By: Connor Green
“Polka Face”, “Party in the CIA”, “White and Nerdy” are all parody songs written by “Weird Al” Yankovic, based on the popular songs “Poker Face”, “Party in the USA” and “Ridin’”. “Weird Al” has made millions by writing songs that are heavily based on other artists’ work through the doctrine of fair use. Fair use allows people to use copyrighted work without permission from its owner. In Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) the Court determined that fair use is defined by four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect on the potential market for or value of the copyrighted work.
AI has brought a new dimension to the question of what fair use is. In June of 2024, Sony, Universal and Warner filed lawsuits against Suno and Udio-maker Uncharted Labs alleging that Suno and Udio were stealing legally copyrighted song recordings. Suno and Udio’s respective AIs listened and learned from a diverse collection of recorded music which then allowed users to create songs based on other artists’ music. “Our technology is transformative; it is designed to generate completely new outputs, not to memorize and regurgitate pre-existing content,” said Suno’s Chief Executive, Mikey Shulman, in response to the lawsuit, “Suno is built for new music, new uses and new musicians.” The complaint however, suggested that the work is not transformative and that listeners may struggle to distinguish the AI created work from the original. Sony, Universal and Warner filed the lawsuits in Massachusetts and the Southern District of New York, but the high profile and industry influencing nature of this case make the Supreme Court a likely destination.
In response to AI advancements, the Tennessee Legislature recently passed the “Elvis Act” which prevents AI companies from copying artists voices to make music. While Tennessee has responded quickly, no other state nor the federal government has followed suit. The federal government may be waiting to see how the courts rule, nonetheless public opinion still matters. As AI becomes more intertwined in our lives it is important to recognize the impact it is having on people.
The Suni and Udio cases are most likely to hinge on the second element of the fair use doctrine; the nature of the copyrighted work. In Campbell v. Acutt Rose Music, 510 U.S. 569 (1994) the Court ruled that parody songs were a work of creative expression, as they provide a different message than the original work. The Court, however, may not rule AI generated songs as “creative” so quickly. Can technology that lacks the ability to have original thoughts be “creative” in producing a song? Given how the Supreme Court recently defined creative expression in constitutional challenges to forced speech, the answer is likely no. In Creative v. Eleni, 600 U.S. 570 (2023), the Court ruled that a website created by humans is creative expression, however, one created by widgets, or a template is not. Nonetheless, the defendants may argue that the expression is in the human design of the AI and not the AI’s work specifically.
Regardless of what the court decides, the decision will have a lasting impact on the music industry. Should the court find that AI generated music is fair use, artists are concerned that it could drastically oversaturate the market. In today’s world, every artist depends on the digital economy. If the courts permit AI to create millions of songs that sound like real artists, musicians will certainly take a massive hit. Unfortunately, not everyone can sell out arenas everyday like Taylor Swift.
On the other hand, if the court sides with Warner, Sony and Universal, new artists may have to abandon modern technologies in song writing. Technology has allowed artists to become more creative in their pursuit of original music and electronic tools are everywhere from the recording studios to Madison Square Garden. As we have seen with parody songs, artists have been able to work around the court’s definition of fair use. It is hard to imagine that AI companies will not follow suit and eventually crack into the music industry despite an unfavorable outcome in the courthouse.
AI is still in its infancy and our laws have just barely begun to regulate it. Lack of precedent makes it even more difficult to parse out where AI belongs, and where it does not. Even if states do decide to follow Tennessee and pass legislation regulating AI, technology is always two steps ahead. Ideally, the Supreme Court sets a precent that artists and AI companies can follow, but with how fast AI is developing, the Court may not have the chance.
Student Bio: Connor Green is a third-year evening student at Suffolk University Law School. He is a staff member for the Journal of High Technology Law, and the President of the Sports & Entertainment Association. Connor received his Bachelor of the Arts degree in Government from Franklin & Marshall College in 2019.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
