The Ninth Circuit's Review of the Case in Middle or Versus Ford

The Universal Music Group is accusing a TikTok creator of copyright infringement after they published an AI-Generated song that was made to sound like a Drake and Weeknd collaboration. Scott Hervey and Josh Escovedo discuss this dispute in this episode of The Briefing by the IP Law Blog.

Watch this episode on the Weintraub YouTube channel here.

Cases Discussed:

• Middler v. Ford
• Astley v. Matthew Hauri, pka Yung Gravy

Show Notes:

Scott:
Last week, a new Drake and Weeknd collaboration disrupted the Internet. The only problem is that it wasn’t a Drake and Weeknd collaboration, after all. The song “Heart on My Sleeve” was written and produced by TikTok user ghostwriter977. The vocals for “Heart on My Sleeve” were generated by artificial intelligence, made to sound like Drake and The Weeknd. UMG, the record label behind the artists, is furious and is pushing music streamers to block AI tools from training on its artists’ melodies and lyrics. While “Heart on My Sleeve” was ultimately removed from Spotify due to a copyright issue…the song had an unauthorized sample in it…we could see more original AI fake Drake songs from ghostwriter 977, and there may not be anything UMG or the artist can do about it. We are going to talk about this next on the Briefing by the IP Law Blog.

Scott:
The music industry sees generative AI tools that can create music that sounds like a specific artist, as a real threat to business. In response to the fake Drake AI song, UMG issued a statement publicly encouraging digital service providers not to let generative AI tools train on music issued by their artists. UMG considers this a violation of copyright law.

Josh:
As we have previously covered, this issue-whether the training of an AI tool on existing copyright-protected works constitutes infringement or is fair use – is currently being litigated in a number of cases. Whether the initial content-copying AI tool does as part of its learning process constitutes infringement or protectable fair use will have a profound effect on the future of AI. The court’s focus will be on whether this copying is part of an overall transformative process to be weighed against the commercial impact the tool has on the applicable industry.

Scott:
Focusing on the output, most, if not all, of those cases deal with generative AI platforms that create visual works. Here we are talking about the creation of a musical work where the song itself was original, written by ghostwriter977.   And since UMG based its takedown on a small sample audio tag included in Heart on My Sleeve, it seems fair to assume that the original components of the song itself probably are not infringing.

Josh:
“Heart on My Sleeve” wasn’t the last of the Fake Drake. Another Fake Drake AI track recently dropped. The track “Winter’s Cold” was posted to Soundcloud on April 18, featuring the artificial vocals of Drake. The track has already garnered over 120,000 listeners on the platform. This, I am sure, has the record industry strategizing on how to put this all back in the bottle. And I assume further legal maneuvering is in the works.

Scott:
I agree. I suspect the next step could include the artist filing a right of publicity claim.

Josh:
California’s right of publicity statute is Civil Code section 3344 prohibits the use of another’s name, voice, photograph, or likeness on or in products, merchandise, or goods or for purposes of advertising or selling…..such products, merchandise, goods without such person’s prior consent. California also has a common law right of publicity that’s a bit broader than the statute. The Ninth Circuit has adjudicated two right of publicity cases involving sound-alike recordings.

Scott:
That’s right. The first was Middler v. Ford, in which Ford hired a singer who sounded like Bette Midler to sing a recording from one of Midler’s albums in a TV commercial. Middler sued for violation of her right of publicity…both under the civil code and under common law. The trial court initially granted Ford its motion for summary judgment. On appeal, the 9th Circuit addressing Middler’s common law claim held that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.

Josh:
However, this holding from the Midler case doesn’t seem to be of much use to either UMG or Drake. The fake Drake AI songs were not being used to sell products. Also, the Midler court’s analysis of the interplay between the First Amendment and Midler’s publicity claim seems relevant here. The Midler court noted that if the  purpose behind the use of a person’s identity is “informative or cultural,” the use is immune; if the use serves no such function but merely exploits the individual portrayed, immunity will not be granted.”

Scott:
There is another part of the Midler case that will not be favorable to the record companies and recording artists; that is the court’s review of the application of Civic Code section 3344. This section prohibits the use of another person’s “name, voice, signature, photograph or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling…..such products, merchandise, goods without such person’s prior consent”  The 9th circuit pointed out that Ford did not use Midler’s name or anything else whose use is prohibited by the statute. The voice Ford used was that of the sound alike.

Josh:
I think the biggest problem facing UMG or any recording artist who wants to sue is based on an original generative AI sound recording that has “sound-alike” vocals os Section 114(b) of the Copyright Act. As we previously discussed in our review of Rick Astley’s lawsuit against Yung Gravy’s use of a sound alike, Section 114(b) permits “soundalikes”. A publication by the US Copyright Office specifically says that  “under U.S. copyright law, the exclusive rights in sound recordings do not extend to making independently recorded “sound-alike” recordings.

Scott:
And if the intent of the scope of Section 114(b) isn’t clear enough from that, the notes to Section 114 by the House Judiciary Committee provide as follows…”Subsection (b) of section 114 makes clear that statutory protection for sound recordings extends only to the particular sounds of which the recording consists and would not prevent a separate recording of another performance in which those sounds are imitated…. Mere imitation of a recorded performance would not constitute a copyright infringement, even where one performer deliberately sets out to simulate another’s performance as exactly as possible. So, subject to the open question about whether the AI training process constitutes infringement, as long as the music and lyrics are completely original…no uncleared samples….then a generative AI sound recording that has “sound-alike” vocals is probably completely legal.