Music Law Archives – Southern California Law Review

“Fake Drake”: Vindicating Copyright Ownership in the Advent of Generative AI Music

April 2025April 2025Melissa Schneider*

INTRODUCTION

In April 2023, “Heart on My Sleeve” almost instantly went viral on TikTok, grabbing the attention of millions of viewers who were intrigued by what seemed to be an unreleased collaboration between Drake and The Weeknd.¹ The song not only sounded extremely similar to its alleged vocalists and their music styles, but the lyrics also reflected events and people relevant to their lives, resulting in a very convincing piece of music. But it quickly became clear that this song was not, in fact, created nor sung by Drake and The Weeknd; instead, it was the product of artificial intelligence (“AI”) music-generating programs used by Ghostwriter977, the poster of the video.² After amassing millions of views across various platforms in just a few days, streaming services pulled the song,³ and those searching for it on YouTube were met with a message stating the video was “no longer available due to a copyright claim by Universal Music Group.”⁴

While concerns about this particular song seem to have been adequately addressed by streaming services quickly pulling it from their platforms, the impact of Ghostwriter977’s video was profound and widespread. While generative AI had already aroused questions and concerns generally, ⁵ “Heart on My Sleeve” directed the world’s attention to the music context. While this is not the first instance of a controversial AI-generated musical work,⁶ the nature and quality of the song revealed just how advanced generative AI technology has become, sparking strong responses ranging from excited curiosity to extreme outrage.⁷

The key question that the world is now more intently wondering, as artists, labels, and music representatives wave the flag of “copyright infringement,” is whether U.S. copyright law, as it stands today, can be a source of recourse for artists to take legal action in response to AI-generated music. Due to the novelty of the technology and the nuances of copyright law in the music context, we are without the legal precedent one would usually look at to find a more definitive answer. Because copyright holders’ concerns are pressing and nothing suggests that copyright law will soon be amended to address them, analogizing to similar cases and drawing on the fundamental principles of, and rationales for, copyright protection is necessary to develop predictions as to how courts will rule in a copyright case of Artist v. AI User.

Copyright is concerned with protecting the rights of creators and encouraging innovation, meaning that there remains an additional concern about being overly restrictive and inhibiting creativity and progress. In the context of AI-generated music and copyright infringement, we are placed at what some deem a crossroads,⁸ left to decide whether we value human artists’ creativity and resulting work more or less than we value technological innovation and its potential for important advancements. On one side of this policy debate is the music industry, which generated $15.9 billion in revenue in 2022 in the United States alone,⁹ and represents an art form that has brought humans together since the beginning of time. There is a high barrier to achieving conventional success in the music industry, which some interpret to mean that only the very best succeed as a result of their hard work and dedication. But the other side of the debate takes these same ideas to highlight how innovative generative AI music should be encouraged. Unlike the music industry, which is extremely difficult to break into, there is a very low barrier to entry for generative AI use, as it is largely accessible and there are many tools one can use to learn how to harness the technology.¹⁰ Some see this as an opportunity to diversify music and the people making it, which has many benefits. There are strong opinions on both sides, placing this debate squarely within the realm of what legislators anticipated would be a subject of copyright controversy—how can we balance protecting existing creations and encouraging future innovations? ¹¹

Absent both a clear answer to this question and any indications that existing copyright law will soon be amended to specifically address the issue of potential copyright infringement by generative AI music outputs, we must look to the interpretation of current copyright law in similar situations. This Note will use case law to shed light on how courts might treat copyright infringement suits involving AI-generated music. To illustrate how current copyright law will apply to real AI-generated music, two hypothetical songs will be used as examples, both based on songs that could be created using existing generative AI music systems.¹²

Sample Song A is a rap song created by User A using Uberduck.ai (“Uberduck”). Sample Song A was created using a generic punk rap beat provided by Uberduck. The voice used to create Sample Song A is an option specifically labeled as Kanye West in the era of Yeezus, West’s provocative 2013 album. The lyrics are generated by Uberduck, using the prompt “rebellion, slavery, superiority, unapologetic, perseverance, individuality, and power,” all of which are words that have been used to describe West’s reputation, as well as the themes of Yeezus and particularly, the hit song “Black Skinhead.”¹³ The resulting rap sounds nearly identical to West, with lyrics closely tied to themes he has focused on. The unsuspecting listener may very likely mistake the song for a new release by West himself. While the song sounds like it would fit in with West’s discography, the actual music and lyrics are completely different from any of his prior releases.

Sample Song B is an emotional ballad, and User B created the musical composition using MuseNet. In creating Sample Song B, they selected Adele as the vocal style for the song, and the selected instrument was limited to piano. The introduction to Sample Song B uses the well-known piano phrase that functions as a melodic hook throughout Adele’s “Someone Like You,” an option provided by MuseNet. This piano segment is arguably the most distinctive musical feature of “Someone Like You,” and is known as an arpeggio, which melodizes chords.¹⁴ The exact piano chords and resulting melody are used—just slightly sped up—but after the introduction, the chords begin to differ. However, the song returns to the piano phrase after the chorus, resulting in a song that is musically similar to “Someone Like You.” User B added lyrics using an outside platform after MuseNet finalized the composition. Sample Song B’s lyrics were written to evoke feelings of both love and despair, and the words themselves speak to a failed relationship, regret, and a longing for love; thus, the song, both lyrically and musically, bears a notable resemblance to “Someone Like You” and Adele’s music generally.¹⁵ The lyrics are sung in a feminine, mezzo-soprano voice, but unlike Sample Song A, the voice does not directly imitate its style inspiration.

Before applying copyright law to the sample songs, this Note provides relevant background information. Part I introduces generative AI, providing an overview of how the technology works and details on how the systems used to make the sample songs produce musical works. Additionally, the U.S. Copyright Office’s statements about AI are discussed. Part II focuses on current copyright law—what it requires, what it protects, and how infringement actions work. Music occupies a unique area of copyright law because of the separation between the composition and the sound recording, so limitations and exclusions are discussed in detail. Because courts have not specifically addressed AI on many occasions, analogizing to other cases involving technology helps anticipate the judicial response to this novel technology. Part III applies copyright law to the sample songs and predicts likely outcomes. This includes an analysis of how the songs may fare in all steps of an infringement action, from defenses to statutorily imposed limitations on what can be the basis of a lawsuit. This analysis reveals how copyright law might help artists and how it may hurt them. While artists may potentially find support in trademark law or the right of publicity, this Note will focus solely on copyright law as a vehicle for attempting to vindicate their rights. Finally, Part IV discusses policy implications associated with trying to fit AI-generated music into our developed system of copyright law, highlights the key concerns for artists, and points to gray areas that warrant clarification. The conclusion of this Note summarizes anticipated outcomes and the complicated nature of fitting new technology into the current framework of copyright law.

I. BACKGROUND: GENERATIVE ARTIFICIAL INTELLIGENCE

A. How the Technology Works

AI is “a science and a set of computational techniques that are inspired by the way in which human beings use their nervous system and their body to feel, learn, reason, and act.”¹⁶ More simply, AI can be thought of as “a man-made object with thinking power.”¹⁷ At the foundation of any program is data input, a starting point akin to the intaking of information that constitutes the first step of the human learning process; the difference between AI and human learning in this respect, however, is that AI systems require massive amounts of data to be effective.¹⁸ How exactly systems use data and produce desired results depends on the learning approach. The most prominent systems are machine learning (“ML”) and deep learning (“DL”).

ML is the “most promising and most relevant domain” to apply AI.¹⁹ ML is a way of learning from big data, and its algorithm is self-adaptive, meaning that through experience, it can get new patterns and improve “perception, knowledge, decisions, or actions.”²⁰ The key feature that distinguishes ML is that the goal is for the algorithm to learn to find its own solutions, as opposed to learning to follow human-defined rules.²¹ DL uses “large multi-layer (artificial) neural networks”²² (“ANNs”) to carry out tasks. ²³ DL algorithms “filter[] the input through many layers,” resulting in the ability to “classify and predict the data.”²⁴ “Computational nodes” are created and trained, and ultimately make decisions through a filtering process that is similar to the human brain.²⁵

This Note will focus specifically on generative AI applications, which are created using generative modeling.²⁶ Generative AI models have a “machine learning architecture” and use learned patterns to generate new data samples.²⁷ There are various generative AI systems, each tailored to a desired output goal; for example, ChatGPT is a generative AI system that generates text and is based on an “X-to-text” model.²⁸ Because generative AI is a subset of ML, the training process requires substantial amounts of data. How models are trained can vary greatly, so this Note will focus on the training used for the specific systems that generate music.

B. Generative AI in the Music Context

There are important nuances to note when discussing generative AI systems that create music as opposed to other output domains. Systems that generate music have attracted a lot of attention purely because the output is something we have long considered to be an “innate pursuit of human beings,” as music is viewed as a human expression that encompasses both “creativity” and “collaboration.”²⁹ While many people remain very opposed to generative AI music,³⁰ it is undeniable that the technology has advanced rapidly in ways that have vastly improved the output quality; many generative AI music systems are now able to account for the subtle but important nuances in recorded music and generate output accordingly.³¹

Most music-generating systems involve combinations of ML, DL, and ANNs. The sample songs guiding this Note’s application of copyright law to AI-generated music used the following two noteworthy systems: Uberduck.ai and MuseNet, both of which exist on different ends of the technology spectrum. While these systems are different in relevant ways that will be discussed, it is important to note a key similarity is that they are trained on existing music, so it is almost guaranteed that at least some of the input includes copyrighted songs that train the model to invoke a sound or style.

Uberduck, used for Sample Song A, is a speech synthesis system powered by DL that generates “high-quality and expressive voice output.”³² Uberduck utilizes several models for speech synthesis, including SO-VITS-SVC, HiFi-GAN, and other text-to-speech models.³³ SO-VITS-SVC is a DL model, trained using audio files to convert recordings into singing voices.³⁴ SO-VITS-SVC references “SoftVC,” “[c]onditional [v]ariational [a]utoencoder with [a]dversarial [l]earning,” and “singing voice conversion.”³⁵ Using a source audio, SoftVC, or “soft voice conversion” separates a singer’s voice into “frequency bands,” which are encoded to analyze “distinct characteristics” of a voice.³⁶ A conditional variational autoencoder with adversarial learning uses adversarial training aimed at enabling text-to-speech models to handle more varied data.³⁷ Lastly, singing voice conversion, which can be thought of like a voice cloner, converts one singing voice into another while maintaining features like pitch, rhythm, and notes from the original input.³⁸ Uberduck also uses HiFi-GAN, which is a specialized variant of the generative model Generative Adversarial Network (“GAN”).³⁹ GANs use generators and discriminators, which work together in a repeated feedback process to help the generator produce results that pass the discriminator’s authenticity test.⁴⁰ The discriminator is trained to determine whether an audio sample is real or fake, which aids the generator in “better approximat[ing] the distribution of real data,” resulting in more realistic-sounding outputs.⁴¹ Through its “loss function,” the generator improves its output by incorporating feedback from the error in results, which is the difference between actual and predicted outputs.⁴² This process is illustrated in Figure 1 below. The difference with HiFi-GAN, specifically, is that it is tailored to “transform recorded speech to sound as though it had been recorded in a studio.”⁴³ The use of HiFi-GAN is an important component of making the resulting song sound believable. Together, these technologies and the other text-to-speech models work to mimic the voice of an input audio and make it sound as authentic as possible.

