November 25, 2021

Artificial Intelligence (AI) is capable of making music, but does that make AI an artist?

Can AI Create Better Music Than Humans?

Imagine the Spotify of the future. After a user listens to a few songs — and registers his or her reactions — the personalized playlist continues. Only now, it’s AI-generated music that is composed entirely for the individual. A user who is touched by Adele’s “Someone Like You” and John Legend’s “All of Me,” for example, might hear a spontaneously generated stream of piano-driven ballads with wide variations in dynamics and sweeping, melancholy vocal tracks.

As AI begins to reshape how music is made, legal systems are going to be confronted with some challenging questions regarding authorship. Do AI algorithms create their own work, or is it the humans behind them?

The word “human” does not appear at all in US copyright law, and there’s not much existing litigation around the word’s absence. This has created a giant gray area and left AI’s place in copyright unclear. It also means the law doesn’t account for AI’s unique abilities, like its potential to work endlessly and mimic the sound of a specific artist. Depending on how legal decisions shake out, AI systems could become a valuable tool to assist creativity, a nuisance cheating the hard-working human musicians, or both.

Law is generally reluctant to protect things “in the style of,” as musicians are influenced by other musicians all the time, says Chris Mammen, partner at Womble Bond Dickinson. “Should the original artist whose style is being used to train an AI be allowed to have any [intellectual property] rights in the resulting recording? The traditional answer may well be ‘no,’” Mammen says, “because the resulting work is not an original work of authorship by that artist.”

Artists already face the possibility of AI being used to mimic their style, and current copyright law may allow it. Say an AI system is trained exclusively on Beyoncé’s music. “A Botyoncé, if you will, or BeyoncAI,” says Meredith Rose, policy counsel at Public Knowledge. If that system then makes music that sounds like Beyoncé, is Beyoncé owed anything? Several legal experts believe the answer is “no.”

Even if an AI system did closely mimic an artist’s sound, an artist might have trouble proving the AI was designed to mimic them, says Aimonetti. With copyright, you have to prove the infringing author was reasonably exposed to the work they’re accused of ripping off. If a copyright claim were filed against a musical work made by an AI, how could anyone prove an algorithm was trained on the song or artist it allegedly infringes on?

Copyright law will also have to contend with the bigger issue of authorship. That is, can an AI system claim legal authorship of the music it produces, or does that belong to the humans who created the software?

For now, there are far more questions than there are answers. If you take these problems a few steps further, you get into issues around AI and legal personhood that start to get “existential”. Can software be creative? What if an AI software’s creations belong to no one at all?

“We haven’t figured it out,” Becker says. “This road is literally being paved as we’re walking on it.”