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Gildo Santiago
To understand the stakes of this issue and the legal tangle that surrounds it, NPR Music sought the expertise of a few people who have observed the passage of the ELVIS Act, and the evolving discourse around generative AI, from different vantage points. They include the RIAA's Glazier, a seasoned advocate for the recording industry; Joseph Fishman, a professor at Vanderbilt Law School who instructs future attorneys in the nuances of intellectual property law; Mary Bragg, an independent singer-songwriter and producer with a longtime ethos of self-sufficiency; and the three knowledgeable founders of ViNIL, a Nashville-based tech startup directing problem-solving efforts at the uncertainty stoked by AI. Drawing on their insights, we've unpacked four pressing questions about what's happening with music and machine learning.
Talk of generative AI can easily slip into dystopian territory, and it's no wonder: For more than half a century, we've been watching artificial intelligence take over and wipe out any humans standing in its way in sci-fi epics like 2001: A Space Odyssey, The Matrix and the Terminator franchise.
AI is already being put to use by music-makers in plenty of ways, many of them generally viewed as benign to neutral. The living Beatles employed it to salvage John Lennon's vocals from a muddy, lo-fi 1970s recording, so that they could add their own parts and complete the song "Now and Then." Nashville singer-songwriter Mary Bragg reported that some of her professional peers treat ChatGPT like a tool for overcoming writer's block. "Of course, it sort of became a larger topic around town," she told me, specifying that she hasn't yet employed it that way herself.
What she does do, though, is let her recording software show her shortcuts to evening out audio levels on her song demos. "You press one single button and it listens to the information that you feed it," she explained at her home studio in a Nashville suburb, "and then it thinks for you about what it thinks you should do. Oftentimes it's a pretty darn good suggestion. It doesn't mean you should always take that suggestion, but it's a starting point." Those demos are meant for pitching her songs, not for public consumption, and Bragg made clear that she still enlists human mastering engineers to finalize music she's going to release out into the world.
Early experiments with the musical potential of generative AI were received largely as harmless and fascinating geekery. Take "Daddy's Car," a Beatles-esque bop from 2016 whose music (though not its lyrics) was composed by the AI program Flow Machines. For more variety, try the minute-long, garbled genre exercises dubbed "Jukebox Samples" that OpenAI churned out four years later. These all felt like facsimiles made from a great distance, absurdly generalized and subtly distorted surveys of the oeuvres of Cline Dion, Frank Sinatra, Ella Fitzgerald or Simon & Garfunkel. In case it wasn't clear whose music influenced each of those OpenAI tracks, they were titled, for instance, "Country, in the style of Alan Jackson." The explicit citing of those artists as source material forecast copyright issues soon to come.
From the outside, it can seem like the debate over AI comes down to choosing sides; you're either for or against it. But it's not that simple. Even those working on generative AI are saying that its power will inevitably increase exponentially. Simply avoiding it probably isn't an option in a field as reliant on technology as music.
There is, however, a divide between enthusiastic early adopters and those inclined to proceed with caution. Grimes, famously a tech nonconformist, went all in on permitting fans to use and manipulate her voice in AI-aided music and split any profits. Ghostwriter, the anonymous writer-producer behind "Heart on My Sleeve," and his manager say they envisioned that deepfake as a demonstration of potential opportunity for music-makers who work behind the scenes.
Perhaps among the better indicators of the current ambivalence in the industry are the moves made so far by the world's biggest record label, Universal Music Group. Its CEO, Lucian Grainge, optimistically and proactively endorsed the Music AI Incubator, a collaboration with YouTube to explore what music-makers on its own roster could create with the assistance of machine learning. At the same time, Grainge and Universal have made a strong appeal for regulation. They're not alone in their concern: Joining the cause in various ways are record labels and publishing companies great and small, individual performers, producers and songwriters operating on every conceivable scale and the trade organizations that represent them. Put more simply, it's the people and groups who benefit from protecting the copyrights they hold, and ensuring the distinctness of the voices they're invested in doesn't get diluted. "I was born with an instrument that I love to use," was how Bragg put it to me. "And then I went and trained. My voice is the thing that makes me special."
The RIAA has played a leading advocacy role thus far, one that the organization's chairman and CEO Mitch Glazier told me accelerated when "Heart on My Sleeve" dropped last spring and calls and emails poured in from industry execs, urgently inquiring about legal provisions against deepfakes. "That's when we decided that we had to get together with the rest of the industry," he explained. The RIAA helped launch a special coalition, the Human Artistry Campaign, with partners from across the entertainment industry, and got down to lobbying.