Figure 1. The HiFi-GAN Process

While both systems use DL, MuseNet, used for Sample Song B, is not a text-to-speech system, and is instead a music composition generator that uses a transformer model, which is illustrated in Figure 2 below. MuseNet uses MIDI files encompassing a wide variety of musical styles as its training data.⁴⁴ In training the system, sequential data is provided in the form of sets of notes, and it is asked to predict what the next note will be.⁴⁵ Data is encoded in a way that “combines expressivity with conciseness.”⁴⁶ Similar to the adversarial elements of Uberduck, MuseNet has an “inner critic” during training which asks the model if a sample was generated by the model or from the dataset.⁴⁷ Additionally, MuseNet created composer and instrumentation tokens which are used during training to teach the model to utilize such information when making predictions; the result is that the model can be conditioned to generate output in a certain style using prompts.⁴⁸ Essentially, MuseNet uses the music styles and MIDI files it has been trained on to generate note sequences that sound realistic, as if human-generated.⁴⁹

Figure 2. Transformer Model Training

With the internal side of the technology having been established, the next component is the user side. When using Uberduck—specifically the “AI Generated Rap” feature used to create Sample Song A—the user is able to select a beat from a list of premade generic beats.⁵⁰ After that is chosen, users have a choice to input custom lyrics or utilize Uberduck’s AI lyric generator, which requires entering a detailed “description of what you want your rap to be about.”⁵¹ Finally, the user selects an artist from a list of “[r]appers” to be the voice of their song.⁵² The end result is a complete rap song. As for MuseNet, the initial prompts include style, introduction, instruments, and number of tokens.⁵³ Style options range from Mozart to Lady Gaga to Disney.⁵⁴ Similarly, the introduction options cover a wide range, including the intro from “Someone Like You” by Adele, which is used in Sample Song B.⁵⁵ The number of tokens used corresponds to the length of the song. The end product is a musical composition, to which lyrics can be added outside the platform.⁵⁶

C. Copyright Office on AI

In August 2023, the U.S. Copyright Office (“Office”) published a notice of inquiry on copyright and AI, which followed the March 2023 launch of the Office’s AI Initiative.⁵⁷ This inquiry specifically focused on policy issues relating to copyrighted works being used to train models, the copyrightability of AI-generated works, potential liability for AI-generated work that infringes on a copyright, and how to treat AI-generated works that imitate artists.⁵⁸ In July 2024, the Office published Part 1 of the Report on Copyright and Artificial Intelligence (“Report”), which addresses the topic of digital replicas.⁵⁹ Specifically referencing “Heart on My Sleeve,” the Office ultimately concluded that it believes the time has come for a new federal law to address unauthorized digital replicas.⁶⁰ With respect to copyright law specifically, the Office broadly indicated that a victim of a digital replica in the form of a musical work may have a claim for infringement of the copyrighted work, but clarified that a replica of one’s voice alone does not seem to constitute copyright infringement.⁶¹ Because Part 1 of the Report provides little insight with respect to the potential vitality of such copyright claims and primarily focuses on legislative suggestions, the Office’s previous statements and approaches in similar technology-related contexts remain potentially revelatory.

While this inquiry is the Office’s most comprehensive look into AI, it is not the first time it has addressed AI. The Office addressed concerns about technology-generated works in 1965, especially after receiving an application for registration of a “musical composition created by a computer.”⁶² Although the issues posed by AI today are, in many respects, far more complex given the vast technological advancements in recent years, the general questions about how non-human-generated works fit or do not fit into copyright have been pondered for nearly six decades. The Office, in operating a copyright registration system, necessarily adjusts its practices according to shifts in technology.⁶³ In deciding whether to register a claim, a “registration specialist” is tasked with determining whether a work qualifies as copyrightable subject matter and satisfies the formal and legal requirements of the copyright statutes and the Office’s practices.⁶⁴ As such, the Office’s practices regarding what is registered generally reflect contemporary understandings of the scope of copyright law in light of modern developments.

The question of copyright protection for AI-generated works has notably been addressed in three recent situations. The first situation, which ripened into litigation, involved the Office’s denial of registration for “A Recent Entrance to Paradise,” an artwork created by an AI system, the “Creativity Machine,” which was listed as the author. The Office cited the lack of human authorship as its basis for denial, a requirement that derives from the statutory criteria that protection is extended only to “original works of authorship.”⁶⁵ While “original work of authorship” is not defined statutorily, courts have uniformly interpreted it to limit protection to human authors,⁶⁶ and the Office has adhered to that.⁶⁷ The Office also rejected the argument that AI can be an author under a “work-for-hire” theory.⁶⁸ The user challenged the denial as an “arbitrary, capricious, . . . abuse of discretion . . . not in accordance with the law, . . . and in excess of [the Office’s] statutory authority.”⁶⁹ The court upheld the denial, stating the lack of human involvement pointed to the “clear and straightforward answer” that it does not give rise to copyright.⁷⁰ This situation differs from a second scenario in which the Office registered “Zarya of the Dawn,” a comic book created using an AI system known as Midjourney.⁷¹ The images in the book were created by Midjourney in response to the user’s text prompts, but the user did not control the creation process; as such, the images themselves were not protectable based on the human authorship requirement, so copyright extended only to the text she wrote herself and the selection and arrangement of the elements of the book, including the images.⁷² The third situation involved the denial of copyright registration for an AI-generated artwork entitled “Théâtre D’opéra Spatial” based on the Office’s conclusion that it contained “more than a de minimis amount of content generated by [AI].”⁷³ The Office offered to register the work if the user would exclude AI-generated features, as there were some elements of human creation, but he refused and challenged that requirement; nonetheless, the Office stood by the requirement of disclosing AI-generation.⁷⁴

Due to situations like these,⁷⁵ the Office clarified how AI-generated works are examined and registered in a recent statement.⁷⁶ In the statement, the Office explains that in making registration decisions about works created using AI, the first question is whether the work is “basically one of human authorship, with the computer [or other device] merely being an assisting instrument,” or if a machine conceived and executed the traditional elements of human authorship.⁷⁷ The Office notes that when AI systems receive prompts from humans that enable the generation of “complex . . . musical works,” the author is the technology, not the prompt-writing human, so it would not be registered.⁷⁸ The Office states that there are cases in which AI is used in conjunction with sufficient human effort to permit registration. In such situations, copyright protects only human-authored elements.⁷⁹ While AI adds nuance to registration inquiries, an important takeaway is that the Office stands firmly behind the human authorship requirement.

II. LEGAL BACKGROUND: COPYRIGHT LAW

Codified in Title 17 of the United States Code, the Copyright Act of 1976 (“Copyright Act”), including its subsequent amendments, is the governing source of copyright law.⁸⁰ Congressional authority to enact such legislation arises from the “Copyright Clause” in the U.S. Constitution, which vests in Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”⁸¹ In the time since the enactment of the Copyright Act, there have been many amendments, resulting in a large body of law that simultaneously outlines rules and requirements with specificity and leaves considerable room for judicial interpretation.

A. Requirements for Protection

Under the Copyright Act, copyright “subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”⁸² Copyright does not extend to underlying ideas.⁸³ The Copyright Act explicitly includes “musical works, including any accompanying words” and “sound recordings.”⁸⁴ Generally, the requirements for copyright protection break down into four separate but interrelated requirements: (1) work of authorship, (2) tangible fixation, (3) originality, and (4) creativity.

Legislative history indicates that the phrase “work of authorship” is intended to provide flexibility.⁸⁵ The broad categories of works of authorship in § 102 of the Copyright Act are illustrative, not exclusive.⁸⁶ As mentioned, this requirement has been interpreted to require human authorship, but the Office’s recent statement suggests technology can be involved in the “authorship,” so long as there is sufficient human involvement.⁸⁷ A work satisfies the fixation requirement if it is fixed in a “tangible medium of expression” that is “sufficiently permanent or stable.”⁸⁸ Congress has indicated that fixation form does not matter.⁸⁹ A fixed composition may be written sheet music, while a fixed sound recording may be a recording saved onto a compact disc.⁹⁰

Fixed works of authorship must also satisfy the requirements of originality and creativity,⁹¹ which require “independent creation plus a modicum of creativity.”⁹² Therefore, so long as the work is independently created, a lack of novelty does not preclude copyright protection.⁹³ The “modicum of creativity” standard is a relatively low threshold, requiring only that the work goes beyond independent effort⁹⁴ and bears a “spark of distinctiveness in copyrightable expression.”⁹⁵

There are unique considerations with regard to these requirements in the context of musical works because determining the requisite creativity in music can be contentious.⁹⁶ Creativity is said to inhere in one of three key elements of a musical work—harmony, melody, or rhythm.⁹⁷ While the typical source of protection for compositions is melody, courts vary in this regard, with sufficient creativity being found and denied on each basis.⁹⁸ Protection for musical works includes “accompanying words” or lyrics;⁹⁹ when lyrics and musical elements are integrated into one work, they are protected together and on their own.¹⁰⁰ Lyrics must also satisfy the requirements for protection, and whether lyrics qualify for protection is very situation-dependent.¹⁰¹

B. Rights Conferred by Copyright Ownership

Section 106 of the Copyright Act outlines the exclusive rights of a copyright holder, which broadly include reproduction, distribution, adaptation, performance, and display rights.¹⁰² Actionable copying may pertain to infringement of any of these exclusive rights but must include infringement of at least one.¹⁰³ AI-generated music is most likely to implicate the reproduction, adaptation, and distribution rights.

Reproduction Right

The first exclusive right relevant to AI music is the right to “reproduce the copyrighted work in copies or phonorecords.”¹⁰⁴ In the music context, a USB with a sound recording would qualify as a phonorecord, while a written composition of the song, like sheet music, would be considered a copy.¹⁰⁵ To infringe on the reproduction right, the subsequent work must be a tangible, material, fixed object. An important music-specific caveat in 17 U.S.C. § 114 (“section 114”) is that the reproduction right in recordings is “limited to the right to duplicate the sound recording in . . . phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.”¹⁰⁶ This means that phonorecords with sounds that merely imitate the original sound, as opposed to actually recapturing the original sounds, do not infringe on the reproduction right, “even though such sounds imitate or simulate those in the copyrighted sound recording.”¹⁰⁷ This has been interpreted as precluding liability for substantially similar imitations of a recording absent any exact copying; this is important in the context of music sampling, as it requires proof of exact duplication.¹⁰⁸

Adaptation Right

Copyright owners also have the exclusive right to “prepare derivative works based upon the copyrighted work,” as well as to authorize others to do so.¹⁰⁹ A derivative work is one that must be “based upon one or more pre-existing works,” which is interpreted to mean that a latter work incorporates a sufficient amount of the original work to go beyond mere inspiration.¹¹⁰ The adaptation right is closely tied to the other exclusive rights, namely the reproduction and performance rights. When a work is deemed to be a derivative, there is a necessary implication that the reproduction or performance right was also infringed because the second work is substantially similar.¹¹¹ With respect to sound recordings, the right to produce derivative works is limited to those in which “actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.”¹¹² The independent fixation exclusion to the reproduction right also applies to the adaptation right.¹¹³ As with the reproduction right, this limitation finds notable importance in the realm of music sampling and licensing.¹¹⁴

Distribution Right

The third exclusive right relevant to music is the right to “distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership.”¹¹⁵ To violate the distribution right, there must be a tangible product, whether a phonorecord or a copy. The distribution right in the music context involves the right to sell copies, like sheet music, and phonorecords, such as CDs, of the musical work to the public. In the context of Internet platforms, specifically music platforms for sharing sound recordings, there are questions as to whether making copyrighted works available to the public constitutes a violation of this right. Although courts have not unanimously agreed on the answer, it seems clear that making sound recordings available for download by the public on file sharing networks is likely sufficient to demonstrate infringement.¹¹⁶ Unlike the reproduction and adaptation rights, section 114 does not explicitly name the distribution right in limiting exclusive rights in a recording to exact copies; however, this is likely immaterial because a mere imitation of sounds in the original would seemingly fall outside the definition of the right as applying to distributing copies or phonorecords of the original work.¹¹⁷

C. Additional Music-Specific Considerations

1. Musical Composition Versus Sound Recordings

One unique aspect of music copyright is that there are two sources of protection in a song: the musical composition and the sound recording.¹¹⁸ These are considered distinct elements of a musical work, with each being independently copyrightable.¹¹⁹ While both elements are subject to the same requirements for protection, it is important to distinguish between the two, as the law applies differently to each in certain respects. This distinction plays an overall significant role in infringement actions, from whether something is actionable to what royalties are owed for a use.

While some cases have blurred the line between the composition and recording,¹²⁰ others reflect the importance of keeping them separate, as it is clear that determining applicable case law and potential arguments depends on whether the claim is based on recording or composition. Cases are also revelatory of how outcomes differ based on which element is allegedly infringed.¹²¹ Pertinent to this Note’s discussion, it is both possible and not necessarily uncommon for a work to infringe on the rights of ownership of the composition, but not the recording. Because infringement of the recording has been read to require actual duplication of sounds, a work that recreates but does not directly sample a guitar solo can infringe on the composition but give rise to no cause of action for infringement of the sound recording. Thus, this Note will continue to emphasize the line between these two elements, and how AI-generated music may or may not infringe on each.

Licensing and Sampling

Licensing and sampling are unique considerations in the music context. Licensing, whether it is compulsory and imposed by the Copyright Act or voluntarily negotiated,¹²² functions as a means of ensuring that owners are compensated for the use of their work. How licenses are obtained and what they allow a licensee to do depends on what aspect of the musical work is involved and who is seeking to license it. Central to the discussion in this Note, however, is the royalty aspect of licensing. Because the hypothetical uses analyzed in this Note did not involve licensing the songs, the artists did not receive compensation in royalty payments for these uses.

