Legal News
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Lizzo is now — legally speaking — 100% that b-tch.
In a decision issued Thursday (Feb. 2), a tribunal at the U.S. Patent and Trademark Office ruled that the superstar could register “100% That B-tch” as a federal trademark for clothing — meaning Lizzo now has exclusive rights to use the phrase on apparel.
Last year, the agency rejected Lizzo’s application for the trademark on the grounds that it was merely a commonplace “motivational phrase” aimed at “female empowerment,” not the kind of unique brand name that’s eligible for trademark protection.
But the USPTO’s Trademark Trial and Appeal Board (TTAB) overturned that ruling Thursday, saying that people who see the phrase on a t-shirt would immediately think of Lizzo.
“Consumers encountering ‘100% That B-tch’ on the specific types of clothing identified in the application ― even when offered by third parties ― associate the term with Lizzo and her music,” the appeals board wrote in its ruling.
Lizzo included the famed lyric — “I just took a DNA test, turns out I’m 100% that b-tch” — in her breakout smash hit “Truth Hurts,” but she didn’t actually didn’t come up with it herself. Instead, the singer pulled it from a popular internet meme, and she has since given its creator — Mina Lioness — songwriting credit on the hit track.
In refusing to give Lizzo the trademark, the USPTO had pointed out that backstory, arguing that even if the singer “popularized” the phrase, she was still not entitled to legally “appropriate” it for her own exclusive use on consumer goods.
But in Thursday’s decision, the Trademark Trial and Appeal Board disagreed — ruling that Lizzo had clearly “popularized the lyric” and elevated “a lesser known phrase” into “more memorable status.”
“Lizzo did not originate the expression she encountered as a Twitter meme,” the board wrote. “Nonetheless, lyrics from songs are more likely to be attributed to the artists who sing, rap or otherwise utter them, rather than the songwriters.”
An attorney for Lizzo did not immediately return a request for comment. The USPTO does not comment on rulings by the TTAB.
Read the entire decision here:
A federal appeals court has upheld Raphy Pina’s conviction on a federal gun charge, ruling that prosecutors had “overwhelming” evidence that the star music manager illegally owned firearms despite a previous felony conviction that barred him from doing so.
Lawyers for Pina (full name Rafael Antonio Pina-Nieves) had challenged the 2021 guilty verdict by arguing that the judge who oversaw the trial had allowed inadmissible testimony that had a “devastating impact” on the jury’s ability to fairly decide the case.
But in a decision Monday (Jan. 30), the U.S. Court of Appeals for the First Circuit said the government had provided “overwhelming” evidence that Pina owned guns. The unfair testimony might have been “highly prejudicial,” the court said, but added it was ultimately harmless because Pina likely would have been convicted without it.
Crucially, the appeals court cited a tapped phone call in which Pina himself was caught talking to an associate about a safe holding “my guns, rifles, bullets.” In that recorded call, the court said Pina “left no doubt” that the safe “contained guns and bullets that were his.”
A representative for Pina, a 44-year-old veteran music executive who manages Daddy Yankee, did not immediately return a request for comment on Wednesday.
Though it upheld one of Pina’s convictions, the appeals court overturned another one — ruling that prosecutors failed to prove that he had illegally owned an automatic weapon. The court said there was clear evidence that Pina owned the gun, but not that he had been aware that it had been illegally modified into a fully automatic weapon — a key requirement under the law.
“While Pina-Nieves does not dispute that the evidence suffices to show that he constructively possessed the weapon … we do not see how a rational juror could make the requisite inference that Pina-Nieves knew that this weapon had the characteristics of a machinegun,” the appeals court wrote, using Pina’s full surname.
A spokesperson for the U.S. Attorney’s Office in Puerto Rico did not return a request for comment on Wednesday.
Pina was indicted in August 2020, accused of possessing two handguns and hundreds of rounds of ammunition despite the fact that he was barred from doing so because of his 2016 conviction on federal fraud and money laundering charges. Prosecutors separately alleged that one of those guns was a Glock pistol that had been “modified to fire fully automatically with a single pull of the trigger” — making it an illegal automatic weapon.
Following a December trial in San Juan, Pina was convicted on both charges. In May, he was sentenced to 41 months (3 years and five months) in prison and ordered to pay a $150,000 sanction.
Despite Monday’s partial reversal, it’s unclear if Pina’s prison sentence will be reduced. When he was sentenced in May, the judge ruled that he was sentenced to the full 41 months “as to each count 1 and 2” but that the two sentences would be “served concurrently with each other.”