Growing awareness of the fact that many AI models are trained by scraping the internet and ingesting copyrighted works to use as templates for new content prompted litigation. A pile of lawsuits were filed against OpenAI by fiction and nonfiction authors and media companies, including The New York Times. A group of visual artists sued companies behind AI image generators. And in the music realm, three publishing companies, Universal, Concord and ABKO, filed against Anthropic, the company behind the AI model Claude, last fall for copyright infringement. One widely cited piece of evidence that Claude might be utilizing their catalogs of compositions: When prompted to write a song "about the death of Buddy Holly," the AI ripped entire lines from "American Pie," the folk-rock classic famously inspired by Holly's death and controlled by Universal.
"I think no matter what kind of content you produce, there's a strong belief that you're not allowed to copy it, create an AI model from it, and then produce new output that competes with the original that you trained on," Glazier says.
When Roc Nation demanded the Shakespearean clip of Jay-Z be taken down, arguing that it "unlawfully uses an AI to impersonate our client's voice," the wording of their argument got some attention of its own: That was a novel approach to a practice that wasn't already clearly covered under U.S. law. The closest thing to it are the laws around "publicity rights."
"Every state has some version of it," says law professor Joseph Fishman, seated behind the desk of his on-campus office at Vanderbilt. "There are differences around the margins state to state. But it is basically a way for individuals to control how their identity is used, usually in commercial contexts. So, think: advertisers trying to use your identity, particularly if you're a celebrity, to sell cars or potato chips. If you have not given authorization to a company to plaster your face in an ad saying 'this person approves' of whatever the product is, publicity rights give you an ability to prevent that from happening."
Two states with a sizable entertainment industry presence, New York and California, added voice protections to their statutes after Bette Midler and Tom Waits went to court to fight advertising campaigns whose singers were meant to sound like them (both had declined to do the ads themselves). But Tennessee's ELVIS Act is the first measure in the nation aimed not at commercial or promotional uses, but at protecting performers' voices and likenesses specifically from abuses enabled by AI. Or as Glazier described it, "protecting an artist's soul."
Tennessee lawmakers didn't have templates in any other states to look to. "Writing legislation is hard," Fishman says, "especially when you don't have others' mistakes to learn from. The goal should be not only to write the language in a way that covers all the stuff you want to cover, but also to exclude all the stuff that you don't want to cover."
What's more, new efforts to prevent the exploitation of performers' voices could inadvertently affect more accepted forms of imitation, such as cover bands and biopics. As the ELVIS Act made its way through the Tennessee General Assembly, the Motion Picture Association raised a concern that its language was too broad. "What the [MPA] was pointing out, I think absolutely correctly," Fishman says, "was this would also include any kind of film that tries to depict real people in physically accurate ways, where somebody really does sound like the person they're trying to sound like or really does look like the person they are trying to look like. That seems to be swept under this as well."
Some industry innovators also see a need for thinking beyond regulation. "Even when laws pass and even when the laws are strong," notes Jeremy Brook, an entertainment industry attorney who helped launch the startup ViNIL, "that doesn't mean they're easy to enforce."
The tone of the advocacy for restricting AI abuses feels a little more circumspect than the complaints against Napster. For one thing, people in the industry aren't talking like machine learning can, or should, be shut down. "You do want to be able to use generative AI and AI technology for good purposes," Glazier says. "You don't want to limit the potential of what this technology can do for any industry. You want to encourage responsibility."
The online world is a place where music-makers carve out vanishingly small profit margins from the streaming of their own music. As an example of the lack of agency many artists at her level feel, Bragg pointed out a particularly vexing kind of streaming fraud that's cropped up recently, in which scammers reupload another artist's work under new names and titles and collect the royalties for themselves. Other types of fraud have been prosecuted or met with crackdownsthat, in certain cases, inadvertently penalize artists who aren't even aware that their streaming numbers have been artificially inflated by bots. Just as it's hard to imagine musicians pulling their music from streaming platforms in order to protect it from these schemes, the immediate options can feel few and bleak for artists newly entered in a surreal competition with themselves, through software that can clone their sounds and styles without permission. All of this is playing out in a reality without precedent. "There is a problem that has never existed in the world before," says ViNIL's Brook, "which is that we can no longer be sure that the face we're seeing and the voice we're hearing is actually authorized by the person it belongs to."
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