A very common practice in the music industry that potentially implicates the need for obtaining a license is sampling. “Sampling” refers to the practice of incorporating short segments of sound recordings into new recordings.¹²³ Typically, when the word sampling is used, it means there is a literal duplication of some portion of the original work, not merely an imitation.¹²⁴ Because sampling involves using a clip in an identical sounding way or with limited alterations, the issues presented by sampling usually fall under the substantial similarity inquiry.¹²⁵ Courts are divided on how to approach sampling, particularly with regard to whether applying the de minimis doctrine is appropriate. On one end of the spectrum, the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films held that sound recording owners have exclusive rights to sample their own recordings, which led to the strong recommendation to “[g]et a license or do not sample.”¹²⁶ This indicated a bright-line rule that any unauthorized use of the recording constitutes infringement, dispensing of the substantial similarity requirement as it pertains to sound recordings.¹²⁷ This view has been sharply criticized by many courts on the other end of the spectrum. Rejecting the Bridgeport view, the Ninth Circuit in VMG Salsoul, LLC v. Ciccone held that the de minimis doctrine extends to sound recordings, thereby necessitating the usual substantial similarity inquiry.¹²⁸ As such, the assessment of sampling in AI-generated music will differ based upon whether the court applies a sampling friendly or unfriendly approach.

D. Copyright Infringement Actions

To establish an actionable copyright infringement claim, the owner must prove the following: (1) they own a valid copyright and (2) there has been copying of the original expression contained therein.¹²⁹

Ownership of a Valid Copyright

As to the first requirement, valid copyright exists when an original work falls within the protectable subject matter of copyright law and adheres to statutory formalities, including fixation, duration, and national origin.¹³⁰ Additionally, registration of the work with the Office is typically a prerequisite for an infringement claim and serves as prima facie evidence of both a valid copyright and ownership thereof.¹³¹ The second prong, ownership, is a legal conclusion based on relevant facts;¹³² ownership is particularly important in the music context given the separation of the composition and recording. Once this is established, one can draw a conclusion as to which exclusive rights the owner has, which then form the basis of an infringement claim.

Copying

Despite extensive similarity, there can be no infringement without copying. Actionable copying must relate to protectable elements of the original work.¹³³ This requirement is best understood as consisting of two elements: factual copying and legal copying.¹³⁴ Factual copying poses a purely factual question: did the defendant know of the protected work, have access to it, and use it in some way in the production of their work?¹³⁵ To establish that the defendant actually copied the original, direct or indirect evidence may be used.¹³⁶ Absent direct proof, copying can be established circumstantially if the plaintiff can show the defendant “had access to the copyrighted material,”¹³⁷ and similarities exist between the works that are “probative of copying.”¹³⁸

Legal copying is often referred to as “improper appropriation” or “substantial similarity.”¹³⁹ Copying does not require verbatim replication of the original work, rather it requires that copying result in the production of a substantially similar work.¹⁴⁰ Experts describe the question of when similarity rises to the level of “substantial” as one of the toughest questions in copyright law.¹⁴¹ Similarity exists on a spectrum, spanning from the most trivial similarities, which are not actionable, to absolute, literal similarity that renders a second work identical. One approach to similarity divides it into two types: “comprehensive nonliteral similarity” and “fragmented literal similarity.”¹⁴² Comprehensive nonliteral similarity speaks to similarity in the “fundamental essence or structure” of a work. Fragmented literal similarity refers to duplication of literal elements of an original, but only in a fragmented manner, such as the exact duplication of only three lines of text. Fragmented literal similarity is often described as a de minimis doctrine, as the question gets at whether a use is de minimis or not.¹⁴³

Regardless of the type of similarity involved, courts imposed one additional barrier for copying of protected elements to be actionable: the copying must not be de minimis.¹⁴⁴ In the context of copyright, “de minimis copying” can be understood as the opposite of substantial similarity.¹⁴⁵ While the idea of de minimis copying sounds simple, its application is not necessarily straightforward because it is highly fact dependent. A de minimis determination pertains both to the quantity and quality of the use, therefore a “simple word count” is not alone enough to determine infringement.¹⁴⁶ In the music context, whether uses are deemed de minimis can vary greatly; in one instance, a six-second segment of a four-and-a-half-minute song was deemed a de minimis use,¹⁴⁷ but in another, a three-second orchestra sequence was not.¹⁴⁸

Courts have developed a wide variety of approaches to determine when similarity rises to the level of substantial in these types of cases. The three test categories that are most commonly used in similar music-related cases are the extrinsic-intrinsic, ordinary observer, and fragmented literal similarity tests.¹⁴⁹ While they each take slightly different approaches to determining the presence of substantial similarity, they are all ultimately rooted in the foundational question of whether there is similarity in those elements to which copyright protection would extend.

Fair Use Defense

Section 107 carves out a limitation on exclusive rights, commonly known as the fair use defense. Four factors are considered in determining whether a use is a fair use:

(1) [T]he purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.¹⁵⁰

While the Copyright Act dictates that these four factors “shall” be considered, how they have actually factored in has developed over time through judicial interpretation. The seminal case that guides all applications of the fair use defense is Campbell v. Acuff-Rose Music, Inc., a 1994 Supreme Court case that addressed a musical parody.¹⁵¹ The Court cautioned against simplifying the analysis to bright-line rules, emphasizing that fair use determinations must be done on a case-by-case basis, weighing each factor together.¹⁵² While the general principles from Campbell remain, the Supreme Court recently addressed fair use again in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, in which the Court limited the fair use defense with regard to the first factor’s transformation inquiry.¹⁵³ This will likely have particular salience in infringement cases involving AI because AI is inherently transformative; however, this type of transformation may not hold as much weight under the new understanding of the first factor post-Goldsmith.

While fair use is regularly litigated in many copyright cases generally, musicians tend to avoid it.¹⁵⁴ This initially seems odd given that the seminal case for fair use, Campbell, involves music; but Campbell is really a parody case. Outside the context of parody,¹⁵⁵ Estate of Smith v. Cash Money Records, Inc., is the only federal case recognizing a songwriter’s fair use in copying another song.¹⁵⁶ While artist-defendants have pled fair use in their answers to infringement cases, they typically defend their work on other grounds.¹⁵⁷ A 2018 empirical study revealed that, up to that point, no defendant had successfully established a non-parody fair use of another work’s musical notes.¹⁵⁸ Therefore, how fair use will operate in this context will be somewhat speculative.

III. APPLICATION AND ANALYSIS

A. Sample Song A

Sample Song A is highly similar to “Heart on My Sleeve” by “Fake Drake.” While it sounds deceptively like Kanye West, both in the voice and in that it employs lyrics that intentionally evoke similar themes to his recent works, these similarities are highly unlikely to be cognizable under copyright law for several reasons. Rather than being copyright infringement, this Kanye-inspired song is almost certain to be considered what the courts have called a “soundalike.” But because songs like this have already been the source of contention regarding music and copyright, it is helpful to understand the basis for why this is unlikely to be a successful claim.

For the purposes of this application, it is assumed that there are valid copyrights for the songs from Yeezus that were used in creating Sample Song A, including “Black Skinhead.” It is also assumed that West owns the valid copyrights for both the sound recordings and underlying compositions.¹⁵⁹ Thus, the first requirement of a copyright infringement claim, ownership of a valid copyright, is presumed to be satisfied. This means that West is entitled to the exclusive rights outlined in the Copyright Act. Infringement of one of these rights must be the basis of his claim against User A, which presents just one of many road bumps in an attempted lawsuit based on this type of activity: copying as it relates to his voice or style can pertain only to the sound recording. As such, he is limited to claiming infringement on his right to reproduce, adapt, distribute, and perform the sound recording.¹⁶⁰

Factual Copying

Whether or not there is any possibility of an actionable claim will depend on the second requirement of copying, which is divided into two prongs: factual copying and legal copying. West’s claim would most likely have to rest on an infringement of a right associated with “Black Skinhead” specifically because satisfying the copying requirements for an entire album comprised of a variety of types of songs seems very unlikely. Turning first to factual copying, this prong asks the question of whether the defendant knew of, had access to, and in some way used the protected work in the production of their work. This requirement would seemingly be satisfied by the AI system’s owner, as the question could be answered by looking at the songs the system is trained on to produce work that sounds like West. However, it is likely more complicated when the infringer is merely the user who is not responsible for or involved with inputting data. While the prompt used by User A strongly suggests their desire and intent to use Yeezus and “Black Skinhead” in some way, it is not obvious whether this satisfies the factual copying requirement. This inquiry raises two key questions: can the use by Uberduck be imputed onto User A or can indirect evidence be used to sufficiently prove factual copying by User A themselves?

While it can arguably be assumed that Uberduck is trained on Yeezus and “Black Skinhead” given its option of West’s voice in the style of Yeezus, it cannot be verified for certain absent an admission from Uberduck’s programmer. However, this is not detrimental to a claim by West because factual copying can be proven using indirect evidence, which requires only demonstrating that defendant had access to the copyrighted work and that there are substantial similarities between the works that are “probative of copying.”¹⁶¹ While access cannot be demonstrated by showing a bare possibility that the defendant accessed it, a reasonable possibility of access can.¹⁶² Where these two key questions diverge is on how that possibility of access is demonstrated, whether it be access by the system imputed onto User A or access by User A themselves. Starting with the system, the offering of a Yeezus-style voice suggests a reasonable possibility of access to “Black Skinhead” for a few reasons. First, from a technological perspective, Uberduck utilizes DL, which alone requires significant amounts of data input for the system to learn; for a model to be able to replicate West’s voice from a specific album, it can be inferred that the whole album would have been used to provide as much learning material as possible to create the most authentic results. So-VITS-SVC, the specific DL model Uberduck uses to make songs that sound like West, involves a process of using relevant source audios of West to separate out his voice, which is then encoded to analyze and use the distinctive characteristics of his voice from those songs. Additionally, the HiFi-GAN model that Uberduck uses helps to train the generator to recognize authentic versus fake West samples until it can produce highly realistic-sounding speech.

Asserting that the voice can sound specifically like West in Yeezus, together with the technological understanding that this would require as much relevant training data as possible, it seems fair to conclude it is reasonably possible that the system had access to “Black Skinhead,” which is one of only ten songs on the album. Even considering the unlikely possibility that not all ten songs were used to create a Yeezus-inspired voice, it seems very reasonable to conclude that “Black Skinhead” would be used because it was the first single released from the album,¹⁶³ it has since been certified platinum in the United States three times, and West performed it repeatedly,¹⁶⁴ all of which arguably make it a hallmark of the Yeezus era.¹⁶⁵ It is difficult to imagine a Yeezus-style voice could be trained without the use of this song. Technology aside, access can also be shown through a theory of widespread dissemination,¹⁶⁶ and, for the reasons just stated, “Black Skinhead” was clearly widely disseminated. However, this theory of access is likely not applicable to the system itself outside the context of liability for input.

Having established a relatively strong claim of reasonably likely access, the next question turns on whether that access could be imputed onto User A. Courts have held that there was a reasonable possibility of access by the defendant in certain circumstances in which such access is inferred based on an “intermediary.”¹⁶⁷ One iteration of this theory of access is that access can be inferred if the intermediary or third party is connected to the copyright owner and the infringer.¹⁶⁸ Courts that have entertained this argument have varied on the relationship the intermediary must have with both parties, but a key characterization appears to be that it is a “close relationship,” which might be found when the intermediary contributes creative ideas to the infringer, supervises the infringer’s work, or has worked together in the same department as the infringer.¹⁶⁹ There are two wrinkles in trying to apply this argument here. First, most cases involve the intermediary being given the copyrighted work by the owner.¹⁷⁰ This is potentially less damaging because it still seems relevant whether the third party heard the song, as this also factors into the conclusions in addition to whether the intermediary was given a copy.¹⁷¹ Second, the relevant cases involving inferences based on intermediary access have involved a human intermediary.¹⁷² This may be particularly problematic for a plaintiff in a situation like West because it is hard to apply a framework of a close human relationship to the relationship between a computer program, a user, and input data. However, given the novelty of generative AI technology and the unique issues presented by generative AI music, there is a chance courts will not deem this fatal.

One reason to think courts may be flexible here is because of the expanded willingness to hold Internet intermediary sites vicariously or contributorily liable for failing to monitor infringing material available on or through the use of the Internet’s system.¹⁷³ While this speaks more to potential liability of the system as the sole infringer, it may still help convince a court to accept arguments based on non-traditional assistance in infringement, which is required here to first find the technology to have been an intermediary, and then impute liability onto a user. An indication that courts may be less likely to consider an AI system to be an intermediary turns on the assessment of AI in Thaler v. Perlmutter. As discussed, the court in Thaler emphasized the importance of human authorship for copyright protection.¹⁷⁴ The court rejected the plaintiff’s “work-for-hire” argument, which he used to suggest that he had hired the AI system to create the painting for him; the court rejected the argument for several reasons, but most importantly noted that such provisions of the Copyright Act clearly only contemplated the involvement of humans as employees and the contractual relationship outlined in the provision required a meeting of the minds that cannot occur with a non-human entity.¹⁷⁵ While again, this speaks to a different type of imputation onto technology, it nonetheless reflects a hesitancy to treat technology itself like a human. This provides good reason to question whether a court would find an AI system to be a sufficient intermediary to justify an inference of access.

