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To clear up questions about the copyrightability of AI in music, the U.S. Copyright Office (USCO) recently signaled that copyrighting songs is about to get a lot more complicated.
Last week the USCO released guidance on the copyright-ability of works made using AI, saying that a work that is a combination of both AI generation and human creation can be eligible for copyright protection, with any purely AI made portions carved out. Essentially, it takes the position that copyright only extends to the portions of the work that are attributable to human authorship.
This sounds logical however often such clear boundaries do not exist in music. The USCO acknowledges this by leaving space for copyrighting AI-generated content if it gave form to an author’s “original mental conception,” as opposed to being a purely “mechanical reproduction.”
Giving form to an idea is something songwriters are familiar with. Whether for writer’s block, inspiration, or organization, many if not most current creators use some form of AI tools to a certain extent, and how that informs their process often is not clearly defined.
To address this, the policy caveat is that the copyrightability of any given work will depend on its specific circumstances and will need to be determined on a case-by-case basis. It’s worth noting copyright does not protect ideas, only expression, and these distinctions will no doubt be complex when addressed in practice. Specifically, it states,
“This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image, and a musical artist may use effects such as guitar pedals when creating a sound recording. In each case, what matters is the extent to which the human had creative control over the work’s expression and ‘‘actually formed’’ the traditional elements of authorship.”
The USCO has been engaging with the relevant parties on this topic for some time, and there is great pressure to chart the path on AI as platforms become increasing advanced. Across the art world, AI is already pushing boundaries.
This most recent policy guidance also likely was prompted by a pending lawsuit on the question of whether any human authorship is required for copyrightability. The case was brought against the Copyright Office by an AI developer whose registration for a visual work of art was rejected since he listed AI as the author.
The lawsuit argues that the Copyright Act does not require human authorship. While it is true that the Copyright Act does not explicitly include the word human authorship and instead refers to “original works of authorship,” the Copyright Office’s decision not to grant the copyright is bolstered by decades of caselaw that interpret “author” to mean “human.” A few years ago a selfie taken by a monkey was deemed ineligible for copyright protection on the basis that the monkey was not a human author.
The USCO has authority to prescribe application requirements and to “establish regulations not inconsistent with law for the administration of the functions and duties made the responsibility of the Register.” (17 U.S.C. 702). However, the Copyright Office will be subject to the courts ruling on this case.
As far as the current rule limiting copyrightability to human expression goes, the exact amount of human involvement necessary to merit copyright protection in a work created using AI remains to be seen. This untested line raises significant questions for the music industry and the foreseeable future of AI-assisted songwriting.
The primary example we have from the Copyright Office is fairly straightforward, however it is not a song. An author submitted an application for registration of a comic book where the text was written by the human author but the images were generated by AI, through a tool called Midjourney.
The Copyright Office determined that while the work was copyrightable, the copyright only extended to the human-authored text, and to the human authorship involved in the selection and arrangement of the images but did not extend to the AI-generated images themselves.
Clearly a comic book allows for easy differentiation between images and text. That may be analogous to, for example, a melody created purely by AI combined with lyrics created purely by a human or vice versa. In cases like this, foreseeable questions would arise around remixing and sampling—is it fair game to remix and sample portions of a song that were created by AI and excluded from copyright protection?
While it’s easier to discern how the Copyright Office will rule on some hypotheticals, it’s extremely unclear how these lines will be drawn when the human and AI contributions are more intertwined.
AI is often used as a collaborative partner in the creative process. For example, a human songwriter might use an AI tool to generate a midi file containing a few bars of melody, or a text-generator to suggest few stanzas of lyrics, and then substantially edit and revise the AI-generated content and combine it with entirely original lines and melodies from their own imagination.