Read the entire decision here:
This is The Legal Beat, a weekly newsletter about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings, and all the fun stuff in between. This week: Rick Astley makes waves by suing an artist who impersonated his voice; an explanation of why Miley Cyrus doesn’t owe Bruno Mars a writing credit on her super-smash “Flowers”; UMG wins a big ruling in a proposed class action over termination rights; and much more.
THE BIG STORY: Will Rick Astley Dampen Pop’s Nostalgia Kick?
Popular culture is always cyclical, but we’re living though a particularly nostalgic age of pop music. Just look at the Hot 100 over the past year: Jack Harlow pulled from Fergie, David Guetta riffed on Eiffel 65, Latto made a song that sounded like Mariah Carey, and Beyonce heavily sampled from Robin S. But a new lawsuit could cast something of a pall on the throwback mania.
Rick Astley is suing Yung Gravy over the rapper’s breakout 2022 single “Betty (Get Money),” which borrowed from the singer’s iconic (and frequently-memed) “Never Gonna Give You Up.” The lawsuit claims the new track — an interpolation that sounded a whole lot like an outright sample — broke the law by impersonating Astley’s voice.
Filed by the same attorney (Richard Busch) who brought the blockbuster case over “Blurred Lines,” the new lawsuit has the potential to similarly scare producers about their current studio practices. As Billboard’s Kristin Robinson writes this week, re-recording classic tracks (rather than directly sampling them) has become more common for financial and creative reasons, but Astley’s accusations have some music executives questioning if it could “open the floodgates” to litigation when vocals are involved.
For a full breakdown of the Astley lawsuit, including access to all the actual court documents, go read our story here.
Other top stories this week…
MILEY DOESN’T OWE BRUNO ANYTHING – Miley Cyrus’ chart-topping new single, “Flowers,” includes clear references to Bruno Mars‘ own No. 1 hit from a decade earlier, “When I Was Your Man.” But as a copyright expert explained to me and Billboard‘s Andrew Unterberger this week, Miley doesn’t need to offer Bruno a credit for an “answer song” that merely riffs on a few lyrics but doesn’t borrow any musical elements.
ON TERMINATIONS, CLASS DISMISSED – A Manhattan federal judge ruled that hundreds of artists cannot join forces to sue Universal Music Group to regain control of their masters, saying the case raised big questions about “fairness” but that it was ill-suited for class-action litigation — a major blow to a closely-watched case over termination rights.
MANSON FACES NEW ABUSE CASE – Marilyn Manson reached a settlement with actress Esme Bianco to end one of the several sexual abuse lawsuits that he’s faced in recent years. But just days later, he was hit with a lawsuit from a new accuser who claims he groomed and sexually assaulted her during the early portion of his career when she was underage. Manson strongly denies the new allegations.
YE SAGA CONTINUES FOR GREENBERG – The Kanye West ordeal isn’t quite over for Greenberg Traurig, the prestigious law firm that’s so frustrated with their ex-client that it asked a judge to allow it to print newspaper ads announcing they’ve dropped him.
MISTRIAL IN T.I.’s TOY CASE – A high-profile intellectual property battle pitting T.I. and wife Tameka “Tiny” Harris against toymaker MGA over a line of dolls ended in a sudden mistrial after jurors heard “inflammatory” — and clearly inadmissible — video-taped testimony claiming the toy company “steals from African Americans.”
CARDI ACCUSER WANTS NEW TRIAL – Months after a jury rejected bizarre allegations that Cardi B “humiliated” a man by photoshopping his back tattoo onto the risqué cover of a 2016 mixtape, the guy wants a do-over. Kevin Brophy formally requested a new trial, arguing that the star “engaged in theatrics” on the witness stand and deprived him of a fair trial.
LIVE NATION WINS CASE OVER SHOOTING – A California appeals ruled that Live Nation is not legally responsible for a deadly 2014 shooting backstage at a Young Jeezy concert. The court said such an attack was not the kind of event that the concert giant should have seen coming — an important decision as Live Nation is facing similar claims over the backstage killing of Drakeo The Ruler in 2021.
BAD BUNNY COPYRIGHT SETTLEMENT – Bad Bunny reached a tentative agreement to end a lawsuit that accused the Puerto Rican superstar of lifting material for his 2020 track “Safaera” from three earlier songs by reggaeton pioneer DJ Playero.
R. KELLY STATE CHARGES DROPPED – Prosecutors in Illinois dropped all state-level sexual abuse charges against R. Kelly, citing “limited resources” and the fact that the disgraced singer has already been sentenced to 30 years in prison on federal convictions — and could soon be facing decades more in another federal case.
Priscilla Presley has filed legal documents disputing who oversees the estate of her late daughter Lisa Marie Presley.