Given that courts have at times expressed the need to be careful in imposing liability when infringement is not done directly,¹⁷⁶ it is worth considering the possibility that a court assessing generative AI may have trepidations about holding a user liable for infringement that may technically be executed through the complex algorithm of an AI system without any input from the user besides a brief prompt.¹⁷⁷ However, case law has consistently indicated that a finding of infringement is not dependent upon finding that the defendant intended to infringe.¹⁷⁸ As such, it seems unlikely that an individual could escape potential imputation of access by simply arguing they intended to use the system to create a new song, not to infringe on the copyright of another.

Assuming the inference of access could not be imputed onto User A by way of an intermediary theory, there remains the question of whether factual copying by User A can be proven through the same indirect evidence approach without any imputation or involvement of the AI system. As mentioned earlier, one avenue for demonstrating a reasonable probability of access is by pointing to widespread dissemination of the song, which certainly seems like an available option here.¹⁷⁹ This assertion is likely bolstered by the fact that User A clearly knew of Yeezus, as they selected the Yeezus style, and had to have been familiar with the album generally because of the themes in their prompt. These facts, in addition to the widespread dissemination of the song and selection of a rap beat and lyrical themes so similar to “Black Skinhead” form a strong basis for concluding there is a reasonable likelihood of access to the song by User A. The potential issue that could arise is that User A may argue that they were not involved in the creation aside from the prompt and the few general selections. They may try to argue that, even if they had heard the song, this would not matter because their awareness was not involved in the actual creation of the song or what it sounds like. Ultimately, this would likely come down to a determination of whether the selections and prompt constitute sufficient involvement in the creation, but it seems possible that it would be enough because User A did in fact direct Uberduck in a very pointed direction, even if they did so through simple or general means. Additionally, this is unlikely to be where West’s case completely crumbles, and User A has stronger, more important arguments in other areas.

Even if access is proven, the factual copying prong remains unsatisfied until West can demonstrate probative similarity. The probative similarity prong is likely much more straightforward in this case than the access prong. The idea behind probative similarity is that, combined with a reasonable probability of access, a level of similarity will give rise to a reasonable inference that the copyrighted work served as the source for the allegedly infringing work.¹⁸⁰ Determining the presence of probative similarity requires an examination of the two works as wholes to assess whether similarities are those which would not be expected to arise independently.¹⁸¹ An important difference between this inquiry and the legal inquiry of substantial similarity is that probative similarity is not limited to protectable elements, meaning the inquiry takes a holistic approach focused on drawing a historical conclusion as to whether the copyrighted work was the basis in some way for the second work.¹⁸² This could give West a small glimmer of hope because the songs may sound sufficiently similar when compared side-by-side, especially given that unprotectable elements of his style and voice can technically be considered. Because the song sounds like West and expresses themes common to “Black Skinhead” and Yeezus more generally, a jury looking holistically at the two songs may find the similarity to be probative of copying. The level of similarity required to satisfy this requirement is lower than that of substantial similarity, as West must show only that Sample Song A overall is similar to “Black Skinhead” in a way that would be unexpected had User A not had access to the original.¹⁸³ But this is an uncertain outcome because it ultimately comes down to the jury’s assessment of how the songs actually sound and is not dependent upon any legal criteria aside from the general rule of what probative similarity is. Although there is a chance West might prevail on factual copying by demonstrating access and probative similarity, it is likely short-lived because the legal copying inquiry remains.

Legal Copying

The end of the road for those like West who seek to vindicate their exclusive rights by legally challenging soundalikes almost certainly comes at the legal copying phase, if the claim even reaches that point. The substantial similarity prong of the copying requirement raises questions that a song like Sample Song A cannot satisfactorily answer. The chief problem here is that we are assuming the only real similarity is that it sounds like West’s voice or is sung in his distinctive style, neither of which are copyrightable elements of his work. The exclusion of voice and style from the scope of copyright protection was confirmed solidly in the well-known case Midler v. Ford Motor Co., in which Bette Midler lost on a claim of infringement based on a soundalike song that mimicked her voice almost exactly; the infringement claim relied solely on her voice, as the user had obtained rights to the song itself.¹⁸⁴ The Ninth Circuit stated bluntly that “voice[s] [are] not copyrightable,” as they are not fixed works of authorship as required by the Copyright Act.¹⁸⁵ While West may try to point to the similar themes, copyright extends only to expression and not ideas. Regardless of what test is used, when a work is substantially similar only in regard to separate, unprotectable elements, there can be no infringement. There are instances in which unprotectable elements together can form the basis of substantial similarity, but that would not be possible when two songs do not sound alike aside from the voice and general genre or theme. Absent some concrete similarity, such as instrumental interludes, phrases, or even lyrics, there can be no actionable substantial similarity. Section 114 of the Copyright Act likely blocks this type of claim, as it states that the reproduction and adaptation rights do not extend to independent fixations, even if the recording imitates a copyrighted recording.¹⁸⁶ Therefore, Sample Song A would not qualify as a derivative work because, as a mere imitation, it cannot infringe on the adaptation right.

While all signs point to dismissal, there are two potential unique considerations that may be worth discussing. First, there is the question of whether Sample Song A should be considered a reproduction and adaptation, even though it is not the exact same, because the exact song was used to train the outputs of the generative AI system. Technically, AI is trained to the point that it can create its own patterns, but ultimately those are still developed using the copyrighted work. In the case of Sample Song A and Uberduck, So-VITS-SVC isolates the artist’s voice, uses that voice to create and encode frequency bands that correspond to the distinctive characteristics of the voice in that audio, and then learns to make audio that uses those frequencies. There is potentially an argument that this is a literal reproduction of sounds in a way that should be separated from the intangible concept of a voice or style, and instead look at it like a remixed sample of audio of West’s voice.¹⁸⁷ Under this theory, not only could the use be an infringement of the reproduction and distribution right, but Sample Song A would also potentially qualify as a derivative work, as it is a new song based on parts of West’s recording in “Black Skinhead.”¹⁸⁸ If this were to be considered a sample, under the Bridgeport view, this would qualify as infringement without even delving into the substantial similarity inquiry.¹⁸⁹ However, this is far from the only approach to sampling. Likely, the question of substantial similarity will remain central to determining whether this use of sampling constitutes infringement. As already discussed, Sample Song A and “Black Skinhead” cannot be substantially similar because their chief “similarity,” West’s voice and style, is not a protectable element of the song, so it would not be able to serve as the sole basis for infringement under any of the judicial tests. The use of West’s vocal frequency bands would likely be deemed a de minimis use, which is a use in which “the average audience would not recognize the appropriation.”¹⁹⁰ It seems very unlikely that the average audience would recognize Sample Song A’s use of vocal frequency bands extracted from “Black Skinhead” and West’s other music, even though they might recognize that the voice generally sounds alike. This is certainly more complicated than an ordinary sampling inquiry because the use involves very small fragments used in very different ways; nonetheless, because the statutory language prohibits only that which is actually duplicated, the substantial similarity inquiry and de minimis interpretation would have to be based solely on those exact duplications of frequency bands. As such, if this is considered sampling, it would nonetheless likely be dismissed as a de minimis use.

However, even if the use is considered sampling, fair use will likely be an issue for West, whether or not the legal copying issue is addressed with a substantial similarity inquiry. If the sets of sounds from the source audio were actually sampled to make Sample Song A, they are fundamentally different because the frequencies inherently change when forming sounds that say different words. Therefore, if that could be considered an exact reproduction and adaptation of those sounds, it seems likely that a court would find that to be a fair use. While Goldsmith instructed the transformation inquiry to be reined in, this type of use is undeniably transformative in a way similar to the code transformed in Google LLC v. Oracle America, Inc.¹⁹¹ While the basis for the sound of West’s voice, the frequencies, were used, they were manipulated and restructured to such a significant degree, as evidenced by the creation of an entirely new set of lyrics rapped. This is comparable to the reverse engineering of object code in Sega Enterprises Ltd. v. Accolade, Inc., in which the Ninth Circuit found reverse engineering in order to transform code into something entirely new to be a fair use.¹⁹² In Sega, the court rejected the argument that a use in order to create competing products precludes a fair use finding, and emphasized the need to focus on several factors, including but not limited to commercial purposes; there, the use of copyrighted code was to understand the program’s mechanisms and then create something entirely new that would be compatible with the program, which outweighed its purpose of creating an ultimately commercial product.¹⁹³ Here, the decoding of songs into frequency bands could be understood as an attempt to understand why West’s voice sounds the way it does, and the subsequent use of such frequency bands to say new words and make an entirely new song is a transformative purpose sufficient to count toward a fair use. While User A likely hoped their song would achieve commercial success, that does not negate the transformative purpose behind their use of frequency bands from West’s music. Thus, the first fair use factor leans strongly in favor of the user.

As to the second factor, the nature of the work, West’s music is inherently creative, which tends to count against fair use.¹⁹⁴ However, this is often not the most significant factor, and courts have not refused to find a fair use in situations involving creative works.¹⁹⁵ The third factor, amount and substantiality used, counts very strongly in favor of fair use. Vocal frequency bands constitute a very small amount of everything that goes into a song. Considering that all other elements, including instrumentals and lyrics, are entirely different, the use of frequency bands is a minor taking from the original, although West may try to argue that whole songs, presumably including “Black Skinhead,” were encoded. In Sega, in which the entire program was encoded, the court noted that while that fact counts against fair use, the factor is of little weight when the actual use of that information is so limited.¹⁹⁶ Here, certainly not all of that which is encoded is used. What was encoded was a sufficient amount of frequency bands to analyze and understand vocal characteristics for future imitations;¹⁹⁷ while this may have involved a large number of frequency bands, that was what was required to serve the ultimately transformative purpose of creating a high-quality song that did not itself utilize all that was encoded for training purposes.¹⁹⁸ Because the third fair use factor asks about substantiality as well, there is an opening for West to try to argue that, even if frequency bands are one small part of a song, they are nonetheless substantial in relation to the whole work because they are responsible for creating his distinctive voice. This argument would face a few barriers, the first being that it is completely acceptable to make a song that simply sounds like someone else. Additionally, he may have a more compelling argument if those vocal frequencies were placed together and used to rap lyrics from one of his songs. But the frequency bands themselves, isolated from the other bands that together create his voice, are hardly the “heart” of his original work, especially with how they have been changed in Sample Song A.¹⁹⁹

The fourth fair use factor, the effect on the market, has received limited attention in the context of music. However, in Frisby v. Sony Music Entertainment, the court noted that two songs in the similar genres of rap and hip-hop were marketplace competitors.²⁰⁰ As competitors, one copying the other could reasonably be expected to diminish the value and sales of the original.²⁰¹ Here, Sample Song A and “Black Skinhead” are certainly in the same genre, so they may properly be considered competitors in the music market. Following the line of reasoning in Frisby, this means it can be assumed that Sample Song A would have a negative impact on the value of “Black Skinhead” and, further, would harm the market for derivatives because it was used without a license.²⁰² Because sampling is so prevalent in the rap and hip-hop genres, this is particularly relevant here; West may argue that finding this a fair use would set the precedent that following proper sampling procedures is unnecessary. However, the facts here separate this case from that of Frisby because the potential sampling that occurred could have easily gone unnoticed absent the knowledge that it was created using an AI system that had encoded these vocal frequencies. To suggest that this use of “Black Skinhead” would have such a chilling effect on licensing in the industry seems to be taking Frisby’s presumptions too far.

Taking all four factors together, it seems that the highly transformative purpose and minimal amount used may be enough to weigh in favor of finding this to be a fair use, especially in light of the highly speculative arguments about market harm given that this does not involve sampling in the traditional sense. However, because the fourth factor is “undoubtedly the single most important element of fair use,”²⁰³ it is possible that if a court adopts the view that sampling without a license has such an impact on the market for future derivatives, the fourth factor could be enough to compel the finding that this is not fair use. Of course, this would be a judicial determination, so it is not impossible that a court would accept these arguments, but it does not seem overly promising at this point. Given how courts have viewed voice and style thus far, it seems like a stretch to imagine the argument that vocals are really just compilations of protectable sounds would suddenly work because of the technology involved.