In that situation, it is unclear how the Copyright Office would begin to distinguish between the human authorship and AI authorship involved. At what point, if any, of editing and changing lyrics generated by AI would they become lyrics generated by a person? What determines significant enough change to be considered original? How will registrars investigate these questions when reviewing a copyright application? The USCO advises,
“applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work. As contemplated by the Copyright Act, such disclosures are ‘‘information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright.’”
It’s clear how copyright registration could immediately become more complicated and time consuming with these new considerations. One must question whether the USCO has the manpower and resources to take on what is in some ways an entirely new evaluation process for any registrations involving AI.
And aside from registration, these big questions will shape future licensing practices—is a license for a work that is only partially copyrightable worth the same as a license for a fully copyrighted work? What about a work that doesn’t have enough human contribution and doesn’t receive copyright protection—is it free to use, or stream? How will this affect royalty administration?
Beyond the ability to differentiate what is AI and what is human created, there are even larger questions looming around this space. AI works by continually ingesting, or copying, works across the Internet to “teach” its platform to create. To what extent does ingestion need to be generally licensed?
Whether they like it or not, the work of human creators is essentially “training” the computer programs trying to replace them, or some would argue, assist them. AI will continue to be integrated into the creative process, and in an era where the value of human-created music continues to be challenged, it is crucial that the music industry decides how to approach these issues in a way that ultimately ensures the long-term value and quality of human-made songs. After all, there would be no AI generated music without them.
David Israelite is the President & CEO of the National Music Publishers’ Association (NMPA). NMPA is the trade association representing American music publishers and their songwriting partners.
It is time for all music industry professional to reflect on the ways in which our industry has perpetuated a system that benefits a select few at the expense of marginalized communities. It is time for us to embrace a new paradigm, one that values skill and merit over relationships and aristocratic privilege.
In today’s rapidly changing world, the music industry finds itself on the brink of disruption. We must recognize that our long-standing history of exploiting disenfranchised groups is incompatible with our espoused values of social justice and inclusivity. The hesitance to be proactive and embrace change is no longer acceptable. The data clearly shows the consequences of our delayed reaction. We must act now to ensure that the pendulum swings in the right direction.
Our participation in an aristocracy-based system allows white men with access to rights ownership to hijack black and brown stories. This approach is no longer effective in today’s music economy. As independent artist services have grown, ownership has increasingly been placed in the hands of artists, and a focus on “artist-preneurship” has emerged. This growth in the independent sector has led to decentralized systems that cut out middlemen and gatekeepers, promoting transparency and accountability.
We must recognize that the music industry is no longer a playground for profit-driven oligarchs who lack leadership skills and contribute to revolving door politics, loss of job fulfillment, and opportunities. In every other industry, a minimum level of skill, education, or experience is required to advance. It is essential to evaluate how the music industry holds its leaders accountable.
Aristocracy drives a wedge between culture and progression, and limited access to BIPOC at both the creative and executive levels makes the industry slow to change, perpetuating a “boys club” culture. The top 1% of the industry often rely on DEI consultants to meet an “optics quota,” promoting performative change rather than real progress. We must recognize that diversity and inclusion are not just buzzwords. They are essential for driving revenue and ensuring long-term success.
The statistics show that black and brown stories are highly valued in the music industry, with 48% of all artists being from underrepresented groups and Hip-Hop and R&B being the top-streamed genres. By embracing diversity and promoting inclusion, the industry can tap into a vast market of music consumers who are eager to hear authentic and diverse voices. It is not only the right thing to do, but it is also a sound business strategy that can result in increased revenue and success for music companies.
Despite the economic disadvantages they face, women of color are a value add, possessing a strong educational background, resourcefulness, and fundamental understanding of the music business. In producing the first research study on intersectionality in the music business, ‘A Seat at the Table: A Perspective on Women of Color in the Music Business’ (2022), we found that 87% of all WOC in the music biz have earned at least a Bachelor’s or higher degree of education, yet they remain the most underpaid demographic. The majority of WOC in the music business enter into student loan debt, while also entering into the music business via unpaid internships. Over 86% were hired without direct relationships or industry connections. Imagine how much progress would be made if resources were properly invested.
