ARTIFICIAL INTELLIGENCE IS A CONTINUING THREAT TO ARTISTIC CREATIVITY & AN ONGOING COPYRIGHT INFRINGEMENT NIGHTMARE!

 

The headlines are full of stories about artificial intelligence (“AI”). It seems AI has gone from science fiction to reality in a very short period of time. From Open AI’s ChatGPT app to Google’s MusicLM music creation tool, and beyond, the future is now. A few decades back the struggle over digital rights and copyrights was a sideshow, of concern only to a relatively small slice of the population. Now, however, everyone is online, which means that even if you don’t consider yourself a creator as such, material you write, post or share could become part of an AI engine and used in ways you never imagined. To wit, several of my clients have recently raised concerns about the threat of AI, and the threat AI may pose to authors, artists (both fine and graphic artists) as well as songwriters and musicians… so let me try to break it down.

The tech behind AI is a complicated, but at its most basic AI engines ingest massive data sets (sometimes referred to as “scrapping”), which AI engine then use to train software that can make recommendations or even generate code, art, or text. Sometimes the engines are scouring the web for endless data sets so they can learn what is on a webpage and catalog it for search queries; other times, AI engines have access to huge proprietary data sets built in part by the text, photos, and videos users have posted on their respective platforms. Unlike the music piracy lawsuits of decades ago, the AI engines are not making copies of the data they use and distributing them under the same name. When it comes to so-called generative AI, the AI engines actually produce “new” audio (music) or visual images (movies) based on prompts from a human (e.g., jazz music about my dog dying) but created based on the massive amounts of data ingested by the AI engine. The legal issues, for now, tend to be about how the data got into the engines in the first place and who has the right to use that data. However, the further digested and diluted the origin of the ingested data becomes, the harder proper credit and payment will be do sort out.

AI proponents argue that AI engines can learn from existing data sets without permission because there is no law against learning, and that turning one set of data into something entirely different is protected by the law. The was affirmed by a lengthy court fight that Google won against authors and publishers who sued the company over its book index years go, which cataloged and excerpted a huge swath of books. Now Google is making the same argument claiming that audio and visuals uploaded to its YouTube site granted permission for AI to ingest that information, also arguing a “fair use” defense. Those against AI argue that if AI is going to use original material created by others then the AI engines should get a license from the original author or creator, or from whoever owns the copyright. Otherwise, the AI engines are violating the rights of the authors and creators of the underlying materials and, even if the result is not an exact copy of the underlying work (think “sampling” in music), the resulting AI product would not exist “but for” the underlying work and the use of the AI work competes with the artists or creators’ ability to make a living.

As of now, the US Copyright Office has stated that it will not accept a copyright registration on any work of authorship created using AI. However, there is still the issue of whether the resulting AI creation infringes the copyrights of other authors when it incorporates the work of the original authors into a new AI work or some sort (regardless of how remote or miniscule the resulting use in the new AI-generated work). Using the MusicLM system as an example, the Google researchers noted that MusicLM did have a tendency to incorporate copyrighted material from training data into the generated songs. During an experiment, they found that about 1% of the music the MusicLM system generated was directly replicated from the songs on which it trained (a threshold apparently high enough to discourage Google from releasing MusicLM to the public for a long time).

As AI systems like MusicLM are made available to users, it is inevitable that this has given rise to major legal issues, even when the systems are marketed as tools to assist artists rather than replace them. AI music generators violate music copyright by creating a mosaic of coherent audio from prior works they ingest in training, thereby infringing the US Copyright Act’s reproduction right. Similar concerns have been raised around the training data used in image, code and text-generating AI systems, which is often scoured from the web without creators’ knowledge. New works generated by an AI system should arguably be considered derivative works, in which case only the original elements of the AI-generated work would be protected by copyright (although it is unclear what might be considered “original” in such a context).

It might not be long before there is more clarity on the matter. Several lawsuits are currently making their way through the courts which will likely have a bearing on generative AI, including one pertaining to the rights of artists whose work is used to train artificial intelligence systems without their knowledge or consent. Simultaneously, several large film and music conglomerates are negotiating direct licensing deals with AI companies

Current AI platforms are fledgling and imperfect, but by design AI improves and gets “smarter” the more it is used. AI may still be in the early horse & buggy stage - but AI could quickly advance to the Tesla level. Authors, creators and artists beware!

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. www.wallacecollins.com

WHAT'S THE SCORE WITH SYNCHRONIZATION RIGHTS?!

As the composer of a film or TV score or as a songwriter, artist or producer whose song is used in a movie, TV show, advertisement or video game, under U.S. copyright law you own 100% of the copyright in your work from the moment you create the work and "fix it in a tangible medium." However, you must be careful what you sign so that you do not assign away those rights without fair compensation for your work. 

When it comes to the use of music there are two copyrights: one in the musical composition or song and one in the sound recording which is the fixation of the sounds that make up the music. When music is used in synchronization with visual images, whether it is created especially for the particular score or whether it is a pre-existing song that the director wants to use in a scene in a TV show or a theatrical motion picture, this is referred to as the "synchronization" of music with visual images. Permission in the form of a synchronization license (sometimes referred to as a “synch license”) must be procured by the makers of the audio/visual production from both the owner of the sound recording (the artist or record company) and from the owner of the song copyright (the songwriter or publishing company) Sometimes these are one and the same person or entity, sometimes they are not.