The second consideration is that some may believe Williams v. Gaye opened the opportunity to argue style infringement. While the dissenting opinion in Gaye criticized the majority’s conclusion as endorsing the idea of copyright protection for a musical style,²⁰⁴ the bases for infringement included elements like signature phrases, hooks, and structural similarities.²⁰⁵ These were similarities that, although alone may not have been protected, together led to substantial enough similarity that a jury concluded rights had been infringed. While these elements could be considered aspects of the plaintiff-artist’s style, they clearly went beyond sounding like a voice. Additionally, Gaye focused on the composition, whereas Sample Song A’s mimicking of West’s voice could only speak to infringement of the recording because the alleged similarities relate only to what the vocals sound like, which is not fixed on a page like the phrases in Gaye. Putting aside the differences between Sample Song A and the infringing song in Gaye, a key weakness in West’s style argument and whether Gaye made that argument an option is that this idea has not been embraced by other courts. While some courts have embraced a “total concept and feel” test for substantial similarity, both on its own and as part of an “intrinsic” test,²⁰⁶ that test requires at least a claim based on original arrangement of unprotected elements.²⁰⁷ Without some protectable element, whether it be lyrics or a drum beat,²⁰⁸ a similar “feeling” song will not pass a substantial similarity test.²⁰⁹ Here, even if a lay person has an initial reaction that the songs sound similar because the voice mimics West, that, again, is not copyrightable. Given that there are no elements of the instrumental track or lyrics to be the basis of this claim because these are original lyrics and a generic rap beat unlike “Black Skinhead,” the mimicking of his voice is the only thing West could point to and that cannot pass the test. Therefore, even if Gaye introduced a way to litigate style infringement, which is debatable given other courts’ avoidance of such a conclusion, it appears that there must be some sort of protectable expression in that style to base one’s claim on. While West’s voice may evoke a certain aesthetic style and certainly speaks to his creative expression, there is nothing in that expression that can be the source of a successful claim here.

None of this discussion is intended to denigrate the frustration on the part of West and similarly situated artists who understandably want to fight back against AI-generated songs that intentionally mimic their voices and do so in a way that misleads listeners. This certainly reflects Drake’s perspective in response to “Heart on My Sleeve,” which nearly duped the world.²¹⁰ However, these valid concerns do not bear a clear or logical connection to copyright law and its subject matter. Instead, these concerns likely find more coherence in the protections afforded by the laws relating to trademark, unfair competition, and state rights of publicity, which are tailored to protect against the unauthorized use of one’s identity.²¹¹ This is not to suggest that such claims are certain to be successful, or even actionable, but the aims of those laws, which includes protecting identity, are likely more amenable to the concerns of West and others.²¹²

B. Sample Song B

Unlike Sample Song A, Sample Song B presents questions of infringement that, on their face, seem more likely to be answerable with copyright law. While Sample Song B also seems to generally mimic Adele’s style in “Someone Like You,” it importantly incorporates more than that, particularly by way of a nearly identical melodic hook. As with Sample Song A, it is assumed that Adele owns a valid copyright in both the sound recording and the musical composition of “Someone Like You.”²¹³ Accordingly, Adele would have a potential claim for infringement upon her rights of reproduction, adaptation, distribution, and performance. With valid ownership established, the inquiry begins with the copying requirement as it pertains to the composition.

Factual Copying

The trajectory for proving factual copying is much clearer for Sample Song B. On MuseNet, User B specifically selected the introduction from “Someone Like You” by Adele, and that introduction, though slightly modified, is present from the starting note of Sample Song B. If admitted or witnessed, this would constitute direct evidence of factual copying. However, direct proof is often unavailable because “[p]lagiarists rarely work in the open.”²¹⁴ Nonetheless, it seems very likely that indirect evidence would satisfy this requirement. Regarding access, the theory of widespread dissemination would operate well here. When dealing with songs that have gained notable popularity, plaintiffs have tended to invoke a variety of data points to support theories of widespread dissemination including references to airplay frequency and locations, billboard charts, certifications, record sales, nominations and awards, and royalty revenues.²¹⁵ Here, Adele will be able to construct a very convincing claim of widespread dissemination because she can invoke all of these data points with regard to “Someone Like You”: the song has been streamed over two billion times on Spotify alone;²¹⁶ won several awards, including a Grammy;²¹⁷ was certified platinum five times in the United States;²¹⁸ and is the twenty-fifth-best-selling song of all time in the United Kingdom.²¹⁹ Occasionally, widespread dissemination arguments are accompanied by theories of subconscious copying, which speak to the fact that copyright infringement does not have a scienter requirement.²²⁰ User B did, in fact, see on MuseNet that the intro was “Someone Like You,” suggesting this was not subconscious copying. However, the leeway to argue that the use did not need to be with full knowledge of the circumstances may be help Adele’s case; at a minimum, if User B does not admit selecting the intro, they cannot invoke a willful blindness-type argument. Therefore, an attempt to rebut the argument of widespread dissemination is unlikely to be persuasive.

As discussed with Sample Song A, substantial probability of access usually needs to be accompanied by probative similarity to successfully prove factual copying with indirect evidence. However, there are instances in which the probative similarity is convincing enough that it alone can satisfy the copying requirement. This is often referred to as “striking similarity,” and it arises when the similarity is so extensive that it is “effectively impossible for one to have arisen independently of the other.”²²¹ In analyzing striking similarity in music, it has been held that degree of similarity cannot pertain only to the quantity of identical notes, but must also look to the uniqueness and intricateness of the similar aspects and the places in which the two are dissimilar.²²² Oftentimes, because of how high the bar is set for striking similarity, expert testimony is needed when the subject matter is as highly technical as music. Here, while the melodic hook created by the use of an arpeggio is very recognizable and may seem unique to “Someone Like You,” the use of arpeggios generally is common.²²³ While there seems to be a possibility that, with the help of an expert, Sample Song B could be found strikingly similar to “Someone Like You,” the high bar for such a determination, coupled with the infrequency of successful arguments for striking similarity, makes it reasonable to assume that the normal requirements of access and probative similarity will need to be met; this is not damaging for Adele’s claim, as those are almost certainly provable.

Assuming striking similarity is not found, the indirect evidence just needs to show probative similarity. Comparing the two works side-by-side, protected and unprotected elements alike, a factfinder could certainly conclude that “Someone Like You” was the basis, at least in part, for Sample Song B. This holistic comparison would likely highlight the nearly identical melodic hook, which consists of arpeggiated chords and underlies the distinctive harmony, along with the general similarities in terms of the theme and vocal range. While the use of an arpeggio is not itself uncommon and could occur absent copying, the distinctive chord progression, melody, and harmony created in Sample Song B is similar in all the ways that make the instrumental portion of “Someone Like You,” so memorable and impactful. While remaining careful about maintaining the distinction between probative and substantial similarity, there is likely enough similarity to be probative of copying; whether that similarity is substantial in a legal sense remains to be addressed.

Legal Copying

Substantial similarity is thought of as existing on a spectrum, thereby requiring close examination to attempt to identify the line between trivial similarities and actionable improper appropriation. Here, Adele’s infringement action would allege both comprehensive nonliteral and fragmented literal similarity. The most obvious claim is that of literal similarity with regard to the piano phrase, which functions as a melodic hook, because it is reproduced nearly identically in Sample Song B. A potentially important note is that an arpeggio would appear on the sheet music for a composition because it is notated to guide the playing of chord progressions.²²⁴ Further, the use of an arpeggio is key here because it melodizes the chords being used, which tends to then be an important aspect of the resulting harmony; thus, it is potentially very significant to the substantial similarity analysis because arpeggios may take harmony into the protectable range of copyright law.²²⁵ As for nonliteral similarity, this is a situation in which the nonliteral similarity may be characterized as comprehensive; both songs are played in common time, have a somber, emotional sound, and nearly identical lyrical themes, although they are different on a word-for-word basis. As noted, courts use different tests for determining substantial similarity. While these tests are similar in many ways and may yield similar results, the most thorough prediction of how a song like Sample Song B will fare against infringement allegations must consider the nuances of each. Expert testimony is almost always used to help guide complex questions of infringement in music, so any conclusions are subject to elaboration or criticism by a technical expert.

Before applying any of the tests, it is an appropriate moment to address the doctrine of de minimis copying. Because a determination that a use is de minimis negates the need for a full substantial similarity inquiry, courts often address this “defense”²²⁶ at the outset. De minimis copying essentially means there is a lack of substantial similarity, so the conclusion that a use is de minimis generally arises when “the average audience would not recognize the appropriation.”²²⁷ It is important to keep this concept separate from that of characterizing an element as de minimis itself, such as saying that one note is de minimis and not protectable. As the inverse of substantial similarity, the de minimis inquiry similarly must consider the quantitative and qualitative importance of a use because both get at what an ordinary listener would find substantial. Essentially, the inquiry here would follow the same steps as the fragmented literal similarity test, as that test is viewed as a de minimis doctrine.²²⁸ Because the details of those steps will be discussed in detail in applying the fragmented literal similarity test,²²⁹ they need not be laid out here, largely because it seems unlikely that a court would deem the copying here to be de minimis. The focus of this inquiry is on how much of the original was used or copied; the piano phrase is repeated throughout most of “Someone Like You,” so it seems highly likely an audience would recognize the appropriation. Given that the phrase constitutes a quantitatively large part of the original and arguably has significant qualitative importance because the piano is intentionally the only instrument to create a particular feeling, the phrase opens the song instrumentally, and it may be seen as the song’s backbone, a determination that this use is de minimis copying seems unlikely. Thus, it is appropriate to analyze potential outcomes under each of the substantial similarity tests.

i. Extrinsic-Intrinsic Test

The extrinsic-intrinsic test is a two-prong test. The extrinsic prong is the objective prong and requires identifying concrete elements of expression that are similar.²³⁰ Because this test is part of a substantial similarity inquiry, the dissection of elements involves identifying those that are and are not protected by copyright. Music often presents a more complicated case for analysis because, unlike books and films, it cannot easily be classified into a few protectable and unprotectable elements;²³¹ thus, courts applying the extrinsic prong have looked to a wide variety of elements, including title hooks, lyrics, melodies, chord progression, pitch, instrumentation, accents, and basslines.²³² The combination of these expressive elements can be protected by copyright and often form the basis of claims involving instrumental phrases.²³³ Therefore, it can be helpful to think of the first question as relating to separating protectable elements or compilations of elements, and the second question as analyzing those elements to determine whether they are objectively substantially similar. In Skidmore v. Led Zeppelin, the district court concluded on a summary judgment motion that there was sufficient extrinsic similarity for the issue to go to the jury; the basis for such similarity focused on a “repeated A-minor descending chromatic bass lines lasting [thirteen] seconds” that appeared within the first two minutes of both songs and was arguably the “most recognizable and important segments of the respective works.”²³⁴ Additionally, the “harmonic setting” of the sections used the same chords.²³⁵ The court concluded that even though a “descending chromatic four-chord progression” is common, the placement in the song, pitch, and recognizability make it appropriate for analysis under the extrinsic test.²³⁶ Ultimately, however, the jury concluded that, despite the combination of objective similarities, the songs were not extrinsically similar. The jury reached a different conclusion in Three Boys Music Corp. v. Bolton, in which the jury found substantial extrinsic similarity in the compilation of five unprotectable elements.²³⁷

Here, Adele could likely make an argument similar to that of the plaintiffs in both Skidmore and Three Boys Music, arguing that although arpeggiating chords to achieve certain melodic or harmonic goals is not uncommon, the very same chord progression starts both songs without lyrical accompaniment, is repeated several times in both songs at the same pitch, and is “arguably the most recognizable and important”²³⁸ part of each work; invoking the device that made the Three Boys Music plaintiffs successful, Adele would want to emphasize that it is the compilation of expressive elements that form the basis of actionable extrinsic similarity. While the knowledge that MuseNet took the actual intro from “Someone Like You,” and used generative AI to make “predictions” for the rest of the song according to prompts suggests objective similarity of these elements, expert testimony would still be helpful and needed to confirm which elements are really present in Sample Song B; for example, there may be subtle note differences that do not necessarily make the song sound different, but are objective differences, nonetheless.²³⁹ This conclusion is ultimately a question of fact requiring technical breakdown by an expert to evaluate the compilation of expressive elements, including those that are part of the melodic hook, for originality. Based on this analysis, a jury can make an informed determination as to whether these elements are sufficiently original to be protected, and if so, whether Sample Song B is substantially similar with regard to that protected expression. Assuming an expert can corroborate the objective similarity that appears to exist, there seems to be a strong case against User B as it pertains to the extrinsic prong. This is especially true in light of cases in which experts found extrinsic similarity in hooks and signature phrases,²⁴⁰ as well as those that emphasized compilations as sufficient for extrinsic similarity.²⁴¹ Within this framework, the copied melodical hook—consisting of the same or at least similar chord progressions, use of arpeggio, pitch, and harmony—coupled with the prominence and similar repetition in both songs, sets up a strong claim for extrinsic similarity.