Therefore, I urge us all to shift from an aristocratic hierarchy to a meritocratic one. By valuing skill and merit over relationships and privilege, we can ensure true diversity, equity and inclusion in the music industry. We must commit to deliberate action, such as hiring more BIPOC at the senior level, committing to paid internships, and funding black-owned music businesses. These steps are crucial towards creating a more equitable and profitable music industry.
Let us embrace the future with open hearts and minds, committed to creating a music industry that is truly inclusive and reflects the diversity of our world.
Janishia Jones is the CEO and founder of Fresh N Sassy Productions. Earlier this year, she launched the music tech consultancy company ENCORE Music Tech Solutions.
Dry January seems like it’s everywhere, doesn’t it? At the top of every new year, the subject dominates social media posts and conversations with friends over mocktails. In 2022, an estimated 35% of Americans abstained from alcohol for the month of January — an increase from 21% in 2019.
After Dry January is over, many people will pour a drink in celebration of their achievement, while others may choose to make abstaining from alcohol a more permanent lifestyle. But for many Americans, the problem of addiction is more serious. More than 14 million adults in the United States have alcohol use disorder, and each year, we lose nearly 100,000 people to alcohol-related causes.
The music industry — known for “sex, drugs, and rock ‘n’ roll” — is among those hardest hit. A 2020 research project involving Tulane University found that a staggering 56% of music industry professionals cite problematic substance use. And we’re all familiar with the countless stories of artists who have tragically lost their lives or felt like they couldn’t return to the stage as they battled their addiction.
Now, the music industry is beginning to take the lead in supporting people in addiction recovery through community and empowerment, with musicians, fans, industry executives and crew showing what’s possible with innovative new solutions that go beyond the traditional recovery model.
Sadly, conventional approaches to addiction are not solving the problem at the same pace it’s growing. Despite the best of intentions, these traditional approaches can lead to feelings of shame and exclusion; many people in recovery say treatment programs can be too much sitting around and talking about their weaknesses. They can also feel isolating, and loneliness is one of the worst problems someone struggling with addiction can face. Because of this, there’s a negative stigma surrounding people in recovery.
But Dry January shows us something different. Instead of fostering isolation, it creates community, and it feels empowering because “everybody’s doing it,” It’s also inclusive of people who have challenges with substance use as well as those who don’t. There’s no demarcation: “We’re all in this together.” You feel freer to plan fun, sober activities with others. And whether you’re out socially or at a work event, you don’t have to make excuses for not drinking. People openly share how good they feel and how they’re gaining from it, not what they’re giving up.
It begs the question: What if this was how we supported people in recovery all year round? In music, at least, it’s a question that’s now being answered by a number of artists, companies and organizations.
The Warped Tour provided mental health and sobriety support on the road throughout, including bringing along a sober coach as a guide to artists and crew in recovery. This not only allowed the tour to help those who were trying to stay sober but also offered services to those whose habits were starting to affect their well-being before it became a larger issue.
Last year, Danny Wimmer Presents joined forces with 1 Million Strong, an initiative driven by Stand Together and The Phoenix (one of the most innovative recovery programs in the country) to create sober-supportive spaces or “wellness retreats” — for people in recovery and others — at last year’s Bourbon & Beyond Festival and the Louder Than Life Festival. In October, The Chainsmokers did the same at their concert at UC Berkeley’s Greek Theater.
This isn’t about turning the industry sober. It’s about giving people a better path to truly living in recovery so they can bring their best selves to music — allowing everyone to benefit from their unique contributions.
It’s clear that people across the music industry see the urgent need for something new. And perhaps it’s not surprising to see how the industry is uniquely able to offer it.
Just like the best aspects of Dry January, perhaps there’s no greater force on Earth than music at fighting isolation with community, overcoming shame by tapping into inner strength and beating stigma with self-expression and pride.
