AI could be the push we need to finally expand the frontiers of image rights.

Artificial intelligence might just be the most controversial thing yet. For every accolade, there exists equal measure of critique. Surprisingly, AI is said to be in its developmental stages.¹ One wonders what is to come years from now.

Increased use of AI in the creative sector breeds even more questions as there appears no clear delineation of rights, or the status of AI generated works, nor are there effective rules guiding its use and the extent that qualifies as fair use. Perhaps AI has done more harm than good. These sentiments abound in consideration of harmful uses, specifically, the employment of deep fake AI in fraud², revenge porn, as well as voice and video cloning. Unsurprisingly, AI generated music exists. These new trends ignite endless conversations on ethics and law as well as prospects for creatives and the future of the music industry.

AI generated music is a fascinating concept that utilizes deep fake technology to simulate the voices of individuals, including popular artists, using a deep neural machine learning mechanism. This technology creates songs that emulate the voices and styles of these artists.

Skygge made the first attempt at creating AI generated music with the release of the album “Hello World” in 2018.³ AI in music is traceable as far back as 1958⁴ and has since evolved from creating piano pieces to full-blown songs.⁵

The ‘Heart on My Sleeve’ song created by anonymous "ghostwriter 977" allegedly using audio deepfake AI is one of the most recent attempts at a mimic collaboration between The Weeknd and Drake. Pertinent questions arise. What does this mean for individuals whose voices are cloned? Is the use of previous protected works to train Al models copyright infringement? Is this a copyright or image right issue?

There appears to be widespread consensus that waking up to hear music that closely resembles one’s own style or sound would be perceived as absurd. The deep fake technology poses really worrisome challenges.

Drake and The Weeknd are highly acclaimed artists with significant impact and reach in the music industry. Their most notable collaboration was the “Take Care” album released in 2011.⁶ Despite their successful past collaboration, the two musicians have not worked together in recent years. The forced collaboration agenda may not necessarily appeal to either artist and a more suitable solution could be sought.

VOICE SIMULATION AND IMPLICATION FOR ARTISTS

The unauthorised use of a person’s voice provokes the image/publicity rights discussion. Here, there is a distinction to be drawn between rights embedded in images (pictures) and publicity rights. This conversation tilts towards the latter. Image rights comprise a series of rights that accrue to a person by virtue of their distinguishable characteristics, as well as their status as public figures. These rights are often discussed in light of commercial exploitation. They include the right to profit from their image as well as restrict everyone else from a misappropriation of such image. One would ordinarily think about image rights in light of pictures and other physical representations such as drawings or sculpture. In typical cases, where one commercially uses the picture, name, or likeness of another in a way inconsistent with their rights, there’s a violation.

The key term here is likeness. It is settled that beyond an appropriation of physical and visual attributes, an infringement of image rights would also include an unauthorised use of a person’s voice. It has been held that a distinctive voice forms a part of one’s public image. The case of Midler v Ford Motors⁷ provides an apt illustration of the fact that a voice can be misappropriated. This case enunciates three key principles relevant to this conversation:

• “When a voice is a sufficient amount of a celebrity’s identity, the right of publicity protects it.”

• “When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort...”

• It was held that for one to fully recover damages, they have to establish that their voice constitutes a sufficient aspect of their identity.⁸

These principles, when applied in the Drake/The Weeknd context, would reveal the possibility of claims of misappropriation of image. It is apparent that the voices of both artistes form a sufficient amount of their identity and are attached to their income. While elements of misappropriation may be construed primarily because there was economic benefit attached to the song,⁹ it is much more than that.

The unauthorised use of one’s image equally evokes the moral rights conversation. Although peculiar to Copyright, the underlying principle of moral rights is the protection of the bond between an artist and his work, which is viewed as an extension of his personality. It affords such an artist the opportunity to uphold his bond with his work, as well as detach himself from mimic works that appear to originate from him. Borrowing from these coffers, a voice contributes heavily to the expression of a singer and in most cases is so distinct that a personality is tied to it. Nuances exist in each circumstance, but the possibility of a violation of personality as well as a breach of moral rights by a voice simulation may be construed.

