the Copyright Office, the unique challenge presented by GAI is that rather than pose a threat to the interests of specific authors’ works, it poses a potential threat to authorship itself. In this light, Professor Jane Ginsburg, in a new paper about the state of fair use jurisprudence, discusses two points that stand out for me at the moment. First, she describes the nature of a use-based fair use analysis (as applied in Warhol), which should not “untether” the fair use protection for a use other than the one narrowly ruled on by the court. Second, she notes that the courts may look beyond the “explicit direction” of the fair use statute to consider a factor like broad effect on authors’ careers—or even the potential for other unlawful uses like forgery or fraud.

With regard to use-based analysis, Ginsburg forecasts the uncertainty in adopting a per se fair use rule for machine learning because the consideration of fair use of the inputs may turn on the nature of the outputs. “If an AI system ingests multiple images of apples, including Cézanne’s depictions (let’s assume Cézanne’s works were still under copyright) its training data will enable the system to “know” both what an apple looks like, and what a Cézanne apple looks like. The fair use inquiry may depend on whether the user asks for an apple, or for a Cézanne apple,” Ginsburg writes.

Perhaps more directly applicable to the labels’ case against Udio, Ginsburg states in regard to image-generating AIs and fair use factor four, the effect of the use on market value:

… even under a solely work-based interpretation of section 107(4), one may observe that the wholesale copying of an artist’s works into training data in order to enable stylistically similar outputs jeopardizes not only the artist’s future employment or commissions, but also devalues the actual works copied, because the image-generation program can produce outputs that compete with already-created works as well.

That same rationale would seem to apply to the labels’ evidence that Udio can output sounds which are substantially similar to famous and protected sound recordings. So, while the defendant is correct to say that copyright does not protect style and that music production relies substantially on mixing and matching a finite combination of styles, arrangements, etc., that premise, both statutory and judicial, is derived from a copyright history that has only ever included human artists in “competition” with one another. Consequently, the courts have latitude to find that it is in fact the AI developer who is seeking the novel conclusion that its machine furthers the purpose of copyright law.

As I say, there will be plenty of details to follow and plenty of considerations to nerd out on, if one is so inclined. And for better or worse, I am so inclined. Stay tuned (pun intended).

No FAKES Act Introduced:  A Big Deal for Performing Artists and Everyone Else

No FAKES

Ever since the generative artificial intelligence (GAI) controversy began heating up, I’ve had several conversations with friends and colleagues who are voice actors and have had to disappoint them by repeating the fact that copyright law does not protect a person’s “likeness,” which includes one’s voice. And I’ve had similar conversations with colleagues focused on replication of likeness for the production of nonconsensual pornography. Nevertheless, the instinct makes sense—that the same human-centric principles that protect “authorship” might apply to the human’s likeness as well. Now, that basic sense of justice is articulated in a new bill introduced in the Senate.

Historically, the protection of likeness has been the subject of a relatively narrow area of law called the right of publicity (ROP), a common-law right with statutory provisions in 25 states—and narrow because ROP typically applies to the unauthorized use of celebrity likeness for commercial advertising purposes. But with the introduction of the No FAKES Act, Congress proposes to substantially change the protection of individual likeness in direct response to the capacity of GAI to conjure just about anything from fake news to fake performances by actors and musicians.

Introduced by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC), the acronym stands for Nurture Originals, Foster Art, and Keep Entertainment Safe Act. The heart of the bill establishes a property right in the likeness of any person, living or dead, and prohibits digital replication without permission. Similar to copyright rights, the “digital replication right” is vested in every individual regardless of whether one commercially exploits one’s own likeness, and the right is licensable and transferrable to heirs and assigns after death. Post-mortem rights would last 10 years but may be extended through a renewal and registration process administered by the U.S. Copyright Office if the right holder can show active and authorized public use of the voice or visual likeness.

The bill anticipates legitimate creative and newsworthy uses of unlicensed replication and exempts a broad range of uses for purposes like news, documentary, parody, etc. For a purpose to be “newsworthy,” the replicated individual must be the subject of the material created—e.g., a story about Hugh Jackman, not merely a replication of him “cast” for free in your film or commercial. Further, the bill explicitly states that creating a false impression that a given replication is an “authentic” recording of the individual will still trigger liability under the new law. Thus, the documentarian who uses a replication in a scene that looks like real surveillance or cellphone footage will probably need to identify that material as AI generated to avoid liability.

Remedies for violation of the digital replication right range from damage awards of $5,000 per depiction made by individuals or by online providers; and $25,000 per depiction by corporate entities other than online providers. Plaintiffs may also seek actual damages and attorney fees, and courts may award punitive damages where unlawful replications entail malice, fraud, or willful ignorance that the use violated the law.

