By Blake Brittany
(Reuters) – Country singer Tift Merritt’s most popular song on Spotify (NYSE: NYSE: ) is a ballad with lyrics evoking isolation and the open road. Prompted by Reuters to create an “American Tift Merritt-style song,” artificial intelligence music site Udio instantly generated “Holy Grounds,” a ballad with lyrics about “driving old back roads” while “watching the fields and skies shift and sway.” Merritt, a Grammy-nominated singer-songwriter, told Reuters that the “imitation” created by Udio “doesn’t work on any of my albums.” “This is a great demonstration of how completely untransformative this technology is,” Merritt said. “It’s theft.” Merritt, a longtime advocate for artists’ rights, isn’t the only musician sounding the alarm. In April, she joined Billie Eilish, Nicki Minaj, Stevie Wonder and dozens of other artists in an open letter warning that music produced by AI and trained on their recordings could “undermine creativity” and marginalize human artists. Major record labels are also concerned. Sony Music companies Universal Music Group and Warner Music sued Udio and another AI company called Suno in June, marking the music industry’s entry into the high-stakes copyright battles over AI-generated content that are just starting to wind their way through the courts. “Taking huge amounts of creative work to copy it is not creativity,” said Merritt, an independent musician whose first record label is owned by UMG but who said she has no financial involvement with the company. “This is stealing to compete and replace us.”
Suno and Udio pointed to previous public statements defending their technology when asked to comment for this story. They filed their initial responses in court on Thursday, denying any copyright infringement and arguing that the lawsuits were attempts to stifle smaller competitors. They compared the trademark protests to previous industry concerns about synthesizers, drum machines and other innovations replacing human musicians. Uncharted territory The companies, which have attracted venture capital funding, have said they prevent users from creating songs that explicitly mimic major artists. But the new lawsuits say Suno and Udio could be induced to reproduce elements of songs by Mariah Carey, James Brown and others and imitate the voices of artists such as ABBA and Bruce Springsteen, suggesting they have misused the brands’ catalog of copyrighted recordings to train their systems. “The lawsuits document the brazen copying of a vast number of recordings in order to flood the market with cheap imitations and drain listeners and income from the real artists and songwriters,” said Mitch Glazier, CEO of the Recording Industry Association of America. “AI holds tremendous promise – but only if it is built on sound, responsible and licensed principles.”
When asked for comment on the cases, Warner Music referred Reuters to the Recording Industry Association of America. Sony and Universal Music did not respond to requests for comment.
The trademark claims echo those of novelists, news outlets, music publishers and others in high-profile copyright lawsuits over chatbots like OpenAI’s ChatGPT and Anthropic’s Claude that use generative AI to generate text. Those lawsuits are still pending and in their early stages. Both sets of cases pose new questions for courts, including whether the law should make exceptions for AI to use copyrighted material to create something new. The record company cases, which could take years to hear, also raise questions unique to their subject matter — music. The interplay of melody, harmony, rhythm and other elements can make it harder to determine when parts of a copyrighted song have been infringed than works like written text, said Brian McBrearty, a musicologist who specializes in copyright analysis. “There’s more to music than just the flow of words,” McBrearty said. “It has tone, rhythm, harmonic context. It’s a richer mix of different elements that makes it a little less straightforward.” Some claims in AI copyright cases may rely on comparisons between the output of an AI system and the material it allegedly misused to train it, requiring the kind of analysis that has challenged judges and juries in music cases. In a 2018 decision that a dissenting judge called a “dangerous precedent,” Robin Thicke and Pharrell Williams lost a case brought by the Marvin Gaye estate over the similarity of their hit song “Blurred Lines” to Gaye’s “Got to Give It Up.” But artists including Katy Perry and Ed Sheeran have since fought back with similar complaints about their own songs.
Sono and Audio have argued in very similar court filings that their output does not infringe copyright and that U.S. copyright law protects audio recordings that “imitate or mimic” other recorded music. “Music copyright has always been a messy world,” said Julie Albert, an intellectual property partner at New York law firm Baker Botts who is pursuing the new cases. Even without that complexity, Albert said rapidly advancing AI technology is creating new uncertainty at every level of copyright law. Who owns fair use? The complexities of music may ultimately matter less if, as many expect, the AI cases are limited to a “fair use” defense against claims of infringement — another area of U.S. copyright law fraught with open questions. Fair use promotes freedom of expression by allowing unauthorized use of copyrighted works under certain circumstances, with courts often focusing on whether the new use transforms the original. Defendants in AI copyright cases have argued that their products make fair use of human creativity, and that any court ruling to the contrary would be disastrous for the potentially trillion-dollar AI industry.
Sono and Odeo said in their responses to the lawsuits filed by the companies on Thursday that their use of existing recordings to help people create new songs “is purely fair use.” Legal experts have said fair use can make or break cases, but no court has yet ruled on the issue in the context of AI. Albert said AI companies generating music may have a harder time proving fair use than chatbot makers, which can summarize and summarize text in ways that courts may be more likely to view as transformative. Imagine a student using AI to create a report on the American Civil War that includes text from a novel on the subject, versus someone asking AI to create new music based on existing music, she said. The student’s example “certainly seems like a different purpose than logging into a music generator and saying, ‘Hey, I want to make a song that sounds like a Top 10 artist,’” Albert said. “The purpose is very similar to what the artist would have gotten in the first place.” The Supreme Court’s ruling on fair use last year could have a major impact on music litigation because it focused largely on whether the new use had the same commercial purpose as the original work. That argument is a key part of the complaints from Suno and Udio, which said the companies were using trademarked music “for the ultimate purpose of preying on listeners, fans, and potential licensees of the sound recordings (that) they have copied.” Merritt said she worries that tech companies might try to use AI to replace artists like her. If musicians’ songs can be extracted for free and used to imitate them, she said, the economics are clear. “Robots and AI don’t get royalties,” she said.