May 31, 2023 Musicology No Comments

Copyright has seen this movie before, a new technology comes along that lowers the barriers to getting stuff for free, and rightsholders, not unreasonably, panic. And then, they litigate, like “dinosaurs suing to prevent the ice age,” as I’ve heard it put. But the tech always wins, pretty much.

My first instinct is to take the nothing new under the sun sanguine approach. Technological sea change happens; it’s a net good; we adapt. And while I’m loathed to utter the phrase, “This time it’s different,” might we want to consider a couple of changes to copyright’s reach?

I find myself calling to mind that when I was a kid, my favorite birthday present, year after year, was a box of Maxell UDXL2s from Uncle Fred because that represented twenty-two record albums I could borrow from friends, bring to Fred, who had the good turntable and tape deck, and get cassette copies that were plenty good, fit in my pocket and played in Dad’s car. Nobody was buying those fancy tape decks to listen to the cassettes the labels put out. They were copiers. Twenty years later, we got MP3s, and between Napster and your CD collection and your network of friends CD collections, pretty soon you again had everything for free, exponentially more easily than with the cassettes.

For musicians, samplers did the same thing to stacks of vinyl. It became much easier to put samples on a floppy and carry a whole milk crate of records around in a Mead portfolio. Copyright litigation like the Biz Markie Alone Again (Naturally) case tapped the brakes. The free-for-all came to a halt, but Hip Hop certainly didn’t. And when these things scale, controls or not, things get hard to control. When I’m providing preventative musicology services, analyzing mostly advertising music to ensure my clients don’t infringe, it’s not uncommon that I’ll find samples that aren’t free for the taking. A beat, shout, hit, riser, etc. And then the discussion is had…
Me: “Where’d you get that sound? Do you know what that is?”
Client’s composer: “From a library. And nope.”
Me: “Okay, I understand; it happens. But we can’t have that in there.”

Copyright is still doing its job. Just don’t infringe.

But AI has me thinking about rethinking. Laws get old. I’m not sure we want to sit on our hands this time.

I first started considering this with the Rick Astley Yung Gravy situation. Yung Gravy wrote a song that interpolates “Never Gonna Give You Up,” the iconic Rick Astley song, and Mr. Gravy apparently did everything right. He licensed the underlying composition (Rick Astley doesn’t own that). Then in order to avoid having to pay to sample the record, he “re-created the samples,” meaning he didn’t sample at all. He made new recordings to sound like he had sampled the record, even hiring someone to impersonate Rick Astley and sing the signature parts. Copyright specifically allows this. You can get around sampling audio by doing a soundalike of the record.’

Let’s start there. Is there anything new about our ability to do that which might invite us to reconsider? You could’ve copied a piano roll a hundred years ago if you had the technology, but few could. But as it gets easier and easier to do a soundalike, are we outside the bounds of what copyright intended? When the soundalike is indistinguishable and cheap, is that what copyright law intends? No. Probably not.

Astley is suing. He’s not suing for copyright infringement, and he can’t. Never mind fair use; that’s another whole thing. It’s that Yung Gravy didn’t violate copyright law. He did precisely what copyright law endorses, finding ways to recreate the audio and not sample anything, and that’s where the bar is for audio copyright. Astley is suing over the impersonation, essentially. And again, the law is not friendly toward that. Bette Midler pulled off a similar case, but her impersonation was licensed to sell cars. Astley’s is just used in the artistic work; it’s just another “recreated sample.”

It’s not a new idea. For a good twenty years or so, I’ve been aware of recreated samples. There are producers who specialize in it, making indistinguishable copies of records artists would like to sample, but don’t want to pay for or can’t get the rights to at any price. It’s an interesting craft. More philosophically, society wants new art that has elements of old art in it. That makes it digestible to the masses. Society says, “Relate to something I know, and give it your own spin.”

I like all that. But with AI and it might be time to rethink. It’s never been this easy. AI can imitate your voice as well as your compositional style. That “Heart On My Sleeve” track that sounded a ton like Drake and The Weeknd but may have been created by JYKE and artificial intelligence was a shot across the bow. Does it violate copyright? No, I’d say it doesn’t. But should it?

What really has me thinking about rethinking is that the nature of AI is exponential improvement. And unless you’re really intuitive about math, you’re probably underestimating the compounding. “Heart On My Sleeve” might have lacked heart, but that essential shortcoming is trending away at an alarming rate.

Copyright has always protected the right to create derivative works, but a forensic musicologist is often asked to evaluate whether Song B is derived from Song A when such an accusation is made or a concern is raised. But generative AI is training itself on existing works! In some measure, that makes everything an AI creates a derivative work. Today, a forensic musicologist is asked to opine on whether the elements of Song B should lead to an inference that it was copied from Song A. With generative AI, it’s a given. The question then becomes, so what?

You might like getting music for free whether you’re the listener who didn’t pay the $.99 or the creator who didn’t put in the 10,000 hours, but again, copyright might need to consider what society wants or should want. If a Spotify algorithm has dutifully figured out what kind of music you like and can create more of it on the fly, do you want that?

I don’t. I can’t disconnect the music from the creator. It’s the creator’s genius and generosity that drives the beauty. But that’s me. For now.

Written by Brian McBrearty