The filing in Los Angeles Superior Court last week disputes the validity of a 2016 amendment to Lisa Marie Presley’s living trust that removed Priscilla Presley and a former business manager as trustees and replaced them with Lisa Marie Presley’s two oldest children, Riley Keough and Benjamin Keough, if she died or became incapacitated. Benjamin Keough died in 2020.
A living trust is a form of estate planning that allows a person to control their assets while alive, but have them distributed if they die. It serves the function of a will if a separate will is not filed, as appears to be the case with Lisa Marie Presley.
Lisa Marie Presley, a singer and the only child of Elvis Presley, died at a California hospital at age 54 on Jan. 12 after paramedics answered a 911 call reporting a woman in cardiac arrest. The Los Angeles County coroner is investigating, and has not yet given a cause of death. She was laid to rest at her family home, Graceland, on Jan. 22.
Priscilla Presley’s court filing says there are several issues that bring the living trust amendment’s authenticity into doubt.
The filing says they include a failure to notify Priscilla Presley of the change as required, a misspelling of Priscilla Presley’s name in a document supposedly signed by her daughter, an atypical signature from Lisa Marie Presley, and a lack of a witness or notarization. It asks a judge to declare the amendment invalid.
The filing says that the business manager, Barry Siegel, intended to resign, which according to the prior terms of the trust would leave Priscilla Presley, 77, and Riley Keough, 33, as co-trustees. A message seeking comment from representatives of Riley Keough was not immediately returned.
Lisa Marie Presley left three surviving children. In addition to Riley Keough, her daughter with first husband Danny Keough, she had 14-year-old twin daughters with her fourth husband, Michael Lockwood. Presley was declared divorced from Lockwood in 2021, but the two were still disputing finances in family court when she died.
Priscilla Presley’s filing is among the first of what are likely to be many legal maneuvers surrounding the estate of Lisa Marie Presley, the only heir of Elvis Presley. It is not clear, however, how much that estate is worth. A lawsuit Lisa Marie Presley filed in 2018 alleging Siegel had mismanaged the trust said it had been worth in excess of $100 million, but most of that had been depleted.
All state-level charges filed against R. Kelly in Cook County, Illinois, have been dropped, state attorney Kim Foxx announced at a press conference Monday (Jan. 30). Kelly is scheduled to appear in court on the indictments, which include 10 counts of aggravated criminal sexual abuse, on Tuesday morning.
In making the announcement, Foxx reiterated Kelly’s convictions in federal court in New York and Illinois to explain the prosecutors’ decision. “Due to the extensive sentences that these convictions hold, our office has decided not to continue to expend our limited resources and court time with the indictments that we previously charged Mr. Kelly [with],” she said.
In the New York federal case, Kelly was found guilty in September 2021 on all nine counts, including racketeering and sex trafficking; he was sentenced to 30 years in prison the following June. In September, he was convicted on three counts of child pornography in the Illinois federal case but acquitted of a conspiracy to obstruct justice charge that stemmed from an accusation that he’d fixed his state child pornography trial in 2008. Though he has not yet been sentenced in that case, he faces between 10 and 90 years in prison, according to Foxx.
Foxx — who previously revealed her own history as a victim of sexual abuse — grew visibly emotional during her time at the podium as she admitted that for the four victims in the state case, the outcome “may be disappointing. But I want to acknowledge that when we brought these charges forward, we brought them because we believed the allegations to be credible. And we believed that they deserved to have the opportunity to have the allegations heard.
“These women, both those who are named in our indictments and the women in New York and in the Northern District of Illinois, are to be commended for their bravery and their relentless pursuit of justice, no matter how long it took,” she continued.
Despite Foxx’s weighty and considered comments Monday, the announcement isn’t particularly surprising in light of Kelly’s dual convictions in federal court. After the disgraced singer was found guilty in the New York case, criminal defense attorney Isabelle A. Kirshner told Billboard that local jurisdictions in Illinois as well as Minnesota — where he still faces state charges — may choose to drop some of all of the charges in order to preserve resources.
Based on the New York sentence alone, Kelly won’t be eligible for release until he is around 80 years old.
[Trigger warning: this article contains descriptions of domestic violence, as well as sexual and physical abuse.]
Marilyn Manson is the subject of a new lawsuit alleging sexual misconduct. The suit by the woman — identified anonymously as “Jane Doe” in the filing — alleges that the singer, now 54, groomed and sexually assaulted the then-underage girl during the early portion of his career.
Manson (born Brian Warner) is named as a defendant in the suit filed in Nassau County Supreme Court in Long Island, New York, alongside former labels Interscope and Nothing Records in a filing that includes accusations of sexual battery and intentional infliction of emotional distress against the singer, and negligence and intentional infliction of emotional distress against the labels.
