We’ve Been Warned About Ai and Music for over 50 Years, but No One’s Prepared

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From The Verge:

AI is capable of making music, but does that make AI an artist? As AI begins to reshape how music is made, our legal systems are going to be confronted with some messy questions regarding authorship. Do AI algorithms create their own work, or is it the humans behind them? What happens if AI software trained solely on Beyoncé creates a track that sounds just like her? “I won’t mince words,” says Jonathan Bailey, CTO of iZotope. “This is a total legal c******.”

The word “human” does not appear at all in US copyright law, and there’s not much existing litigation around the word’s absence. This has created a giant gray area and left AI’s place in copyright unclear. It also means the law doesn’t account for AI’s unique abilities, like its potential to work endlessly and mimic the sound of a specific artist. Depending on how legal decisions shake out, AI systems could become a valuable tool to assist creativity, a nuisance ripping off hard-working human musicians, or both.

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Artists already face the possibility of AI being used to mimic their style, and current copyright law may allow it. Say an AI system is trained exclusively on Beyoncé’s music. “A Botyoncé, if you will, or BeyoncAI,” says Meredith Rose, policy counsel at Public Knowledge. If that system then makes music that sounds like Beyoncé, is Beyoncé owed anything? Several legal experts believe the answer is “no.”

“There’s nothing legally requiring you to give her any profits from it unless you’re directly sampling,” Rose says. There’s room for debate, she says, over whether this is good for musicians. “I think courts and our general instinct would say, ‘Well, if an algorithm is only fed Beyoncé songs and the output is a piece of music, it’s a robot. It clearly couldn’t have added anything to this, and there’s nothing original there.’”

Law is generally reluctant to protect things “in the style of,” as musicians are influenced by other musicians all the time, says Chris Mammen, partner at Womble Bond Dickinson. “Should the original artist whose style is being used to train an AI be allowed to have any [intellectual property] rights in the resulting recording? The traditional answer may well be ‘no,’” Mammen says, “because the resulting work is not an original work of authorship by that artist.”

For there to be a copyright issue, the AI program would have to create a song that sounds like an already existing song. It could also be an issue if an AI-created work were marketed as sounding like a particular artist without that artist’s consent, in which case, it could violate persona or trademark protections, Rose says.

“It’s not about Beyoncé’s general output. It’s about one work at a time,” says Edward Klaris, managing partner at Klaris Law. The AI-made track couldn’t just sound like Beyoncé, in general, it would have to sound like a specific song she made. “If that occurred,” says Klaris, “I think there’s a pretty good case for copyright infringement.”

Directly training an AI on a particular artist could lead to other legal issues, though. Entertainment lawyer Jeff Becker of Swanson, Martin & Bell, says an AI program’s creator could potentially violate a copyright owner’s exclusive rights to reproduce their work and create derivative works based upon the original material. “If an AI company copies and imports a copyrightable song into its computer system to train it to sound like a particular artist,” says Becker, “I see several potential issues that could exist.”

It’s not even clear whether AI can legally be trained on copyrighted music in the first place. When you purchase a song, Mammen asks, are you also purchasing the right to use its audio as AI training data? Several of the experts The Verge spoke to for this piece say there isn’t a good answer to that question.

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Even if an AI system did closely mimic an artist’s sound, an artist might have trouble proving the AI was designed to mimic them, says Aimonetti. With copyright, you have to prove the infringing author was reasonably exposed to the work they’re accused of ripping off. If a copyright claim were filed against a musical work made by an AI, how could anyone prove an algorithm was trained on the song or artist it allegedly infringes on? It’s not an easy task to reverse engineer a neural network to see what songs it was fed because it’s “ultimately just a collection of numerical weights and a configuration,” says Bailey.

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Copyright law will also have to contend with the bigger issue of authorship. That is, can an AI system claim legal authorship of the music it produces, or does that belong to the humans who created the software?

Arguments about whether code can be the author of a musical work in the US are over 50 years old. In 1965, the Copyright Office brought up this concern in its annual report under a section titled “Problems Arising From Computer Technology.” The report says the office had already received one application for a musical composition made by a computer, and it “is certain that both the number of works proximately produced or ‘written’ by computers and the problems of the Copyright Office in this area will increase.”

Despite this early warning flag, current US copyright law is still vague when discussing authorship of works that weren’t created by humans. For now, lawyers are still grappling with the implications of one ruling, in particular, which doesn’t involve computers or AI at all: it’s about a monkey taking a selfie.

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If a monkey can’t own a copyright, it goes, then what about a song created entirely by AI? Would authorship go to the humans who created the AI, the AI itself, or the public domain?

