R&B artists Drake and The Weeknd are in the WORST mood.
A song featuring the singers’ voices, entitled “heart on my sleeve [sic],” hit the Apple Music store, Deezer, and TIDAL at roughly the same time, as well as popular music outlets like YouTube, SoundCloud, TikTok, and Spotify.
In only a matter of days, the track racked up millions of views, hundreds of thousands of downloads, and caused a huge global stir.
“heart on my Sleeve” was a Completely AI-generated “fake Drake” track that the Artists in Question had Absolutely no Hand in.
Instead, the track first appeared on the social media accounts of someone calling themselves “Ghostwriter977,” and who seems to have used AI to create the song.
From social media, it then reached the stores and outlets listed above…and from there, of course, inevitably came to the ears of Drake and The Weeknd, as well as their managers and Universal Music Group, with whom they and superstar R&B chanteuse Rhianna are signed.
Drake’s voice also appears in an AI-sampled remix of a spicy NSFW song by Ice Spice entitled “Munch (Feeling You),” as does Rhianna’s in a computer-created clip of Beyonce’s “Cuff It.”
Drake Took to Instagram to Call out Ghostwriter977, Slamming the Composition as “The Final Straw.”
UMG was quick to issue Digital Millenium Copyright Act takedown notices against the platforms where the AI-augmented songs were hosted, alleging copyright infringement. In its statement on the matter, UMG said in part, “[T]he training of generative AI using our artists’ music (which represents both a breach of our agreements and a violation of copyright law)…begs the question as to which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deep fakes, fraud and denying artists their due compensation.”
But is it Actually Copyright Infringement, or Just in Really Bad Taste and an Exceedingly Bad Idea?
Back in 2020, someone put together a deepfake of Jay-Z performing Hamlet’s infamous soliloquy. Hove and his legal team went on the offensive, issuing a DMCA takedown notice of their own on the grounds of copyright infringement.
However, the takedown was unsuccessful, and the distinctly uncanny valley-flavored rendition remains active on YouTube to this day.
YouTube and Google said the DMCA was “incomplete,” which essentially means they were not able to adequately demonstrate that actual infringement had occurred.
As Los Angeles entertainment attorney Bill Hochberg pointed out, DMCA takedowns can be a very efficient and cost-effective means of enforcing rights if they work, but proving that copyright infringement occurred in a situation where a fair use application such as parody or satire can be claimed is difficult at best.
Jay-Z might have done better to go after the creator for unfair use of his name and likeness, thereby infringing on his right of publicity (that is, the right to control and profit from his image, voice, and name), but this would likely have resulted in a protracted, expensive court battle.
Instead, the soliloquy endures, and Jay-Z wound up getting no satisfaction.
This case is relevant because it demonstrates only one of the hurdles the Internet Age and AI pose for artists and their management, as well as the courts.
There’s very little existing case law to guide situations like this, and only slightly more boilerplate legislation. Most cases involving AI and deepfakes are settled before they ever see the inside of a courtroom, meaning there’s virtually no precedent to guide judges and lawmakers.
In addition, I’ve written previously about the intrinsic difficulties of creating a body of law that keeps pace with technology–in short, it’s simply not possible. The law moves and changes only slowly, while technology moves and evolves quickly.
Making the Situation Even More Vexing for the Artists and UMG, Fan-uploaded Versions of “Heart on my Sleeve” Sprang Up Like Mushrooms in the Wake of the Official Takedowns.
Essentially, they downloaded the track when it was originally available, then put it back up on their own channels and social media feeds, further perpetuating the song’s visibility and presence.
This usage raises its own set of questions about whether such fan-uploaded content constitutes infringement, since the track was apparently released with no intention of making money, or whether it’s just the system and social media doing exactly what they were designed to do.
The Bottom Line
There’s no denying that UMG did the right thing by sending the DMCA takedown notices. One of the crucial points of IP law is that it must be vigorously defended in order to retain its validity, as I discussed previously when contemplating the future of Disney’s signature big-eared rodent in the public domain.
I think Ghostwriter977, whoever he, she, or they could potentially find themselves in a lot of legal hot water. However, what the courts might rule on a case like this is far less clear, because the copyright claim is dubious at best without settled case law or legislative language to bolster UMG’s assertions.
UMG might be better served to learn the lesson Jay-Z did and assert brand dilution and right of publicity infringement in addition to the copyright infringement allegation, if they want the results they’re obviously hoping for.
If this case makes it to the courts, and from there to settled case law, the final determination could impact everything about the way we see, understand, produce, and interact with art as creators or spectators.
For now, however, I think the odds are well in UMG’s favor, as well as that of Drake and The Weeknd…but AI continues to be a wild card whose impact on the legal landscape is far from resolved.
About John Rizvi, Esq.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com
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