The suit says Doe, then 16, first met Manson in 1995 after a show in Dallas when she waited outside his tour bus and the singer invited her and “one of the other younger girls” onto his tour bus where he allegedly asked for their ages and school grades while jotting down their phone numbers and addresses.
A spokesperson for Manson and the singer’s lawyer had not returned a request for comment on the Doe lawsuit at press time, and a spokesperson for Interscope/Universal Music Group had not yet responded to a request for comment.
“While on the tour bus, Defendant Warner performed various acts of criminal sexual conduct upon Plaintiff, who was a virgin at the time, including but not limited to forced copulation and vaginal penetration,” the lawsuit claims. At the time, the age of consent in Texas was (and still is) 17 and the suit notes that one of Manson’s band members watched “Defendant Warner sexually assault Plaintiff… Plaintiff was in pain, scared, upset, humiliated and confused. After he was done, Defendant Warner laughed at her. … Then Defendant Warner demanded Plaintiff to ‘get the f–k off of my bus’ and threatened Plaintiff that, if she told anyone, he would kill her and her family.”
More than a dozen women have accused Manson of sexual, emotional and physical assault, including actress Evan Rachel Wood, who was the subject of the two-part HBO documentary Phoenix Rising last year that delved into her claims of the abuse she claims she allegedly suffered at the rocker’s hand during an on-and-off relationship that began when she was 18.
Manson and one of his accusers, actress Esme Bianco, recently reached a settlement to end her sexual assault lawsuit, and earlier in the month a judge dismissed another sexual abuse suit from model Ashley Morgan Smithline over her failure to find a new lawyer. Last May, an L.A. Superior Court judge dismissed a suit against Manson filed by a former personal assistant alleging sexual assault, sexual battery, sexual harassment and intentional infliction of emotional distress. Manson has denied the allegations.
The new Jane Doe lawsuit alleges that a member of Manson’s crew gave her a 1-800 number and a password so she could meet up with the singer again, noting that the teen began using drugs and alcohol soon after the alleged sexual assault, and continued to do so for years after. The suit also alleges that Manson would call and chat online with the teen while asking her for explicit photos of her and her friends.
In the same year they met, Doe claims that Manson convinced the teen to meet him in New Orleans, where he “groomed” her by complimenting her artwork before he became more “aggressive and again sexually assaulted Plaintiff, including kissing, biting her breast, oral copulation, and penetration,” the complaint alleges. “After the second assault, Defendant Warner acted in a kinder manner nicer to Plaintiff and told her that he wanted to see her again.” As with Texas, the age of consent in Louisiana at the time was, and is, 17.
Doe said she continued to be in touch with Manson and his band, and when she was 18 moved to Los Angeles and began dating then-Nine Inch Nails drummer Chris Vrenna. (Billboard has reached out to Vrenna for comment.) In 1999, she allegedly attended a Manson show in New Orleans, describing a typical backstage scene that included “the availability of large amounts of drugs for her and others to use.” The suit claims that the woman then spent the next month on the road with Manson, taking drugs and spending time with the disgraced singer during which he would “groom, harass and sexually abuse” her.
The suit goes on to describe Manson’s increasing psychological control over Doe, in which he allegedly “purposefully and intentionally laid the groundwork necessary to intimidate and control her … As he did on countless occasions, Defendant Warner exploited this vulnerability to keep Plaintiff under his control. Defendant Warner often made Plaintiff feel alone and isolated by telling her that no one understands her other than him, which included her family. At the time, Plaintiff believed Defendant Warner and was compelled to keep following him.”
The suit claims the alleged controlling and grooming behavior continued — including “coerce[ing] Plaintiff to have sex with him and other band members or his assistant at the same time,” while “providing Plaintiff with drugs.”
In details that bear a resemblance to allegations from a number of the other women who’ve accused Manson of abuse, Doe’s lawsuit claims that the singer employed “hostile and verbally abusive behavior,” as well as racially charged language mixed with the sharing of intimate personal details. The suit also claims that Interscope and Nothing Records “were well-aware of Defendant Warner’s obsession with sexual violence and childhood sexual assault,” and that the labels did not have a “reasonable system or procedure in place to investigate, supervise, or monitor its staff and/or agents, including Defendant Warner, to prevent pre-sexual grooming and sexual harassment, molestation, and assault of fans, including minors and women.”
The suit continues, “As a result of Brian Warner’s sexual abuse and assault, enabled and encouraged by Defendants Interscope and Nothing Records, Plaintiff has suffered severe emotional, physical, and psychological distress, including shame, and guilt, economic loss, economic capacity and emotional loss.”
Doe is seeking damages to be determined at trial and an order “enjoining Defendants from future unlawful business practices including, but not limited to, exposing minors and vulnerable adults to sexual abuse and exploitation.”