Importantly in the context of AI-generated music, Adele may want to point to the fact that the song is “in her style” and that the voice sounds very similar to hers. As discussed with Sample Song A, however, courts have been very reluctant to recognize copyright in a style or someone’s voice. Especially in the case of Sample Song B—which is even closer to what has been identified as a soundalike in past cases, as Adele’s voice is not being used at all—it is at most an imitation of her voice type, and thus it seems unlikely that this part of the similarity between the songs could be actionable itself.²⁴² However, this similarity may work to Adele’s benefit under the intrinsic test.

If satisfied, the extrinsic test must be followed by an intrinsic test, which is the subjective prong that puts aside analytical dissection in favor of taking the approach of a reasonable listener. The intrinsic test asks whether ordinary listeners would find the “total concept and feel of the works to be substantially similar.”²⁴³ A jury may find substantial similarity from an overall view, even when individual similarities alone seem trivial.²⁴⁴ This may be important for Adele’s case because the similarity technically boils down to a few chords and how they are played. However, the impact of the arrangement resulted in an internationally recognized piano phrase, as well as a melody and harmony that have been highly successful in conveying a message. In both songs, the phrase starts at the first second, plays without lyrics initially, and repeats after the chorus. While there are some differences in instrumental content and lyrics, a jury could subjectively find that the repeated phrase is substantial. The ordinary listener would likely also find subjective similarity in the combination of those instrumental choices and thematically similar lyrics, suggesting that the songs genuinely evoke similar meanings. In a subjective analysis of the total concept and feel, the similar-sounding vocals may potentially factor in, particularly because both songs are sung by mezzo-sopranos. However, this is unlikely to be the most salient reason for finding intrinsic similarity because mezzo-soprano is the most common female singing voice, and the intrinsic test assumes an untrained ear who would likely attribute the similarity to the unremarkable fact that both vocalists sound feminine, rather than recognizing the specific vocal range.²⁴⁵ Nonetheless, it seems reasonable to conclude that the songs are substantially similar overall. But because the ordinary listener is supposed to truly reflect an ordinary person with no music expertise, it could also go the other way. While the hook phrase is distinctive and impactful, a jury could conclude that in Sample Song B, because of the variation in the accompaniment aside from the phrase, it is not as salient, therefore finding that the works holistically lack the requisite similarity. This ultimately speaks to the challenging nature of anticipating intrinsic analysis results, as the conclusions depend on unknown variables and subjective judgments. Courts consistently reiterate that they will not question the jury’s intrinsic conclusions, therefore there is less to rely on by way of case law because it is not judges who engage in this inquiry.²⁴⁶

The extrinsic-intrinsic test has been criticized for lack of clarity as to both prongs. As will also be discussed with aspects of the following tests, the “total concept and feel” approach seems to conflict with copyright law’s very specific intent to protect original expressions rather than ideas or commonplace expressions of ideas.²⁴⁷ Assuming this test remains in use, however, it may be the approach applied in the litigation of User B. Without knowing the quality of potential expert testimony, it is hard to predict with certainty the outcome. However, case law does suggest that the type of elements that were copied could, if framed as a compilation, satisfy the extrinsic test because there are clearly musical elements that are objectively the same. As for the intrinsic test, the subjective conclusions of the factfinder will ultimately determine the outcome; however, the prominence of the copied phrase, as well as the concept and feel of the emotional ballads, suggest that a jury could potentially find the songs to be substantially similar.

ii. Ordinary Observer Test

The ordinary observer test asks “whether defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff.”²⁴⁸ Here, because there are similarities between protectable and unprotectable elements, the test will probably be more discerning. In conducting the more discerning inquiry, courts are to try to extract the unprotectable elements and ask whether the remaining protectable elements are substantially similar.²⁴⁹ Protectable elements may either be completely original or original contributions by way of selection, coordination, or arrangement.²⁵⁰ For Adele, this would likely mean focusing on the original selection, coordination, and arrangement of the piano phrase itself and its function in the song through repetition. Once those elements are identified, the factfinder will look to the total concept and feel, focusing on whether the defendant misappropriated the original aspects of the copyright owner’s work. While the original formulation of the ordinary observer test in Arnstein v. Porter references the intended audience, that factor has not typically played a large role and is usually understood to mean the lay listener.²⁵¹ Because the emphasis is almost entirely on total concept and feel, whether MuseNet made minor, audibly imperceptible changes to the phrase may be less important than in the extrinsic inquiry of the extrinsic-intrinsic test.²⁵²

The analysis of Sample Song B under an ordinary observer test will likely resemble the analysis in New Old Music Group, Inc. v. Gottwald.²⁵³ In New Old Music, the infringement claim was based on a drum part consisting of a single measure, which was repeated throughout the allegedly infringing work, ultimately accounting for eighty-three percent of the original work.²⁵⁴ The defendant argued that the individual elements were not sufficiently original to be protected, but the court held that the totality of the drum part could suffice as copyrightable based on its original selection, coordination, and arrangement.²⁵⁵ A reasonable juror in New Old Music could have concluded that the use of the drum part, which could be seen as the original song’s “backbone,” took so much of “what is pleasing to the ears of lay listeners, . . . that [the] defendant wrongfully appropriated something” from the plaintiff.²⁵⁶ Here, the repeated piano phrase could be described as the backbone of “Someone Like You,” and be protected as a unique and original arrangement despite the unoriginality of any individual note. Analyzing the total concept and feel of both songs, a reasonable jury could likely conclude User B substantially misappropriated Adele’s original compilations and thereby infringed on her copyright.

Because this test relies on subjective judgments, the outcome could go the other way. A jury could conclude that the piano phrase and its arrangement were not original,²⁵⁷ or that it is a de minimis aspect of the work²⁵⁸ and therefore the similarity does not pertain to what lay listeners deem pleasing in “Someone Like You.” This was the case in Velez v. Sony Discos, in which the combination of eight-measure phrases was a structure widely used and therefore not original to the plaintiff’s song, and also constituted de minimis aspects of the original song.²⁵⁹ Sample Song B differs from the allegedly infringing song in Velez in that, aside from that structure of phrases, the song was not otherwise similar to the original in melody, harmony, or lyrics;²⁶⁰ Sample Song B, on the other hand, can be alleged to infringe on the arrangement of piano phrases, as well as the resulting melody and harmony that is affected by other expressive choices like arpeggiating the chords. Because of these similarities, it seems likely that a jury could find for Adele under the ordinary observer test, assuming expert testimony does not exclude the possibility of originality.

A key reason the ordinary observer test, discerning or traditional, comes under criticism is that it asks a factfinder to simultaneously separate protectable elements for careful examination and determine substantial similarity based solely on the total concept and feel.²⁶¹ Additionally, ordinary listeners’ impressions regarding whether copying has occurred do not necessarily prove that a violation of the Copyright Act has taken place. These shortcomings could affect Adele’s case against User B in two opposing ways. On one hand, the meticulous separation of protectable elements before conducting a net effect-type of analysis might lead the jury to conclude that what they are merely dealing with individual phrases. Focusing too closely on the individual phrases, as opposed to the whole arrangement, might cause this similarity to be overlooked in a total concept and feel inquiry. If, however, the jury recognizes the arrangement as the “backbone” of the song, this could lessen the issue. Further, in focusing on the total concept and feel, a jury might unintentionally be overinclusive when the vibe of the songs is as similar as “Someone Like You” and Sample Song B. If anything, this emphasizes the importance of expert testimony regarding the originality, or lack thereof, of the elements—whether on their own or as a compilation—to guide the jury before their total concept and feel analysis.

iii. Fragmented Literal Similarity Test

The last test is the fragmented literal similarity test, which has less applicable case law. This test focuses on “localized” similarity based on the idea that identifiable fragments of identical or nearly identical expression should be the basis for an infringement action.²⁶² As such, the substantial similarity question under this test turns on whether the copying involves trivial or substantial elements of the original work, which is determined by quantitative and qualitative assessments.²⁶³ Most cases specifically addressing fragmented literal similarity involve lyrics, so the qualitative significance of instrumental phrases is less explored. However, when considering the qualitative importance of instrumental phrases outside the context of fragmented literal similarity, it has been recognized that small sections can have great qualitative import, such as the four-note opening melody in Beethoven’s Fifth Symphony.²⁶⁴ Here, the specific piano phrase appears at the first second of “Someone Like You,” initially without lyrics for about fourteen seconds; the same phrase continues through nearly three and a half minutes of the song, although there are some additional notes played and volume changes.²⁶⁵ Quantitatively, this is clearly significant. In TufAmerica, Inc. v. Diamond, the court determined that a “distinctive orchestra sequence” from the original song that was about three seconds and consisted of “a series of five punchy ascending chords” was quantitatively significant given that it was repeated seventeen times to ultimately constitute about fifteen percent of the song.²⁶⁶ While a musical expert would need to confirm the actual length of time the phrase appears in original form in “Someone Like You,” it certainly seems to exceed that threshold. The qualitative importance also seems convincing given that the piano is the only instrument, the phrase opens the song instrumentally, making it very recognizable, and the phrase continues with only slight alterations, thereby functioning as a common thread through the whole work. Under this test, it seems highly likely Adele would prevail.

However, this test seems least likely to apply. First, it is not as commonly used as the other tests. Second, there is much more at issue than just fragmented literal similarity, especially considering that the desire to legally target Sample Song B likely has as much to do with the fact that User B used AI to create a song that intentionally sounds like Adele as it has to do with the use of the phrase; “local” and “global” similarity are expected concerns for artists whose works are pirated by AI. Third, the fact that the phrase is slightly sped up and may contain slight differences due to how it was generated suggests the other tests may be better suited for this case.

User B’s final opportunity to argue that their conduct falls within the bounds of the Copyright Act without constituting infringement is by asserting the fair use defense. Because the same analysis likely applies to User B’s use of the recording as well, the fair use discussion below addresses both components of the song together.

The Sound Recording

The analysis thus far has focused on the composition. Infringement of the sound recording of “Someone Like You” requires a literal duplication of the recording.²⁶⁷ Based on the language of the Copyright Act, whether the rights in the recording have been infringed depends entirely on how MuseNet creates music using introductions from existing songs:

(a) The exclusive rights of the owner of copyright in a sound recording are limited to the rights specified by [the] clauses [pertaining to the reproduction, adaptation, distribution, and the public performance by digital audio transmission rights] . . . . (b) The exclusive right of the owner of copyright in a sound recording under [the reproduction right] is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under [the adaptation right] is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.²⁶⁸

MuseNet trains on MIDI files, which capture data that can be seen as a “symbolic representation of music.”²⁶⁹ Essentially, a MIDI file records data about the notes in a song, including pitch, volume, and time nodes, which can then instruct the reproduction of musical compositions.²⁷⁰ Importantly, MIDI files are not audio recordings and cannot transmit audio.²⁷¹ This means that, unlike Uberduck, MuseNet technically never even “hears” the sound recording; it only trains on the computer language that indicates how the composition is played. Therefore, a MIDI file of “Someone Like You” could not possibly result in exact duplication of the protected recording being used in Sample Song B because the recording itself is not transmitted. This information alone suggests that User B cannot be liable for infringement of the sound recording of “Someone Like You,” and Adele would have to rely on allegations of infringement of the composition as discussed earlier.

While the literal language of the statute suggests that copying using a MIDI file is not an actionable infringement of the recording, a more in-depth inquiry as to whether this is so black-and-white is warranted considering that many AI music generators train on MIDI files. The starting point for this inquiry is legislative intent. The Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”) created an exclusive performance right for sound recordings, specifically granting the right to perform by “means of a digital audio transmission.”²⁷² In doing so, section 114 was also amended to add the relevant limitations on the performance right. The House Report accompanying the DPRA explicitly states that the right applies only to digital audio transmissions, which is consistent with the language of section 114 concerning reproduction and adaptation rights.²⁷³ Additionally, it specifies that a “digital phonorecord delivery” refers to the delivery of a recording by digital transmission.²⁷⁴ From this, it is clear that while the rights associated with sound recordings were expanded to adapt to technological developments, they were not explicitly extended beyond the transmission of the actual recording. However, the House Report does note that because the bill does not “precisely anticipate particular technological changes,” they intend that the rights, exemptions, and limitations created should be interpreted to “achieve their intended purposes.”²⁷⁵ This is at least suggestive of the understanding that the language may not be precise enough to cover all technologies and potential infringements. In 2018, Congress passed the Musical Works Modernization Act with the intent of updating copyright law to increase fairness for creators regarding statutory licensing.²⁷⁶ While this points to an ongoing concern about protecting artists in the advent of technological innovation, it does not change how digital transmission is defined. Legislative intent seems to indicate that Congress’s focus is to protect the actual sound recording. However, the concern about the future evolution of technology nonetheless remains relevant.