Colette Weintraub is the head of Stand Together Music, working alongside the music industry to co-create solutions around addiction recovery, education, free speech, and ending the war on drugs.
Kevin Lyman, best known as the creator of the Vans Warped Tour, has shaped youth culture for over 40 years with his award-winning expertise in the music and entertainment industry as well as business and philanthropic ventures.
We must do more to protect Black women in our culture.
Following recent remarks against Rihanna and the multitude of abuse Megan Thee Stallion has faced, it behooves me to speak up about the gross misogynistic, catty attitudes that these — and so many other — women deal with regularly. Women are being exploited in the social media vacuum, and Black women in particular are being besieged across the internet, television and the real world. Worst of all, they are being and demeaned by Black men. What kind of brothers are we to treat our sisters this way?
Black women often experience different forms of hatred disguised as an opinion. Let’s take the most recent camouflage of what ESPN loudmouth Stephen A. Smith said about the icon Ms. Rihanna Fenty. Her sincere supporters and dedicated fans have been waiting over six years for her to return to music, yet when Smith was on TV and asked about Rihanna returning and performing at the Super Bowl, he felt compelled to answer such a softball question with an unwarranted comparison: “She ain’t Beyoncé.”
This was a cowardly action. It was done in very poor taste with no type of decorum, blatantly disrespecting Ms. Rihanna as she preps for the Super Bowl halftime show — the biggest stage in the world. She and Beyoncé are both iconic in their own right. So why the need to compare these Black female artists and entrepreneurs? Who wastes their breath debating whether Michael Jackson is better than Prince? They are two different artists, but equally pop culture icons.
Smith later tried to clean up his mess with an apology. But his statement of disrespect is cemented on the internet, while too many of us have already moved on. Even if we do not forgive, we should not be so quick to forget. There are a lot of cowards who hide behind their platforms and feel compelled to say something — anything — to stay relevant. So, they come at our Black women with no regard for their feelings or significance to our culture. But what about the rest of us? What’s being done to curb such behavior? Why is it that Black men are mostly saying and doing nothing? It’s unbelievable.
Consider also Megan The Stallion, who was forced to face malicious attacks against her character and her truth that she was shot — all while she herself was trying to digest and process the whole trauma. Megan has been forced to endure hatred and vicious ridicule. All of this could have easily coerced her into staying silent — a form of violence in itself. Sadly, here’s another example of a Black woman who wasn’t protected or supported by the multitude of real Black men. That is unequivocally egregious and unacceptable.
Social media has connected us but also disconnected us from life in a vain, disruptive and distracted way. It’s The Matrix and we can’t unplug. If you’re not on social media, you are uninformed; if you are on social media, you’re misinformed! Whether it’s in the comments section or people speaking out on their own, the most profound direct attacks are often targeted at Black women. As if Black women have not been to hell and back already. We need to celebrate and protect our Black women at all costs. Yet Black men with a voice or platform deliberately go out of their way to demean them. Wading through all the attacks, buffoonery and coonery is exhausting and demoralizing. What’s happening to Black power and pride?
We must eradicate all this hatred and torture and it’s imperative that we step up to improve cultural conditions for not just high-profile celebrities but all Black women. Such demeaning and hatred can spark real-life violence. In 2020, five Black women and girls were murdered every day in the United States, according to an investigation by The Guardian released last summer. Beyond physical violence, these women’s mental health also must be preserved.
Black women have been and still are fighting for themselves. The rest of us — particularly Black men — however, need to step up and join them. Let’s show how unacceptable this kind of behavior is: Empower and support the positive female voices out there, and next time Stephen A. Smith or another like him baselessly degrades our women, those of us with a platform of influence ought to speak up, hold him responsible and make him take accountability. We do it four our Black mothers, our Black wives, our Black daughters, our Black friends and we do it for ourselves. Because, by doing so, we will be protecting our culture as well.