One pertinent debate is whether image rights should accrue to regular people or just celebrities because of added commercial value. This is an important question considering trends like deep fake pornography and possible effects on regular people. Individual rights of privacy and freedom from defamation exist and are protected by various other laws. Given recent developments, it is natural to question the level of protection that is afforded by existing laws. The concept of image rights for regular people is still very much untouched.

THE IMPLICATION OF VOICE SIMULATION ON COPYRIGHT

There are three angles to this.

Firstly, copyright law favours originality and fixation concurrently. One can not easily claim that a simulation of their voice is an infringement of their copyright. This is attributed to the fact that a voice, on its own, however original, is not fixed in itself. A fixation arises with a reproduction of such voice in a definite medium of expression – a sound recording. The result is that one’s voice is not eligible for copyright protection unless it is fixed in tangible form. While originality may fly, the fixation doctrine bars any possibilities. However violated an artist feels, proof of infringement of previous protected works will be the most likely avenue to pursue a copyright infringement where there is a voice simulation.

The second copyright issue this poses is copyright in AI generated music. The law is clear that human creation is required for copyright to be invoked.¹⁰ Issues such as the level of intervention and assistance from AI will most likely be decided on a case to case basis. Here, fixation is not in issue but originality is. The originality of AI generated works is greatly in question and efforts are being made to answer these questions.¹¹

The third copyright issue addresses possible infringement arising from the use of previous works to train AI models. AI operates on information gathered from programmed datasets. Infringement would depend on a lot of factors, a huge one being whether or not such works are in public domain. The Universal Music Group, representing both artists requested that the ‘Heart on My Sleeve’ song be withdrawn from all streaming platforms on the basis of copyright infringement.¹² It alleged that the training of generative AI using copyrighted works is a violation. An infringement entails unauthorised reproduction, adaptation, performance, display or distribution. A claim of direct copying with the intention of training AI models or creating derivative works would have a high likelihood of success if substantiated. Whether or not the doctrine of fair use applies is determined by peculiar circumstances and merits of each case and perhaps litigation would provide some clarity on these issues.

CONCLUSION.

The entertainment industry is the hub of intellectual property rights and with increased creativity and AI posing novel challenges, there’s a need for proper expansion on the laws of image rights across the world. There appears to be a shortage of laws specifically governing image/publicity rights. The law protects these rights under different branches like data privacy laws, trademark law, defamation, copyright and passing off. With modern trends, legislative review is pertinent for a proper delineation of the scope of protection offered by the law. There is need to protect the image rights of individuals as laws on defamation or privacy may not always suffice.

END NOTES

¹World Economic Forum, ‘Here’s how experts see AI developing over the coming years’ Feb 16th 2023 https://www.weforum.org/agenda/2023/02/experts-ai-developing-over-the-coming-years/ Accessed 6th May 2023.

²Jesse Damiani ‘A Voice Deepfake Was Used To Scam A CEO Out Of $243,000’ Forbes Magazine, Sep 3rd 2019 https://www.forbes.com/sites/jessedamiani/2019/09/03/a-voice-deepfake-was-used-to-scam-a-ceo-out-of-243000/?sh=17c9cde42241 accessed 6th May 2023.

³Hello world album, the first album composed with artificial intelligence https://www.helloworldalbum.net/#:~:text=Hello%20World%20is%20the%20first,result%20of%20a%20long%20adventure.&text=In%201958%2C%20AI%20was%20used,chorales%20(the%20Illiac%20suite).

⁴Op.cit.

⁵Wikipedia, ‘Music and Artificial Intelligence’ https://en.m.wikipedia.org/wiki/Music_and_artificial_intelligence#:~:text=7%20External%20links-,History,pattern%20recognition%20in%20various%20compositions accessed 4th May 2023.