The Office has also provided some perspective on MIDI files and the sound recording requirement. As of 2021, the Office “does not consider standard [MIDI] files to be phonorecords and will not register a copyright claim in a sound recording contained in a standard [MIDI] file.”²⁷⁷ The Office elaborates that, because MIDI files do not capture sounds and only capture the underlying score, they are insufficiently fixed to be copyrighted as sound recordings, though they may suffice for musical works.²⁷⁸ While this does not directly address MIDI files in the context of infringement, this is clear evidence that the Office is aware of how MIDI files operate in the music context and continues to view them as fundamentally different from sound recordings. If the Office does not consider MIDI files to be fixations of the recording itself, it is a difficult argument to suggest it should constitute a sound recording for the purposes of infringement.

Case law does not seem to have addressed this issue directly. However, there is a wealth of judicial interpretation of section 114 and what is meant by the requirement that sound recordings be duplicated to qualify as infringement.²⁷⁹ This conclusion aligns with the language of the statute and its intended purpose. Therefore, even if Sample Song B sounds like it was sampled, current interpretations of the Copyright Act would instruct a court to conclude that Sample Song B did not infringe on Adele’s exclusive rights in the sound recording of “Someone Like You.” Undeniably this would be incredibly frustrating for an artist in Adele’s shoes; changing one fact—how the song was duplicated—could open the door to receiving royalties for sampling. This bears similarity to the frustration artists feel in cases involving songs like Sample Song A in which they justifiably feel that their hard work has been “appropriated,” yet that appropriation is simply not cognizable under current copyright law.

However, given that this case presents new issues that have not yet been addressed directly, it is possible that using the original in this specific way could be considered an exact duplication. Based on the DPRA and Congress’s intent to protect the ability to earn royalty revenues in the digital age, it may be a fair extension to consider the extraction and use of exact portions of a song using MIDI technology to be within what was meant by an actual duplication. There is no human involvement in using MIDI files to recreate the exact instrumentals; they are fed to the AI system to learn, train on, and reproduce with predictions. By possessing the MIDI file, the system autonomously makes an exact replica of the song. In fact, the point of MIDI files is to enable the creation of exact replicas, as it is a type of file that can direct notes and instruments to be played. While that seems to sound like a process akin to a person who uses their own instrument to recreate a song, which is acceptable under the Copyright Act, the lack of human involvement may persuade a court to conclude that this process falls outside the scope of what Congress intended to allow without obtaining a license.

If this is considered to be sampling, there are several potential rights for Adele to argue infringement upon; by its very nature, sampling may infringe on the reproduction and distribution rights, and courts have found that sampling infringes on the adaptation right by harming the market for future derivatives.²⁸⁰ In determining whether this sample infringed on those rights, courts would likely apply the same requirements for a successful infringement action. The only instance in which the fact of sampling alone would be sufficient is if a court strictly adheres to the holding and reasoning from Bridgeport. Because this would be considered an exact duplication, the factual copying prong would easily be satisfied. As to the legal prong, it seems that Sample Song B would likely be found to be substantially similar to “Someone Like You” for the same reasons as discussed regarding the musical composition. Further, the fair use inquiry would be important in determining whether User B is liable for infringing Adele’s copyright.

Absent such a change in interpretation or amendment of the Copyright Act, it seems unlikely that Adele would succeed on a claim of infringement on the sound recording. Given that AI systems often train on MIDI data, this is something that may be addressed in the Office’s future reports. While arguments about style pirating by generative AI systems seem unlikely to influence changes in copyright protections, arguments about near-duplication by MIDI files align more with adjusting copyright law to address technological changes. Ongoing concerns about royalties and protecting rights in ownership of a sound recording may demand attention to this MIDI “loophole.” Because this situation presents a good opportunity to reconsider what exactly is meant by exact duplications, it is worth considering how Adele’s infringement action would proceed if User B’s use of MIDI files does qualify as sampling. Since the required elements of an infringement cause of action are likely satisfied, the outcome for the recording probably depends on fair use, as that is User B’s last opportunity to attempt to show that their conduct is not prohibited by the Copyright Act.

Fair Use Defense

Regarding both the musical composition and the sound recording, User B will likely at least plead fair use in their answer to a suit alleging infringement by Adele. Nevertheless, like other music copyright cases, it is not guaranteed that this defense will be litigated. In asserting a fair use defense, User B will have the burden of justifying their use of the original phrase, including its intact melody, harmony, and rhythm. If successful, they will be relieved from liability because fair use is an affirmative defense.²⁸¹ Because there are only a handful of fair use music cases that involve non-parody uses, with a notable absence of case law addressing the use of instrumental sections, the following analysis largely relies on analogies to other applications of the defense.

The first factor is the “purpose and character” of the use.²⁸² The key question is one of transformation. Post-Goldsmith, this inquiry is more demanding and requires looking beyond whether the use adds something new. When the use is essentially the same as the original, as is the case here, a compelling justification is required.²⁸³ There is certainly an argument that the use here is transformative, simply based on the nature of MuseNet and the resulting composition. The intro to “Someone Like You” served as the basis for Song B, but then the AI system used predictive technology to construct much of the remaining composition, revisiting the original phrase only occasionally. In a literal sense, User B, via MuseNet, transformed the phrase by pairing it with new instrumental phrases. While this fits the definition of literal transformation, a more compelling argument would exist if the song retained less of the original in its essentially unchanged form. Since most uses incorporate some addition, the inquiry must also consider the extent to which the purpose differs.²⁸⁴ Sample Song B does not fit into any of the criteria from the preamble of § 107,²⁸⁵ but that does not preclude a sufficiently different purpose. In Estate of Smith, the court found that the use of lyrics to discuss music generally served a “sharply different” purpose than the lyric’s original purpose or goal of commenting on the “primacy of jazz music.”²⁸⁶ Whether this conclusion would be accepted under Goldsmith, which was decided later, is questionable because the Court held that transformation cannot be based on the “stated or perceived intent of the artist.”²⁸⁷

Regardless, while there are changes in the instrumental phrasing and added lyrics, the lyrics reflect very similar themes, and the music serves the same purpose of setting a somber tone. While more specifics about the lyrics and the message of Sample Song B are needed to confirm this conclusion, the available information suggests that the purpose of using the piano phrase is not even as different as that of the use in Estate of Smith, which also arguably lacked significant differences. Because of the exact portions of piano used, along with several other nonliteral similarities, it seems unlikely that User B could sufficiently demonstrate a compelling justification or a distinct purpose. The Goldsmith Court noted that Campbell cannot be read to say that any use that adds something new counts in favor of fair use because, if it did, a “commercial remix of Prince’s ‘Purple Rain’” would weigh in favor of fair use purely because it added some new expression to the song.²⁸⁸ Thus, Sample Song B is arguably just a remix of the instrumentals in “Someone Like You,” which fails to serve any significant unique purpose because it uses the phrasing to evoke the same theme and musical vibe. Therefore, it seems unlikely that a court would find the first factor to favor fair use here.

The second factor is “the nature of the copyrighted work.”²⁸⁹ This factor examines whether the work is creative or expressive.²⁹⁰ This factor weighs strongly against fair use because the copyrighted work is an original, creative musical work. Because this is somewhat uncharted territory, User B could argue that the creative nature of the original song is less relevant because what was used can be broken down into a chord progression, and there are only so many combinations of such progressions; User B may then argue that courts should look at these chords more like facts or nonfiction works. This argument is not particularly persuasive given that Sample Song B uses the same arrangement of the chord progressions, maintaining the original melody and harmony, which clearly speaks to the creative choices made in “Someone Like You.” Nonetheless, this factor is rarely significant in a final fair use determination.²⁹¹

The third factor pertains to the “amount and substantiality of the portion used in relation to the copyrighted work as a whole.”²⁹² User B will certainly argue that they used only what was required for the generative AI system to create predictions and compose a new song in accordance with those predictions. While User B is not required to use only the minimum amount needed for the system to function,²⁹³ the significant amount used, coupled with the lack of obvious transformation in the resulting song, will likely work against them. This factor is less likely to favor fair use when there is extensive copying or when the use encompasses “the most important parts of the original.”²⁹⁴ While in Oracle, the amount of code used was reasonable in proportion to the transformative use,²⁹⁵ the use of exact news segments in Fox News Network, LLC v. TVEyes, Inc. was extensive and included all of the important parts of the original news segments, thereby failing to qualify as fair use.²⁹⁶ User B’s use of the piano phrase likely falls between these two cases, as it does not use the entire composition, but still uses so much of what is important from it. As with the other two factors, this factor would likely count against fair use here.

The final factor, often deemed the most important, asks about the “effect of the use upon the potential market for or value of the copyrighted work.”²⁹⁷ This factor requires looking beyond the immediate situation to consider whether widespread conduct of this kind “[might] adversely affect the potential market for the copyrighted work.”²⁹⁸ As noted earlier, this factor’s application in the music context is unclear, as it has received little judicial attention. Since the use is unlikely to be deemed transformative, Song B is more likely to pose a risk of market substitution. However, this conclusion is based on an approach that is not typically applied to music cases like this one. User B will certainly argue that listening preferences are subjective and the use of the piano phrase to create a similarly emotional ballad may not clearly harm the market for the original the way the complete replication of news segments and distribution of clips would render paying for the original largely unnecessary.²⁹⁹ However, a California court, addressing an allegedly infringing song in Frisby, held that two songs within similar genres were competitors; as such, the court concluded that when a latter song copies important elements of the original, the value and sales of the original are expected to be diminished because “the copy supersedes the objects of the original creation thereby supplanting [it].”³⁰⁰ Sample Song B is clearly within the same genre as “Someone Like You,” so a court may deem them to be market competitors. Assuming these two songs qualify as market competitors, the subsequent question becomes whether Sample Song B copies an important element of “Someone Like You,” thereby supplanting the original. For the reasons discussed throughout this Note, the copied piano phrase is clearly a critical part of “Someone Like You,” as it is recognizable and serves as the instrumental accompaniment for most of the song. If a court agrees with this determination of importance, it will likely count against fair use.

The court in Frisby further explained the importance of considering the market for derivative works that may be affected by a later use; in that case, the court found that if the sample were considered fair use, it would “destroy the market for derivative works based on [the original song].”³⁰¹ While that conclusion was linked to the existence of a “flourishing market” for derivatives of the original song,³⁰² the premise that such a decision would result in future users not bothering to pay licensing fees would still apply here, even if there is no such flourishing market for “Someone Like You.” Fair use cases pertaining to all types of work often consider the potential chilling effects on the market. Finding Sample Song B’s use to be fair use could certainly undermine the efficacy and profitability of an established system of licensing.³⁰³ By referencing sound recordings, the DPRA reflects congressional concern about the livelihoods of artists and individuals who rely on licensing revenue. Allowing this substantial amount of copying to be fair use would likely lead many future users to forgo obtaining a license. Further, the court in Sony Music Entertainment v. Vital Pharmaceuticals, Inc. held that when a user “completely ignore[d] the market for music licensing,” the burden shifts to the user to demonstrate that their use is not likely to harm the market for the original.³⁰⁴ Therefore, because User B did not obtain a license to use any part of “Someone Like You,” they would be responsible for producing evidence that Sample Song B did not negatively affect the market for the original. Adele’s unrealized royalties in this case would be limited to licensing revenues for “traditional, reasonable, or likely to be developed markets.”³⁰⁵ However, based on statutory requirements and industry practices, music licensing qualifies as a developed market. Therefore, this limitation is unlikely to have a significant impact in the music context.

Even if the use of MIDI files renders the use a mere imitation rather than a duplication infringing upon Adele’s rights in the recording, the result may be the same for this fourth factor, as a finding of fair use would necessarily imply that the MIDI loophole provides an acceptable way to avert infringement. This is problematic for the sampling and licensing market because those who would normally obtain a license to sample “Someone Like You” and other songs may instead copy the songs via MIDI technology. While such an approach would be unwise, considering that it does not remove potential liability for infringement of the musical composition, it would nonetheless provide a way to avoid paying licensing fees, which some AI users would likely exploit. Therefore, the chilling effect is likely to occur regardless of whether the use is characterized as sampling or a literal duplication. Further, the piano phrase is an important part of “Someone Like You,” both in the actual recording and in the composition, which is copied exactly. Therefore, Sample Song B may supplant the composition and thereby harm the sales and value of “Someone Like You.”

While predictions about fair use are necessarily speculative given the unique factors here, the application of analogous precedent suggests that, at a minimum, User B does not have a very compelling fair use defense. Future application of fair use in music by courts will be instructive, as will opinions addressing generative AI more specifically. A particularly important question to be answered will be how generative AI works that use predictive models will hold up against a transformation inquiry, as that factor typically seeps into the other three as well. Until courts provide such insight on how fair use and infringement apply to generative AI songs, Adele seems to have a decent case for infringement of the composition, so long as the subjective assessment leans in her favor. Infringement of the rights in the sound recording copyright, however, seems to present a less promising case under current interpretations of the Copyright Act.