Stories about sexual assault allegations can be traumatizing for survivors of sexual assault. If you or anyone you know needs support, you can reach out to the Rape, Abuse & Incest National Network (RAINN). The organization provides free, confidential support to sexual assault victims. Call RAINN’s National Sexual Assault Hotline (800.656.HOPE) or visit the anti-sexual violence organization’s website for more information.
A federal judge ruled Friday that hundreds of artists cannot join forces to sue Universal Music Group to regain control of their masters, saying the case raised big questions about “fairness” but that it was ill-suited for class-action litigation.
The ruling came in a closely-watched case brought by “Missing You” singer John Waite and others over copyright law’s “termination right.” The rule is supposed to let authors take back control of their works, but the lawsuit claims UMG has flatly ignored that requirement when it comes to sounds recordings.
Waite wanted to certify the case as a class action — a make-or-break move that would have allowed hundreds of UMG artists to bring their claims as a single lawsuit, represented by a single set of lawyers.
But in a crucial ruling issued Friday, Judge Lewis Kaplan denied that request, citing the complex and unique questions raised by each individual artist’s relationship with UMG.
“Plaintiffs’ claims raise issues of fairness in copyright law that undoubtedly extended beyond their own grievances,” the judge wrote. “However, the individualized evidence and case-by-case evaluations necessary to resolve those claims make this case unsuitable for adjudication on an aggregate basis.”
Waite and other artists sued UMG in February 2019, claiming the label had effectively refused to honor the termination right. The case was filed as a proposed class action, aiming to eventually represent hundreds of others in a similar situation. A nearly-identical case was filed on the same day by the same attorneys against Sony Music Entertainment, claiming it had adopted a similar stance on terminations.
According to the lawsuits, the labels have long claimed that sound recordings – unlike the underlying musical compositions controlled by music publishers – are effectively never subject to the termination rule. The basic argument is that most recordings are so-called works for hire, meaning the label essentially creates them itself and simply hires artists to contribute to them.
In seeking to pull hundreds of other artists into the lawsuit, lawyers for the artists argued that UMG has made those “fictitious” and “erroneous” arguments “in every instance” that an artist invokes the termination right – meaning they represent the kind of “systematic wrongful conduct” that is best addressed by a huge class action.
But in Friday’s decision, Judge Kaplan disagreed. “The … analysis requires understanding for each artist the circumstances in which the recordings were produced, the creative involvement, if any, of the record label, and the types of resources and payments the record label provided the artist.”
To decide if a record really was produced simply as a work for hire, the judge said tricky questions would need to be answered for each separate artist. Judge Kaplan said the evidence indicated that UMG sometimes only provided “big picture approval authority,” which could help an artist prove their right to terminate. But for other artists, he said the label was “more involved in the creative process.”
“Did the record label agree on the lyrics and music with the artist?” the judge asked. “Did the record label select the producers and sound engineers to work on the sound recordings? What level of substantive artistic feedback, if any, did the record label provide?”
The ruling is not necessarily a death-knell for the lawsuit against UMG, which will now proceed on behalf of Waite and a handful of others. Evan Cohen, the attorney who represents the artists, did not immediately return a request for comment.
The case could still make a big impact, class-or-no-class. Countless other artists have similar arrangements with record labels over highly-lucrative masters, but the legal arguments about when sound recordings are subject to the termination right have thus far only been lightly tested in court. A final ruling in favor of Waite could provide key legal ammo for those other artists, even if they need to bring their own cases.
A representative for UMG did not immediately return a request for comment.
But it will doubtless be a severe logistical hurdle for such cases actually being filed, since they’re expensive to litigate and artists typically lack the same kind of legal resources as the major labels who have denied their termination requests. A class action would have allowed the artists to pool their resources and secure a sweeping decision with only a single set of legal costs.
Friday’s decision will not directly apply to the similar proposed class action against Sony, which has been on pause for months as the two sides attempt to strike a settlement. But the new ruling, issued by a judge in the same federal court district as the Sony case, certainly does not bode well for that case being certified as a class action.
Read the entire decision here:
Music “as we know it” has been prematurely pronounced dead several times over. The cassette tape, MIDI digital synthesizers, Napster, Auto-Tune and streaming were all received with apocalyptic hysteria. The current existential threat is artificial intelligence (AI), a software leviathan with a voracious appetite for copyrighted works, and a prolific capacity for human-free creative processes. Whether AI will kill the humanity of music remains debatable. What is not up for debate is that AI raises many legal issues. While courts have yet to weigh in, the U.S. Copyright Office has issued instructive decisions and made AI-related copyright issues a 2023 priority.