Finally, taking a page from the Copyright Act, No FAKES contains a DMCA-like takedown provision for removal of content alleged to be an unlawful replication, and this provision includes maintenance by the Copyright Office of a database of “agents” to whom such complaints must be submitted. Likewise, familiar safe harbor provisions apply to both product developers and platforms that may, without the knowledge of these providers, be used to produce or distribute unlicensed replications.

Given Silicon Valley’s poor record for compliance with the DMCA for copyright owners, the takedown provisions in No FAKES naturally raises questions about everyday removal of material, which is often the first, if not the main, remedy non-performers will care about. Regardless, from my perspective, the bill both recognizes a wide range of abuses of GAI replication and exempts or limits liability for an appropriate range of legitimate, First Amendment protected uses of the technology.

More than a good start, No FAKES appears to draw from many lessons learned over the past 20+ years pitting human and creative rights against the predatory “progress” of Big Tech. I join the Human Artistry Campaign in endorsing this bill and encourage the full Senate to pass it as soon as possible.

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Senate Resolution asks Congress to Promise it will Keep Ignoring Musical Artists

musical artist

A little-known Senate resolution called the Local Radio Freedom Act (LRFA) is a clever move by whoever thought of it. It has no force of law but instead asks Congress to sign a pledge to enshrine an unfair and unfounded policy whereby terrestrial radio broadcasters shall never pay royalties to musical artists. Why? Because that’s how it’s always been.

In copyright law, music generally entails two separately protectable works—the underlying composition and the sound recording. Sound recordings are created by performing artists, and many compositions are naturally recorded by different artists at different times. Quintessential examples include Whitney Houston’s “I Will Always Love You,” and Jeff Buckley’s “Hallelujah,” originally written and performed by Dolly Parton and Leonard Cohen respectively. But if you ever turned up the radio when one of these cover songs came on, you might not know that although Parton and Cohen received royalties, Houston and Buckley did not.

This omission in the royalty scheme has come before Congress many times over many decades, and most Members know the status quo doesn’t make sense. Public performances of musical sound recordings pay artists royalties in every other commercial context, and in every democratic nation in the world, except for American terrestrial broadcast radio. But what is music radio without music?

The answer from the National Association of Broadcasters (NAB), and which is parroted in the LRFA, is that radio “promotes music,” and it does. But that’s only half the story. The other half is that music draws listeners to radio networks, which sell billions of dollars in advertising. Members of Congress know this is the only equitable consideration, yet to watch the last hearing on the issue, one might get the idea that the IP Subcommittee is still at the investigative stage of the decades’ old problem. If Congress seeks an equitable arrangement, it’s in the text of the American Music Fairness Act (AMFA), which was introduced in 2021.

For smaller stations (under $1.5 million/year), the AMFA caps royalties between $10/year to $500/year depending on revenue and status as either a public or private station. For larger stations and networks, rates would be set, as they for the rest of the performance licensing market, by the Copyright Royalty Board (CRB). Under the provisions of AMFA, the CRB must consider station size and revenue when setting rates and must also consider the station’s promotional value to recording artists. It’s hard to imagine how the deal gets more fair than that.

In addition to the half-true “promotion” argument, LRFA also echoes NAB talking points about the many free services radio stations provide to communities—from local news and emergency information to community outreach and charity. The implication is that these services would be curtailed or lost if they had to pay performer royalties, but this claim is neither supported nor well-reasoned. The stations’ good works continue while they pay talk show performers and news reporters—and no doubt, buy coffee and electricity, too.

Notably, when witness Eddie Harrell, Jr., representing the conglomerate Urban One, was asked at the hearing about the CRB, he did not seem to know what it is. This is not to mock Mr. Harrell, but instead to observe that if he was there to claim that his company cannot afford royalties but does not know about the rate-setting court, how does he know what he can’t afford? I think the answer is not that Mr. Harrell is careless or unable to do the homework, but that he anticipates not needing to present those numbers because the NAB has told him to expect that Congress will once again default to the tautological absurdity of “because that’s how it’s always been.”

Members of Congress know it is the large networks and conglomerates lobbying against AMFA and that they are not saying anything new in defense of the status quo. Because this issue has been on and off the table for about eighty years, any reference to further negotiation or study at this point is either a stall tactic or a pocket vote against AMFA. Meanwhile, signing onto LRFA is an explicit statement that, once again, the artists will be ignored right after their representatives tell them how much they are a treasured and respected part of the American tapestry.

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