{"id":1861,"date":"2024-07-19T15:04:44","date_gmt":"2024-07-19T15:04:44","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/why-ai-lawsuits-may-have-a-lot-to-do-with-andy-warhol-and-prince\/"},"modified":"2024-07-19T15:04:44","modified_gmt":"2024-07-19T15:04:44","slug":"why-ai-lawsuits-may-have-a-lot-to-do-with-andy-warhol-and-prince","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/why-ai-lawsuits-may-have-a-lot-to-do-with-andy-warhol-and-prince\/","title":{"rendered":"Why AI Lawsuits May Have a Lot to Do With Andy Warhol and Prince"},"content":{"rendered":"\n
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\n\tThe lawsuits filed by the major labels against the AI companies Suno and Udio could be the most important cases to the music business since the Supreme Court Grokster decision, as I explained in last week\u2019s Follow the Money column. The outcomes are hard to predict, however, because the central issue will be \u201cfair use,\u201d a U.S. legal doctrine shaped by judicial decisions that involves famously \u2014\u00a0sometimes notoriously\u00a0\u2014\u00a0nuanced determinations about art and appropriation. And although most creators focus more on issues around generative AI \u201coutputs\u201d \u2014\u00a0music they\u2019ll have to compete with or songs that might sound similar to theirs \u2014\u00a0these cases involve the legality of copying music for the purposes of training AI. <\/p>\n

\n\tNeither Suno nor Udio has said how they\u2019re trained their AI programs, but both have essentially said that copying music in order to do so would qualify as fair use. Determining that could touch on the development of Google Books, the compatibility of the Android operating system, and even a Supreme Court case<\/a> that involves Prince, Andy Warhol <\/strong>and Vanity Fair<\/em>. It\u2019s the kind of fair use case that once inspired a judge to call copyright \u201cthe metaphysics of the law.\u201d So let\u2019s get metaphysical!\u00a0<\/p>\n

\n\tFair use essentially provides exceptions to copyright, usually for the purpose of free expression, allowing for quotation (as in book or film reviews) and parody (to comment on art), among other things. (The iconic example in music is the Supreme Court case over 2 Live Crew\u2019s parody<\/a> of Roy Orbison\u2019s \u201cOh, Pretty Woman.\u201d) These determinations involve a four-factor test that weighs \u201cthe purpose and character of the use\u201d; \u201cthe nature of the copyrighted work\u201d; how much and how important a part of the work is used; and the effect of the use upon the potential market value of the copyrighted work. Over the last decade or so, though, the concept of \u201ctransformative use,\u201d derived from the first factor, expanded in a way that allowed the development of Google Books<\/a> (the copying of books to create a database and excerpts) and the use of some Oracle API code<\/a> in Google\u2019s Android system \u2014\u00a0which could arguably be said to go beyond the origins of the concept.<\/p>\n

\n\tCould copying music for the purposes of machine learning qualify as well? \u00a0<\/p>\n

\n\tIn a paper on the topic, \u201cFair Use in the U.S. Redux: Reformed or Still Deformed<\/a>,\u201d the influential Columbia Law School professor Jane Ginsburg <\/strong>suggests that the influence of the transformative use argument might have reached its peak. (I am oversimplifying a very smart paper, and if you are interested in this topic, you should read it.) \u00a0<\/p>\n

\n\tThe Supreme Court decision on the Google-Oracle case involved part of a computer program, far from the creative \u201ccore\u201d of copyright, and music recordings would presumably be judged differently. The Supreme Court also made a very different decision last year in a case that pitted the Andy Warhol Foundation for the Visual Arts against prominent rock photographer Lynn Goldsmith<\/strong>. The case involved an Andy Warhol silkscreen of Prince, based on a Goldsmith photograph that the magazine Vanity Fair<\/em> had licensed for Warhol to use. Warhol used the photo for an entire series \u2014\u00a0which Goldsmith only found out about when the magazine used the silkscreen image again for a commemorative issue after Prince died.<\/p>\n

\n\tOn the surface, this seemed to cast the Supreme Court Justices as modern art critics, in a position to judge all appropriation art as infringing. But the case wasn\u2019t about whether Warhol\u2019s silkscreen inherently infringed Goldsmith\u2019s copyright but about whether it infringed it for licensed use by a magazine, in a way where it could compete with the original photo. There was a limit to transformative use, after all. \u201cThe same copying,\u201d the court decided, \u201cmay be fair when used for one purpose but not another.\u201d \u00a0<\/p>\n

\n\tSo it might constitute fair use for Google to copy entire books for the purpose of creating a searchable database about those books with excerpts from them, as it did for Google Books \u2014\u00a0but not necessarily for Suno or Udio to copy terabytes of recordings to spur the creation of new works to compete with them, especially if it results in similar works. In the first case, it\u2019s hard to find real economic harm\u00a0\u2014\u00a0there will never be much of a market for licensing book databases \u2014\u00a0but there\u2019s already a nascent market for licensing music to train AI programs. And, unlike Google Books, the AI programs are designed to make music to compete with the recordings used to train them. Obviously, licensing music to train an AI program is what we might call a secondary use \u2014\u00a0but so is turning a book into a film, and no one doubts they need permission for that. \u00a0<\/p>\n

\n\tAll of this might seem like I think the major labels will win their cases, but that\u2019s a tough call \u2014\u00a0the truth is that I just don\u2019t think they\u2019ll lose<\/em>. And there\u2019s a lot of space between victory and defeat here. If one of these cases ends up going to the Supreme Court\u00a0\u2014\u00a0and if one of these doesn\u2019t, another case about AI training surely will within the next few years\u00a0\u2014\u00a0the decision might be more limited than either side is looking for, since the court has tended to step lightly around technology issues. \u00a0<\/p>\n

\n\tIt\u2019s also possible that the decision could depend on whether the outputs that result from all of this training are similar enough to copyrighted works to qualify, or plausibly qualify, as infringing. Both label lawsuits are full of such examples, presumably because that could make a difference. These cases are about the legality of AI inputs, but a fair use determination on that issue could easily involve whether those inputs lead to infringing output. \u00a0<\/p>\n

\n\tIn the end, Ginsburg suggests, \u201csystem designers may need to disable features that would allow users to create recognizable copies.\u201d Except that\u00a0\u2014\u00a0let\u2019s face it\u00a0\u2014\u00a0isn\u2019t that really part of the fun? Sure, AI music creation might eventually grow to maturity as some kind of art form \u2014\u00a0it already has enormous practical value for songwriters \u2014\u00a0but for ordinary consumers it\u2019s still hard to beat Frank Sinatra singing Lil Jon\u2019s \u201cGet Low.\u201d<\/a> Of course, that could put a significant burden on AI companies \u2014\u00a0with severe consequences for crossing a line that won\u2019t always be obvious. It might be easier to just license the content they need. The next questions, which will be the subject of future columns, involve exactly what they need to license and how they might do that, since it won\u2019t be easy to get all the rights they need \u2014\u00a0or in some cases even agree on who controls them.\u00a0<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The lawsuits filed by the major labels against the AI companies Suno and Udio could be the most important cases to the music business since the Supreme Court […]<\/p>\n","protected":false},"author":1,"featured_media":1862,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[2593,317,2592,2427,2594],"class_list":["post-1861","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-andy","tag-lawsuits","tag-lot","tag-prince","tag-warhol"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/1861","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=1861"}],"version-history":[{"count":0,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/1861\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/1862"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=1861"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=1861"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=1861"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}