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Journal of Intellectual Property Law

Abstract

Copyright law is currently incapable of resolving challenges introduced by the use of generative artificial intelligence, or generative AI, in the music industry. This technology is being adopted by both copyright holders and licensees, as well as independent artists and third-party applications. In 2023, online producer Ghostwriter created a song (Heart on My Sleeve) directly influenced by copyrighted materials from global artists Drake and The Weeknd using AI technology. The composition garnered millions of listeners across social media and streaming platforms. However, neither the original artists nor their music group (i.e., Universal Music Group) provided Ghostwriter a license to utilize copyrighted works. This is just one instance illustrating how generative AI has created a global environment mired with vulnerable music industry stakeholders, complex questions of authorship and infringement, and an abundance of confused listeners.

This Note examines current shortcomings of copyright law, analyzes recent examples of generative artificial intelligence impacting the music industry, and discusses current regulatory and common law guidance concerning AI technology. It will also study the music industry’s underlying concerns about AI-generated works and review the frail industry defenses being adopted against unpermitted users. Further, this Note proposes that a statutory federal right of publicity is the solution for the music industry to promote the advancement of generative AI technology while protecting copyright holders and licensees. This Note outlines the necessity of a statutory federal right of publicity before laying the groundwork for how it can be incorporated as a prong in the affirmative defense of fair use during a copyright analysis.

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