⁶ T. Smith, ‘ All Of Drake & The Weeknd’s Collaborations’ Jan 11th 2017

https://www.hotnewhiphop.com/58729-all-of-drake-and-the-weeknds-collaborations-news

⁷849 F.2d 460 (9th Cir. 1988).

⁸Edwin F. McPherson, ‘ Voice Misappropriation In California – Bette Midler, Tom Waits, and Grandma Burger.’ University Of Miami Business Law Review (Winter/Spring 2003 https://mcpherson-llp.com/articles/voice-misappropriation-in-california-bette-midler-tom-waits-and-grandma-burger/#:~:text=The%20court%20determined%20that%20Midler,committed%20a%20tort%20in%20California

Accessed 5th May 2023.

⁹The song is said to have earned US$9,400 globally across all streaming platforms. https://en.m.wikipedia.org/wiki/Heart_on_My_Sleeve_(ghostwriter977_song)#:~:text=More%20than%20a%20thousand%20videos,%249%2C400%20globally%20across%20all%20platforms. Accessed 6th May 2023.

¹⁰Can Works Created with AI Be Copyrighted? Copyright Office Issues Formal Guidance

March 17, 2023 https://www.ropesgray.com/en/newsroom/alerts/2023/03/can-works-created-with-ai-be-copyrighted-copyright-office-issues-formal-guidance#:~:text=According%20to%20the%20policy%20statement,meet%20the%20human%20authorship%20requirement. Accessed 6th May 2023.

SOURCES

Chloe Veltman, When you realize your favorite new song was written and performed by AI’ April 21, 2023 https://www.npr.org/2023/04/21/1171032649/ai-music-heart-on-my-sleeve-drake-the-weeknd

Davidson Oturu, ‘Nigeria: Protection Of Image Rights (Part 1)’ October 29th 2019

https://www.mondaq.com/nigeria/intellectual-property/858520/protection-of-image-rights-part-1

Jack Irvin, ‘Drake Recalls His First Time Listening to The Weeknd, Praises Him for Headlining Toronto Stadium’ July 8th 2022 https://people.com/music/drake-recalls-his-first-time-listening-to-the-weeknd-music-in-2010/#:~:text=They%20later%20collaborated%20on%20five,Drake’s%202011%20album%20Take%20Care.

Jess Doshi, ‘Robot Drake is more “Drizzy””: Drake and The Weeknd’s Heart On My Sleeve AI song takes the internet by a storm’ April 30th 2023 https://www.sportskeeda.com/pop-culture/news-robot-drake-drizzy-drake-the-weeknd-s-heart-on-my-sleeve-ai-song-takes-internet-storm

Rocket Lawyer, ‘Image Rights’ https://www.rocketlawyer.com/gb/en/business/protect-intellectual-property/legal-guide/image-rights#:~:text=Image%20rights%20concern%20the%20various,%2C%20slogans%20or%20logos%20etc).

UBS, ‘Artificial Intelligence: a new dawn.’https://www.ubs.com/microsites/artificial-intelligence/en/new-dawn.html

Unini Chioma, ‘Brief Overview Of The Legal Framework For Image Rights In Nigeria’ August 12th 2019 https://thenigerialawyer.com/brief-overview-of-the-legal-framework-for-image-rights-in-nigeria-by-christian-aniukwu/#:~:text=Copyright%20law%20does%20not%20protect,otherwise%20known%20as%20publicity%20rights.

Betul Colak, ‘Legal Issues of Deepfakes’ January 19th 2021.

https://www.internetjustsociety.org/legal-issues-of-deepfakes

LBB Editorial, ‘What’s the Law on Deepfake Celebs in Ads and Entertainment?’ Jan 24th 2023

https://www.lbbonline.com/news/whats-the-law-on-deepfake-celebs-in-ads-and-entertainment

Wikipedia: Audio deepfakes

https://en.m.wikipedia.org/wiki/Audio_deepfake

Wikipedia, ‘ Personality Rights’ https://en.m.wikipedia.org/wiki/Personality_rights