Using AI generated music in performances or projects can increase legal risk, including the risk of copyright infringement or the risk of violating another's rights in their voice and likeness. There are three general types of risk involved in the use of AI generated music:
- The risk that an AI generated output contains elements of preexisting copyrighted materials;
- The risk that an AI generated output mimics the voice and likeness of a well-known celebrity; and
- The risk that an AI generated output created by a third party might be copyrighted.
In addition, you should consider the moral and ethical implications of using fully AI generated songs.
In the United States, some AI generated outputs might be copyrighted.
The United States currently confers copyright protection in works (e.g., music, art, and literature) that are created by humans. In Part 2 of the United States Copyright Office's Report on Copyright and Artificial Intelligence, the Copyright Office reiterated the following key principles of copyright law in the United States vis-a-vis AI generated works relevant to this discussion:
- Fully AI-generated works are not copyrightable in the United States. Fully AI-generated works (i.e., works created without significant human involvement) are not copyrightable in the United States. Consequently, they may be used without permission in the United States. Currently, merely entering prompts does not qualify as human authorship over the AI generated output.
- Works created by AI and humans are partially copyrightable in the United States. Works that are created by both AI and humans are copyrightable to the extent of the human's contribution to the work. For example, if a human writes a musical work but uses AI to generate the sound recording, then the musical work will be copyrighted but the sound recording will not be, even though the individual "entered" the musical work into the AI system in order to generate the sound recording.
- AI generated outputs arranged by a human can qualify for copyright protection as a "compilation". Human authors may claim copyright ownership in a work as a whole if they select, coordinate, and arrange AI-generated material in a creative way. For example, an author who writes a story, uses AI to generate images for the story, and then combines both the story and the images together and claim a copyright interest in the entire work as presented. However, the author cannot claim a copyright interest in the individual images. In other words, no one else can arrange the AI generated images in the same way.
[1].
Foreign jurisdictions might confer a copyright interest in fully AI-generated works.
Other jurisdictions currently confer copyright protection in works fully generated by AI.
In particular, Sections 9(3) and 178 of the United Kingdom's Copyright, Designs and Patents Act of 1988 protects even fully AI-generated works. Other countries and jurisdictions - like Ireland, New Zealand, and Hong Kong - also afford copyright protection in fully AI-generated works. [2] In those instances, the copyright owner is generally the person (or company) that oversaw the AI system's use (e.g., the person who supplies the inputs in order for the AI to generate the desired output or acts as the "prompt engineer").
While there is some nuance in these nations' laws, and some level of confusion and lack of clarity, using another's fully AI-generated works in these jurisdictions will generally require the copyright owner's permission.
Copyright protection for foreign works under the Berne Convention for the Protection of Literary and Artistic Works.
The United States is also a signatory of the Berne Convention. Relevant here is the Berne Convention's third principle of "national treatment." Under this principle, the United States must afford foreign creators "the same copyright protection enjoyed by American authors." [3]. Further, the "applicable law is the copyright law of the state in which the infringement occurred, not that of the state of which the author is a national or in which the work was first published." [4].
Because the United States does not afford copyright protection in works fully generated by AI to its own citizens, the United States will not protect fully AI-generated works created in foreign jurisdictions - like the United Kingdom - where such works are afforded copyright protection.
Nonetheless, a person wishing to use another's fully AI generated music in a performance or project should carefully consider the potential legal implications if the music is going to be used in cross-border situations (e.g., an ensemble intends to perform in the United States and the United Kingdom, or an ensemble intends to live or on-demand stream its performance on a worldwide basis). In those instances, the user must consider obtaining music copyright licensing for the use of the fully AI-generated works.
DISCLAIMER: These materials are being provided for informational purposes and should not be used or interpreted as legal advice. Please consult independent legal counsel to address any specific legal issues you may have or if you want additional music licensing advice. Using these materials does not establish an attorney-client relationship.
- - - - -
[1] US Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (2024) available at https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf. See pp. 7-8 (works created by nonhumans are not copyrightable in the US); pp. 8-9 (AI generated works are copyrightable to the extent of the human authored elements); pp. 18, 22-24 (given current technology, "prompts alone do not provide sufficient human control to make users of an AI system the authors of the output"); pp. 22.
[2] See, e.g., Section 21(f) of the Copyright and Related Rights Act (2000); Section 5 of the New Zealand Copyright Act (1994); and Section 11(3) of the Copyright Ordinance (Cap. 528).
[3] Creative Technology, Ltd. v. Aztech System Pte., Ltd., 61 F.3d 696, 700-701 (9th Cir. 1995); Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 89 (2d Cir. 1998).
[4] Creative Technology, Ltd. v. Aztech System Pte., Ltd., 61 F.3d 696, 700-701 (9th Cir. 1995) (internal citations and quotations omitted).