The proliferation of AI in music
AI in music is not new. Alan Turing, the godfather of computer science, created a simple melody-making machine in 1951. Experimental trombonist and composer George Lewis improvised a live quartet with three Apple II computers in 1984. David Bowie experimented with a digital lyric randomizer in the 90s. Hello, World, the first AI composed pop album, was released in 2018.
Today’s AI is more evolved and exponentially more impactful. Indirect enhancements (personalized playlists, music recommendations, etc.) have given way to direct creation tools. For example, Google’s Magenta wrote a new “Nirvana” song by analyzing the melody, chord changes, guitar riffs and lyrics of the band’s past works. ChatGPT receives text instructions to compose lyrics superior to those that IBM Watson wrote for Alex da Kid in 2016. Authentic Artists leases AI-powered artists-for-hire. MUSICinYOU.ai generates tailored compositions from a 300-question personality test. Bandlab’s Songstarter is an “AI-powered idea generator” capable of creating royalty-free music in seconds. Startup Staccato pitches itself as “an AI Lennon to your McCartney” given its ability to bounce ideas off human songwriters.
Only “sufficient human creative input” supports copyright ownership
The Copyright Act protects “works of authorship” – a concept derived from the U.S. Constitution’s Copyright Clause, which empowers Congress to secure “exclusive rights” for “authors.” Courts have held that authors must be human. Consequently, animals (including the famed monkey selfie) and natural forces (a naturally growing garden) cannot be authors of copyrighted works.
While current legal precedent suggests that AI also cannot “author” copyrighted works, the critical issue is what amount of human creative input or intervention suffices to make AI-generated musical works copyrightable (and by whom)?
U.S. courts have yet to answer this question decisively. The Copyright Office has drawn some basic boundary lines. AI-advocate Steven Thaler filed a copyright application for AI-generated artwork. The Board rejected his applications three times, finding that the artwork was not “created with contribution from a human author” and thus failed to meet the human authorship requirement. (Thaler has since sued.)
Conversely, copyright protection was afforded to David Cope’s 1997 work Classical Music Composed by Computer (and, again, to his 2010 album From Darkness, Light). Cope successfully demonstrated that his works only partially used AI and were the result of sufficient human creative input and intervention. More recently, the Copyright Office granted a first-of-its-kind copyright to a comic book created with the assistance of text-to-image AI Midjourney (though the Copyright Office is now reconsidering its decision).
In the absence of bright line rules for ascertaining how much input or intervention by an AI’s user is needed, each work must be individually evaluated. It is a question of degree. Under traditional principles, the more human involvement, and the more AI is used as a tool (and not as the creator), the stronger the case for copyright protection. A song created with the prompt: “create a song that sounds like The Weeknd” will not suffice. But a copyright application which both: (i) demonstrates that a human controlled the AI and (ii) memorializes the specific human input in the creative process is more likely to succeed.
A word of caution: the Copyright Office has made clear that misrepresenting the use of AI in the music generation process is fraudulent. And although the Copyright Office solely relies on facts stated in applications, both it and future litigants are likely to soon deploy AI-detecting software to verify the extent to which AI was used to generate the musical work.
AI “training” looms as the first major battle ground
Generative AI software (like Magenta) is “trained” by feeding it vast quantities of content – text, lyrics, code, audio, written compositions – and then programming it to use that source material to generate new material. In October 2022, the RIAA shot a warning flare by declaring that AI-based extractors and mixers were infringing its members’ rights by using their music to train their AI models. Those that side with the RIAA argue that AI’s mindboggling ingestion of copyrighted music violates the Copyright Act’s exclusive rights to reproduce and create “derivative works” based upon one or more preexisting works. Because generative AI produces output “based upon” preexisting works (input), copyright owners insist that a license is needed.
On the other hand, AI-advocates argue that the use of such data for training falls within copyright law’s “fair use” exception, claiming that the resulting work is transformative, does not create substantially similar works, and has no material impact on the original work’s market. They contend that the training data has been sufficiently transformed by the AI process to yield musical works beyond the copyright protection of the original works.
These competing views are likely to be tested in the class action lawsuit just filed on behalf of a group of artists against Stability AI, DeviantArt, and Midjourney for allegedly infringing “billions of copyrighted images” in creating AI art. (Getty Images recently filed a comparable lawsuit against Stability AI in the U.K.).
Proving infringement with AI-works
How exactly the AI was trained and operates will be issues in copyright infringement litigations. Proving infringement is a two-step process. The plaintiff must demonstrate that copying occurred; and that the copying is unlawful, because the defendant copied too much of the plaintiff’s protected expression and is, therefore, substantially similar.