Ameer Sudan is CEO/chairman of Silvaback Productions, Silvaback Management and Hitnation Publishing. He is also a strategic mogul adviser to clients in the entertainment industry.
Lincoln said, “A house divided against itself cannot stand.” It was true then and it’s true today — on great issues like politics and governance and, closer to home, for America’s music community.
We know the costs of division and mistrust. During the Napster era, we lost nearly half the revenue from recorded music. Working together over the last 10 years, we’ve built a robust and thriving streaming economy well on its way to recovering what was lost. But we still have a long way to go.
From powerful platforms that undervalue music to short-sighted attacks on creators’ rights around the world to abuses of new technologies that attack the very idea of human authorship — it’s more important than ever that we unite to face new challenges in 2023 and beyond.
And we know how to do it.
In recent years, the music industry has joined together over and over again to accomplish great things and move music forward.
In 2018, we enacted “once-in-a-generation” Music Modernization Act legislation here in the U.S. to update streaming rights for songwriters and ensure legacy artists are finally paid. We are now working together to protect artists’ free expression through bills like California’s Decriminalizing Artistic Expression Act and the federal RAP Act.
In 2021, we saw a landmark Copyright Directive in the European Union to strengthen music markets and fair pay for artists on all platforms.
Earlier this year, all three major record labels decided to voluntarily disregard unrecouped balances owed by certain legacy performers ensuring these great artists could immediately share in streaming royalties.
And of course, we supported one another through a devastating pandemic, working to sustain small venues and develop public policies and relief programs to reach working artists and songwriters.
Those were all major steps, but new challenges keep coming — including some designed to stoke division and turn our community against itself. Fortunately, we know from our many recent achievements that the music community — and music itself — does best when we stick together in the face of common challenges. Especially at a time when American music is already thriving — across formats, styles, and all around the world with competition, creativity and choice all stronger than ever.
Artists continued to find new ways to reach more fans than ever with do-it-yourself recording and distribution, while independent labels have become the fastest-growing sector of the market. In a shrinking online world where language and geography are no longer barriers, an artist’s potential audience has become almost limitless.
In this dynamic new music business, success is more broadly shared than ever, with growing opportunities and revenues for indie artists and the very top acts taking a smaller share of revenues today than during the CD era. Globally, out of a $10 per month streaming subscription, artists receive roughly $1.35 while labels net $0.55 once the cost of spending to drive artists’ success is accounted for. Meanwhile, the share of revenues going to publishers and songwriters has nearly doubled in the streaming era.
It’s a powerful testament to what all of us who make up the music community have built together.
It is success borne first from the blood, sweat and tears of America’s creators — artists, songwriters, session players and the legions of those who support and distribute music — producers, publishers, road crews and venue operators, tour support, managers, digital services and more.
It is also the product of round-the-clock drive and commitment by the people working at record labels– music lovers who wake up every day fighting for the artists they work with and helping them achieve their creative dreams and commercial goals. From marketing and promotion to brand and design to social media campaigns to wellness and health to business and back office services, labels today do more than ever to support artists and position them to break new ground and thrive.
The labels that make up the RIAA are committed to a future of continued shared growth. We are determined to keep pushing for even more positive change. And we will work every day in this new year to unite our music community with forward-looking policies and goals that benefit artists, songwriters and fans as well as rightsholders and music services.
That means standing together and ensuring creators get full value for their work on every platform, service, game, fitness app and anywhere else it is used — from AM/FM radio to the metaverse. It also means building on shared commitments to diversity, wellness, and equality — both inside and outside the recording studio and across our entire community.
Additionally, it means presenting a united front when tackling the next generation of challenges, including artificial intelligence, where artists, songwriters, labels and publishers have an immense and shared interest in establishing responsible rules of the road that value human authorship and creativity. Also important is fighting against new forms of music piracy and other efforts to undermine the creative economy, from stream ripping to stream manipulation to pre-release leaks that suck the economic value out of the most seminal times in an artist’s career.