A synchronization license may take various forms. If a show's producer, director or music supervisor decides that a certain pre-existing song is right for a particular scene in a film or TV show or commercial or video game, then a synch license covering the master and the composition would be requested. Depending on the length and prominence of the use, if limited solely to use in the show the amount paid can range from a few hundred dollars to tens of thousand of dollars, or more. If the company also wants the right to include the music on a soundtrack album, then additional provisions would be required for that use which would pay royalties for each record sold. Also, the song should be registered by the author with the performing rights society (e.g., ASCAP, BMI, SESAC, etc.) so that revenues from performances in foreign movie theaters (U.S. movie theaters do not pay performance royalties) and from television broadcast can be collected and paid to the author.

On the other hand, a songwriter may be specifically employed to write incidental music or underscore cues for a film or for a TV commercial or other audio/visual work. Such an arrangement may be structured as a "work made for hire" whereby the songwriter is employed to write specific music which may ultimately be owned by the producer of the film. There is no set fee for such an arrangement - it can range from a few hundred dollars for a small budget project to hundreds of thousands of dollars for a blockbuster film score. However, in such circumstances, since the production company would usually claim ownership of the copyright, the author needs to be sure to try to negotiate to receive the 50% "writer share" of performance monies and have producer only get the 50% "publisher" share - otherwise the author may not be entitled to performance royalties from his or her performing rights society and it would all go to the producer. Issues like this would depend on the careful negotiation of the contract between the parties and their legal counsel.

Since this is a complicated area the details of which are beyond the scope of this article, I would suggest that if such an offer is made to you, an experienced entertainment lawyer would be a good investment on your part.  My advice on such matters is always “don’t sign anything – other than an autograph – unless you have a lawyer review it first!”

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656;  www.wallacecollins.com 

UNDERSTANDING RECORD PRODUCER RIGHTS & ROYALTY RATE CALCULATION IN THE DIGITAL ERA

     Music producers are authors of a sound recording as a matter of copyright law. Under U.S. Copyright law (17 U.S.C. § 102), when musical sounds are “fixed in a tangible medium of expression” in the recording studio a producer qualifies for such copyright ownership. Copyright ownership can only be transferred by a signed, writing under 17 U.S.C. § 204(a). In other words, unless and until the producer signs an agreement with the artist, the producer and artist are co-owners of the copyright in the sound recording and are entitled to share equally in any and all revenues which arise from the use and exploitation thereof.  Therefore, a producer and artist would share 50/50 in the sound recording copyright. Where the artist has multiple members or is a band, then the multiple authors of the sound recording would share on a pro-rata basis (i.e., 3 authors share 3 ways, 4 authors share 4 ways, etc.).

     That is the main reason why, in most instances, an artist and producer enter into a written producer agreement: to determine and adjust shares of ownership in the master and revenue division from the use and exploitation of the master sound recording. Major record labels under their record contacts with the artist wanted the master assigned to them, so producer agreements often mirrored that copyright transfer model. The producer would agree to transfer rights in the master sound recording copyright in exchange for an advance payment, royalties and producer credit on the records.

      Modern producer royalties are calculated differently than under the old record business model. The producer advance is usually an agreed upon amount, typically a portion of the amount advanced to the artist by the record company or distributor, if any, usually calculated in proportion to the royalty share between the artist and the producer for a master recording. Under the old physical record business model, the royalty was often based on suggested retail list price (SRLP), and a producer would typically agree to receive 3-5% or "points" out of the artist's 12-15% retail royalty paid to the artist by the record company. Since the newer recorded music world is mostly digital and streaming, and is calculated based on a "net receipts" basis, the mathematical translation is as follows: 15% - 25% of net receipts as the basic rate for many producers; 25% - 50%+ for established producers or producers who discover and/or develop an artist from an earlier stage.  Net receipts is the amount the artist actually receives from use and exploitation of the master recording (after distributor/retailer share). For example, if the digital streaming service pays the artist (or pays the label or distributor who then pays the artist) the amount of $100, and the producer royalty is 25% of net receipts, then the producer’s royalty should be approximately $25 out of the artist’s share. In addition, the producer also earns a pro rata share of royalty income from any use and exploitation of the sound recording just as the artist does, whether from synchronization licenses for film and TV use, from social media, and from streaming digital streaming services like YouTube, or otherwise. A producer is also entitled to a pro rata share of the amounts payable to the artist from SoundExchange for the performance rights in the sound recordings.

       As easy as this math may appear to be (or not), if you believe in yourself and your talents as a producer, give yourself the benefit of the doubt and invest in good legal representation - all the successful producers do. Your lawyer can "translate" the deal and explain its terms to you, and then help negotiate more favorable terms for you as appropriate. My advice: never sign anything - other than an autograph - without having your entertainment lawyer review it first.

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 35 years’ experience in music, film, television and emerging technology, and he handles many current digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656 Website: http://www.wallacecollins.com