The first of these inquiries can be proven by direct evidence of copying or circumstantially by establishing access to a specific, allegedly infringed musical work. With art, there is a Spawning AI software called “Have I Been Trained” which allows users to search through the images used to train AI art generators. While no known current analog exists for music, the technology is likely imminent.
The nature of the AI instructions will also be crucial to showing an awareness of the original work and substantial similarity between the AI-generated music and the allegedly infringed music. Prompts that intentionally draw on copyrighted works (i.e., create a work in “the style of _”) undoubtedly bear on the issue of substantial similarity. The marketplace is pivoting in advance of anticipated rulings: Songmastr has, for example, stopped marketing its ability to create songs based on the styles of Beyonce and Taylor Swift.
AI is evolving faster than the courts can evaluate how laws apply to it. The just-filed art litigation may provide some clarity; however, while in the fog, those creating AI-generated music are well-advised to stay cognizant of the legal risks and guide the artificial music making process with a genuine human touch.
James Sammataro is a partner and Nicholas Saady an associate at Pryor Cashman LLP.
When does a soundalike song sound a little too much alike?
Rick Astley is suing Yung Gravy over the rapper’s breakout 2022 hit that heavily borrowed from the singer’s iconic “Never Gonna Give You Up,” alleging that the new track — an interpolation that sounded a whole lot like an outright sample — broke the law by impersonating Astley’s voice.
In a lawsuit filed Thursday (Jan. 26) in Los Angeles court, Astley claims that Gravy’s “Betty (Get Money),” which reached No. 30 on the Hot 100 last year, violated the singer’s so-called right of publicity because it closely mimicked the distinctive voice Astley used in the chart-topping 1987 hit.
“In an effort to capitalize off of the immense popularity and goodwill of Mr. Astley, defendants … conspired to include a deliberate and nearly indistinguishable imitation of Mr. Astley’s voice throughout the song,” Astley’s lawyers wrote. “The public could not tell the difference. The imitation of Mr. Astley’s voice was so successful the public believed it was actually Mr. Astley singing.”
Pulling heavily from a song that boomed in recent years thanks to “Rickroll” internet memes, “Betty” was a major hit for Yung Gravy. But it often drew attention largely for its connections to Astley; the New York Times called it “a real-life rickroll that functioned as a comedy song, a TikTok trend and a nostalgia trip all at once.”
In their new lawsuit, Astley’s lawyers said the singer was “extremely protective over his name, image, and likeness,” meaning the unauthorized use of the soundalike voice had caused him “immense damage.”
Representatives for Gravy (real name Matthew Hauri) and Universal Music Group’s Republic Records (also named in the lawsuit as the label that released “Betty”) did not immediately return a request for comment.
Thursday’s new lawsuit raises big questions about the methods used in the music industry to legally borrow from older songs, an ever more popular tactic in a nostalgia-heavy age.
When they created “Betty,” Gravy and his team allegedly cleared the underlying musical composition to “Give You Up.” That gave them the legal right to recreate music and lyrics from the original in their new track — a process known as “interpolating.”
But the lawsuit says Gravy and his team weren’t able to secure a license to use the actual sound recording of the famous track — the better-known process of “sampling.” That would mean they didn’t have any right to directly copy the exact sounds, including Astley’s voice.
Instead, Astley says they hired Popnick (real name Nick Seeley) to imitate Astley’s “signature voice” on the track. At one point, the lawsuit quotes from an Instagram video in which Popnick said he wanted the song to “sound identical” to Astley voice.
By doing so without permission, the lawsuit claims that Gravy and Popnick violated Astley’s right of publicity — the legal right to control how your name, image or likeness is commercially exploited by others.
“A license to use the original underlying musical composition does not authorize the stealing of the artist’s voice in the original recording,” Astley’s lawyers wrote. “So, instead, they resorted to theft of Mr. Astley’s voice without a license and without agreement.”
Astley’s allegations rely heavily on a 1988 federal court ruling, in which Bette Midler successfully sued the Ford Motor Co. for violating her right of publicity by running a series of commercials featuring a Midler impersonator. In that case, the court sided with Midler even though Ford had obtained a license to the underlying song.
The new lawsuit was filed by Richard Busch, a prominent music litigator best known for winning the blockbuster copyright case over “Blurred Lines.” In a statement to Billboard, Busch said: “Mr. Astley owns his voice. California law is clear since the Bette Midler case more than 30 years ago that nobody has the right to imitate or use it without his permission.”
In addition to violating Astley’s right of publicity, the lawsuit also accuses Gravy of violating federal trademark law by making false statements that made it appear that the singer had endorsed the new song. In an interview with Billboard, Gravy said he had spoken with Astley and that the singer had approved of the new song — that he “fucks with the song.”
“These statements were all false,” Astley wrote in his lawsuit.