All of us who make up this community are bound together by a shared love of music — and a shared commitment to the people who create, distribute, and listen to it.
In 2023, let’s work — together — to turn those values into concrete action that builds a rich and lasting music future for us all.
Mitch Glazier is the Chairman and CEO of the Recording Industry Association of America (RIAA), the trade organization that supports and promotes the creative and financial vitality of the recorded major music companies.
Whenever I tell someone that recording artists aren’t paid when their songs are played on AM/FM radio, they are surprised. Yet, it’s true: not a single performer has ever been paid a performance royalty by American broadcasters for analog radio.
Unfortunately, that’s only half the story. When U.S. broadcasters, including iHeartMedia, Audacy, Cumulus Media, and others, refuse to pay for AM/FM radio plays, it is a double whammy. First, it denies thousands of hard-working Americans the full ability to make a living from their craft.
Second, this denial is used as an excuse by many countries around the world to withhold payments to U.S. artists when their music is played overseas. European countries typically pay royalties to foreign artists, but some use U.S. broadcasters’ refusal to pay for AM/FM radio plays as an excuse for denying those royalties to American artists. Given that American music is the most popular in the world, this amounts to hundreds of millions of dollars in lost income for American creators – every year.
Think that’s bad? It gets even worse. Some countries (such as France) do collect royalties on behalf of Americans, but that money never gets to the rightful recipients in the United States. Instead, they divert it towards their local artists or to fund local “cultural” programs. SoundExchange and others are currently in French courts trying to remedy this egregious practice.
Fortunately, some progress is being made. In 2020, the European Court of Justice (ECJ) ruled that all artists, regardless of nationality, should be paid when their music is played in Europe. They cite a principle called “National Treatment,” in which a country must treat foreigners with the same laws they treat their own citizens. It’s an important principle: imagine if the United States denied a foreign national the right to a fair trial simply because their home country doesn’t provide those protections.
In reaction to the ECJ decision, France and others are seeking to limit its impact so they can keep diverting royalties away from American artists for their own cultural funds. The Fair Trade of Music coalition is fighting to ensure that Europe does the right thing and treats artists equally, regardless of nationality.
This battle to protect American interests in Europe has been fought for a while, but the problem could be solved instantly if Congress passed the American Music Fairness Act, legislation to finally grant recording artists a performance right for AM/FM. The notion of paying artists for radio play already exists in the rest of the world and also exists in the U.S. for streaming services (such as Spotify or Sirius XM). The fact that the House Judiciary Committee is expected to consider the legislation on Wednesday is a sign that it’s gaining momentum as Congress completes its work. The legislation lays out a fair approach: it requires billion-dollar corporations to pay their fair share for music. It also protects small broadcasters and college radio stations that would have to pay (at most) only $500 a year (less than $2 per day). The smallest of broadcasters are capped at $10 a year.
Corporate broadcasters argue that a “mutually beneficial relationship” exists between AM/FM radio and music creators. Yet their actions belie that claim, as they spend millions to fight this legislation and avoid sharing the billions of dollars they make in advertising from music. In the past year, the NAB and iHeartMedia have spent over $11 million in lobbying alone. Broadcasters are even using their own federally-granted airwaves to run ads opposing the legislation while ignoring calls to give artists equal time to run their own ads. I guess it’s too dangerous for listeners to hear both sides of the story.
It’s important for Congress to act now. The House Judiciary Committee is considering the bill this week. With the passage of the American Music Fairness Act, artists would finally get paid for their music being played on AM/FM radio in the U.S., and it would remove the excuse for other countries to withhold their royalties from Americans. By recognizing the value of their work here at home, the United States can unlock hundreds of millions of overseas dollars for artists.
Most importantly, it’s simply the right thing to do.
Michael Huppe is president and CEO of SoundExchange.