The heart of this problem is that current US copyright law never differentiates between humans and non-humans. But, the Compendium of US Copyright Office Practices actually spends a lot of time talking about how humanness is a requirement for being considered a legal author. In an internal staff guidebook for the Copyright Office, the Compendium has a section titled, “The Human Authorship Requirement.” There’s also a separate bit to address copyright when a work lacks a human author. According to the Compendium, plants can’t be authors. Neither can supernatural beings or “works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

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Recently, the developers behind Endel, an app that uses AI to generate reactive, personalized “soundscapes,” signed a distribution deal with Warner Music. As part of the contract, Warner needed to know how to credit each track in order to register the copyrights. The company was initially stumped with what to list for “songwriter,” as it used AI to generate all of the audio. Ultimately, founder Oleg Stavitsky told The Verge, the team decided to list all six employees at Endel as the songwriters for all 600 tracks. “I have songwriting credits,” said Stavitsky, “even though I don’t know how to write a song.”

It sounds like a ludicrous outcome, but preventing humans from obtaining copyright on AI-assisted works could limit our ability to use these algorithms for creative purposes. “If you accept AI-generated work as a new form of art and take away the intellectual property rights of the person who created the algorithm,” says Klaris, “you’ve basically said, ‘you’re out,’ and take away their incentive to create.”

Link to the rest at The Verge

PG thinks the potential problems discussed in the OP raise hypothetical questions that most courts will not find terribly challenging.

The monkey selfie case was resolved when the courts held that only humans can own copyrights. Unless Congress changes the law to provide for copyrights to be owned by species other than humans or, per the OP, by machines, a person or persons will own the copyright.

Did anyone claim the manufacturer of the camera owned a copyright to the monkey selfie the camera produced? Of course not. No more than the monkey did.

Additionally, even a very complex machine requires humans in order to create music. A computer program can be protected by copyright with the creator of the program owning the copyright.

When Mrs. PG uses her computer to write a book, she is relying upon physical computer chips that include copyrighted code, a copyright-protected Microsoft operating system, a copyright-protected program to provide a user interface to the system (Windows) and MS Word as a copyright-protected wordprocessing program. While we take this for granted as a simple foundation, there is a very large amount of highly-sophisticated and valuable intellectual property that is necessary for Mrs. PG to create an electronic manuscript that she publishes with Amazon.

Who is the creator of Mrs. PG’s book? Mrs. PG, of course. When the Copyright Office issues Mrs. PG a certificate of copyright for the book, that copyright will give Mrs. PG exclusive rights to the product produced by the process of her fingers pressing keys on a keyboard which begins a process that causes electronic signals to pass through all this proprietary hardware, firmware and software regardless of the necessary contributions of the underlying intellectual property. Of course, Mrs. PG won’t receive any rights to MS Word because she’s not the creator of MS Word.

On a simpler basis, when Hilary Hahn uses her violin, a musical composition by Mozart and a highly-sensitive audio recording system to create a recording of Violin Concerto No. 5, who owns the copyright to the recording? Ms. Hahn and any musicians who played instruments that are part of the recording.

The manufacturer of the AEA R92 ribbon microphone that converted the notes Ms. Hahn’s violin produced into complex electronic patterns in the form of digital representations of lengthy strings of numbers that then pass through amplifiers and a variety of other enormously sophisticated electronic devices which modify the lengthy strings of numbers in a wide variety of ways before those numbers are used to create proprietary patterns of electronic charges that are fixed as patterns of charged particles on a magnetic medium that is has been affixed to a disk or incorporated into a variety of electronic chips. (Yes, PG knows that sentence would be difficult to diagram.)

All of these hardware and software devices use proprietary intellectual property that belongs to people other than Ms. Hahn to accomplish their purposes. Ms. Hahn gains no copyright to the creations of the humans that created the hardware and software.

When someone wishes to listen to one of Ms. Hahn’s performances, a host of proprietary hardware and software that is both far from and near the listener accesses an electronic representation of Ms. Hahn’s performance, converts those electronic patterns into other numerical sequences that can be transmitted via the internet. When those numbers arrive at a location near to the listener, another set of hardware and software transform those complex electronic patterns back into vibrations that can be discerned by the human ear and the listener enjoys an audio experience akin to that which the audience at Ms. Hahn’s live performance enjoyed.

Ms. Hahn owns the copyright to her performance all the way through this lengthy chain. Although the violin actually produced the sound waves everyone loves to hear, the violin does not own the copyright.

PG submits that for copyright purposes, music created by a computer that includes AI software gives the AI no more ability to own a copyright than a stereo speaker has to the vibrations it produces to create the sound of Ms. Hahn’s performances in PG’s living room. Anything the AI system produces is the creations of the humans that caused the AI to create the music. The AI system is akin to Ms. Hahn’s violin, a non-human device that requires a creator’s input to produce unique musical sounds a human can hear.