With all the many fan theories bouncing around the internet in the weeks since Miley Cyrus released her Billboard Hot 100-topping new single “Flowers,” a particular amount of attention has been paid to its relationship to Bruno Mars‘ own No. 1 hit from a decade earlier, the torch song ballad “When I Was Your Man.”
Countless fans have pointed out the lyrical similarities between the two songs — particularly their respective choruses — with “Flowers” echoing many of Mars’ regretful sentiments from an opposing, unmoved perspective. (For example, Mars laments on “Your Man,” “I should’ve bought you flowers… take you to every party, ’cause all you wanted to dance,” while Cyrus protests on “Flowers,” “I can buy myself flowers… I can take myself dancing.”) Speculation behind the extended reference has centered around the song being a favorite of Liam Hemsworth’s, furthering the idea of the song as a kiss-off to Cyrus’ real-life ex. The buzz over the two songs was even enough to give “Your Man” a nearly 20% bump in weekly streams in the frame following the release of Cyrus’ new single.
With the relationship between the two songs appearing obvious to fans, many have wondered over social media whether Mars or “Your Man” co-writers Andrew Wyatt, Philip Lawrence and Ari Levine deserve writing credits on “Flowers.” To a degree, this sort of thing — offering writing credits to obvious sources of musical inspiration — has become common practice in new songs by popular artists, even if a direct sample is not present and the use of an interpolation is an arguable matter of interpretation. Well-publicized cases of that phenomenon include Olivia Rodrigo adding Paramore’s Hayley Williams and Josh Farro to the credits of her “Good 4 U” due to the song’s musical similarities to their “Misery Business,” and Beyoncé including “Show Me Love” scribes Fred McFarlane and Allen George in the credits to her “Break My Soul” due to some overlapping sonic elements with the Robin S. smash.
The case of “Flowers” and “When I Was Your Man” is a little different, though. Those previously mentioned examples were mostly based around sonic similarities — melodic, rhythmic and textural — which were close enough in nature that a case could have been made that the original’s copyright was infringed upon. However, not only are there no direct samples or obvious interpolations between “Flowers” and “Your Man,” there are no major sonic overlaps either — no obvious shared melodies or rhythms, no major similarities in production textures. When Cyrus sings “I can buy myself flowers,” for instance, she does so in a cadence and melody of her own, without any significant similarity to how Mars sang “I should’ve bought you flowers.”
The only obvious similarities, then, are in the songs’ lyrics — which are not identical, but do share elements and ideas — and merely using some of the same words as an older song is not considered grounds for infringement.
“This is great fodder for fan theories, but lawyers should have nothing to do with it,” says Joseph Fishman, a professor at Vanderbilt Law School in Nashville and an expert in music law. “There are no songwriter credits for the ‘When I Was Your Man’ writers because no license should be necessary.”
Cyrus’ arguable use of Mars’ lyrics as a reference point for her own expression is certainly not without precedent, with the “answer song” serving as a longtime staple of popular music. Famous examples include any number of responses (The Miracles’ “I Got a Job,” The Heartbeats’ “I Found a Job”) to The Silhouettes’ ’50s doo-wop staple “Get a Job,” Lynyrd Skynyrd’s rejoinder to Neil Young’s “Southern Man” in their ’70s southern rock classic “Sweet Home Alabama” (“I hope Neil Young will remember/ Southern man don’t need him around anyhow”) and countless rap diss records dating back to the ongoing “Roxanne Wars” of the mid-’80s, when male rap group U.T.F.O. and female rappers Roxanne Shanté and The Real Roxanne (among others) all traded barbs with new singles. While many of these singles included lyrical references to their predecessors, most did not include additional writing credits for those songs’ performers.
“Lyrically, sure, there’s enough similarity to make listeners think that ‘Flowers’ is deliberately responding to the earlier song,” Fishman offers. “But even if we assume that’s true, so what? Using one song to issue a retort to an earlier song is not, by itself, infringement. John Mayer and Taylor Swift don’t need to cross-license anything when they write songs at each other.”
Does all this mean that there’s no chance of Mars and his co-writers eventually being added as co-writers to the “Flowers” credits? Not necessarily: Whether or not Cyrus is protected legally from legal recourse from the “Your Man” writers, she may ultimately decide to add them anyway as an act of goodwill and out of a desire to avoid further conflict, particularly with all the media attention the similarity between the songs has received. It’s not uncommon for additional songwriting credits to be added to a song after its initial release — as was the case with “Good 4 U” in 2021 — often following a period of negotiations between the concerned parties. But if the names of Mars and his co-writers stay absent in the credits, Cyrus is not likely to have any legal responsibility to give them their “Flowers” there.