IV. POLICY IMPLICATIONS

The analyses of Sample Songs A and B clearly suggest that current copyright law does not provide obvious answers to several questions that arise in the context of generative AI music and, more generally, AI technology. While certain provisions of the Copyright Act are intentionally broad to allow for changes, and amendments have addressed specific deficiencies identified by Congress, a fundamental deficiency arises from the fact that they did not design the Act with this advanced of technology in mind. For example, the limitation of rights in a sound recording to exact duplications was not promulgated with the expectation that machine learning algorithms would eventually train on data and duplicate it exactly through what technically qualifies as an independent fixation under the statute. Whether these deficiencies are addressed through amendments, judicial decisions, or administrative policies, a determination stands to be made as to whether specific new rules or exceptions are needed, or if the broad language of the Act should remain, with adjusted, AI-specific or AI-sensitive interpretations.³⁰⁶

Specific rules aside, the contentious situations created by generative AI music highlights the continuing struggle to balance protection for creators with the benefits of rapidly advancing technology. As the Court noted in Twentieth Century Music Corporation v. Aiken, the Copyright Act and its provisions are intended to reflect “a balance of competing claims upon the public interest.”³⁰⁷ On one side of the spectrum, it is important to recognize the societal value of music and properly appreciate the talent it takes to release authentic, moving pieces of work.³⁰⁸ If we want musically talented individuals to continue to pursue these creative aims and provide us with entertainment, their creative expression must continue to enjoy protection. This is a particularly salient concern given the sensitivity of the creation involved, as one artist is a vulnerable human, baring their soul, and the other “artist” is an inherently non-creative and non-vulnerable trained machine.

On the other end of the spectrum is the necessary recognition of the importance of encouraging technological advancement and pursuing a more efficient society. If the use of generative AI is aggressively cabined by the risk of copyright infringement litigation, the world may miss out on valuable works. While the protection of artists is undeniably important, it cannot be forgotten that protections are limited because the ultimate goal is to promote creativity for the public good.³⁰⁹ Further, this could have a chilling effect beyond the music industry, impacting industries in which the use and advancement of this technology could change the world or save lives. Even within the music industry, if we limit the usage of AI by non-owners, how might that precedent impact the use of AI by owners themselves? Currently, similar technology is used in recording studios to make original songs and, particularly, to improve songs before they are released.³¹⁰ Artists would agree that this use is not the aim of cracking down on copyright infringement, but it would potentially be difficult to keep these uses separate and may result in frivolous and undesired suits between disgruntled artists and producers. Further, we need to determine the weight that the creative input of the user has on what uses are more permissible because not all AI systems dominate the creation without meaningful human input. Determining how and where to draw this line is far from simple and will necessarily depend on an increased understanding of the technology, assessment of policy priorities, and, to some degree, value judgments regarding what aims our society deems most important.

CONCLUSION

Generative AI music presents a whole host of new questions, considerations, and potential implications for how copyright holders vindicate their ownership. While the application of current copyright law and precedents to these situations involving AI-generated music does not provide fully satisfying answers as to what will happen when songs like these land on court dockets, it does direct attention to the chief policy concerns and areas in which artists are vulnerable. With regard to “Fake Drake,” the analysis of Sample Song A suggests that an infringement suit based on AI-generated soundalikes is unlikely to be successful. While a better understanding of the technology involved in AI-generated music may lead to stronger sampling claims, addressing “Fake Drake” is likely a matter better suited for trademark law and the right of publicity. Sample Song B presents slightly brighter prospects for artists to litigate AI-generated songs they believe infringe on their existing, copyrighted work. But these results are somewhat tentative, pending a better understanding of the technology and, ideally, insight from the Office.

What can be said for certain is that our understanding and expectation of how these cases will unfold are crucially informed by our understanding of the generative technology that ultimately creates the works. From the amount of user input to training data, there are many more considerations for actionable infringement than in a case of one person consciously copying the lyrics of a song by copying and pasting them onto new sheet music. As more is understood about how this technology actually uses existing songs to create new ones, the more we can apply the principles of copyright law and identify the gray areas that need clarification. To call these situations and concerns complicated would be a vast understatement. But if copyright law is to achieve its aims of “promot[ing] the Progress of Science and useful Arts,”³¹¹ while also continuing to provide adequate protection for “original works of authorship,”³¹² even in the face of alluring technological developments, work must be done to decipher between these considerations and identify those that are legally cognizable. While Drake likely cannot

vindicate his copyright ownership rights by taking Fake Drake to court, future artists similarly affected might face a different trajectory thanks to “Heart on My Sleeve,” and how it turned the country’s attention to the question of how copyright law interacts with generative AI music.

98 S. Cal. L. Rev. 663

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Melissa Schneider*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2022, University of Arizona, W.A. Franke Honors College. Thank you to Professor Barnett for his support and guidance, and to the members of the Southern California Law Review for their thoughtful suggestions.

Stringing Along the Songwriter: Successes and Shortcomings of Copyright Policy in Title I of the Music Modernization Act

March 2025March 2025Tara Steinmetz*

Congress’s enactment of the Music Modernization Act (“MMA”) in 2018 introduced the most substantial revision to copyright law in two decades and represented a landmark moment for the music industry. Over the prior decade, the rise of music streaming had taken the music business to the brink of disaster, as many of artists’ most foundational rights within music copyright law proved fundamentally incongruent with a digital future. Amongst the worst hit were songwriters and composers whose royalties had so drastically declined that many throughout the industry felt it was just a matter of time before the profession ceased to exist.

The MMA—particularly its Title I—sought to revive the industry, and five years on from its passage, music industry leaders and lawmakers on Capitol Hill reopened a conversation around the law’s successes and shortcomings given the new era of technological innovation around the corner. Through the lens of music copyright law’s three policy goals—access, incentive, and reduction of transaction costs—this Note closely examines Title I’s implementation to date. It provides a new analysis of the law’s key provisions, including the accomplishments of the Mechanical Licensing Collective and the adoption of a new willing-buyer willing-seller royalty rate setting standard in the most recent Copyright Royalty Board rate proceeding. This Note ultimately argues that Title I of the MMA successfully responded to the most immediate challenges in music copyright law, effectively eliminating untenable transaction costs that left an antiquated licensing system nearly nonfunctional. However, it has achieved relatively marginal results for one of its central aspirations and one of the industry’s most looming concerns: the hollowing out of the songwriting profession, as artists can no longer afford to create for such little return. The plight of the songwriter thus remains one of the music industry’s most fundamental yet unanswered problems in the digital age.

INTRODUCTION

In June 2023, the Recording Industry Association of America, the nation’s leading trade organization for the recording industry, announced that Avicii’s 2013 hit song “Wake Me Up” had become the highest-selling dance track in the organization’s seventy-year history.¹ Just two months later, that August, the chart-topping track joined the ranks of just over forty songs ever to have reached two billion streams on Spotify.² When it was first released over ten years ago, the song quickly rose to become Spotify’s then-most streamed song of all time and Pandora’s thirteenth most streamed song of all time.³ However, in November 2014, Aloe Blacc, the now-famous artist who wrote and sang the song’s ubiquitous chorus, publicly revealed that the song had made only $12,259 in royalties off of 168 million streams on Pandora’s digital streaming platform.⁴ From there, the sum was split amongst the song’s publishers, Aloe Blacc, and his two other co-writers, leaving Blacc with less than $4,000 made off of the United States’ largest music streaming platform at the time.⁵

While Blacc once could have received consistent royalty payments from physical album and digital download sales, an antiquated copyright system controlling songwriters’ work left him and other songwriters defenseless in the new music streaming era. Blacc lamented that the digital age presented a disappointing irony that while more people than ever enjoyed widespread access to music and benefited from songwriters’ creative labor, songwriters were being paid out by streaming services at “abhorrently low rates” and struggling to make ends meet.⁶ Despite incredible demand for their craft, he said that songwriters like him had “no power” to protect the music they created, signaling to songwriters that their work was not valued.⁷

Blacc’s story was a dime a dozen in the 2010s as music streaming services rapidly became the primary mode of music consumption. Kevin Kadish, who wrote Meghan Trainor’s 2014 breakout hit “All About the Base,” told the House Judiciary Committee in a 2015 roundtable that he had made just $5,679 off of 178 million streams of the song,⁸ despite the fact that it had spent eight consecutive weeks at number one on the Billboard Hot 100—the longest of any female artist that year⁹—and was the bestselling song of the decade by any female artist.¹⁰ Kadish was just one of over a hundred testimonies at that roundtable relaying the plight of songwriters in the digital age.¹¹

While digital streaming rapidly transformed the music industry, the legal framework for music copyright fell drastically behind. Ad hoc solutions to monopoly and antitrust concerns from eras of long-dead technologies were cemented into the legal regime, saddling musical composition copyrights with an incoherent patchwork of restrictive copyright laws. Songwriters’ and composers’ most foundational rights thus reflected early twentieth-century problem-solving that was fundamentally incongruent with a digital future.

The shortcomings of the old music copyright landscape became evident throughout the 2010s’ massive decline of songwriter remuneration. Songwriters like Blacc and Kadish penned some of the most recognizable songs of the past decade and wrote hits for some of the country’s greatest pop stars. Yet still, Kadish asked members of Congress how he was to feed his family, making just $5,600 off about “as big a song as a songwriter can have in their career.”¹² Meanwhile, the majority of songwriters, accustomed to a generally middle-class life in their profession before the streaming era,¹³ would never write a song with anywhere near this level of success; for them, the situation was even more distressing.

Concurrently, music publishing companies, which often own and manage songwriters’ copyrights in whole or in part, encountered financial challenges mirroring those of the songwriters they represented. Even digital streaming providers felt the constraints of working within an outdated legal system, which made it nearly impossible to properly license songwriters’ works as required by their business model. Then-fledgling music streaming providers faced a barrage of infringement lawsuits, jeopardizing their ability to grow despite widespread public popularity.

In 2018, Congress enacted the Orrin G. Hatch–Bob Goodlatte Music Modernization Act (“Music Modernization Act” or “MMA”), a major step towards aligning the music industry with modern digital technology.¹⁴ The MMA emerged from a comprehensive negotiation amongst numerous industry players—from publishers and songwriters to record labels and recording artists to fast-growing digital music streaming services. It represented unprecedented consensus across the music industry.

The MMA amended Title 17 of the U.S. Code, also known as the Copyright Act, which, despite two decades of major technological innovation, had not seen any major revision since 1998.¹⁵ Its three titles each aimed to tackle distinct issues in the music copyright landscape. Title I, known more specifically as the Musical Works Modernization Act (“MWMA”), addressed songwriter and publisher concerns emerging from the digital age and is the focus of this Note. Specifically, it redefined the administration of the compulsory mechanical license in response to the incompatibility of interactive streaming services with the old music copyright regime.¹⁶ The remaining two Titles of the MMA addressed copyright concerns for recording artists: Title II, the Classics Protection and Access Act, fixed a gap in prior copyright law by bringing pre-1972 sound recordings under copyright protection, and Title III, the Allocation for Music Producers Act, enables music producers, mixers, and sound engineers to receive royalties on sound recordings.¹⁷

2023 marked the fifth anniversary of the Music Modernization Act, rekindling conversations around its successes and shortcomings, particularly concerning Title I. This Note will discuss the ways in which the development of Title I of the MMA embodies a classic copyright struggle between incentive, access, and transaction costs, arguing that while it aimed to better address deep transaction cost and incentive gap concerns arising from the streaming industry—and succeeds in doing so where an urgent solution was required—there remain important unresolved tensions in music copyright law for songwriters. The songwriters upon which the music industry is built still insist that their profession is dying, and early indicators suggest that the MMA did not go far enough to fully correct failures of traditional copyright policy goals. Ultimately, Title I of the MMA recalibrated messy transaction costs that became glaringly apparent in the pre-MMA regime, but policymakers have yet to strike the right balance between incentive and access that underlies copyright policy.

I. THE MUSIC COPYRIGHT LANDSCAPE

A. Mechanics of Music Copyright

1. Copyright Basics

Each song you listen to on the radio or stream on Spotify contains two separate copyrights: a copyright to the song’s sound recording, known as a master recording or a “master,” and a copyright to the underlying musical composition embodied in the sound recording.¹⁸ Thus, the performance and distribution of a song’s recordings trigger royalties payable to both the holder of the composition copyright and the sound recording copyright.¹⁹ Sound recording copyrights are held by record labels and artists, while copyrights to musical compositions are held by music publishers, songwriters, and composers.²⁰ For example, as depicted in Figure 1, SZA’s 2022 song “Kill Bill” is copyrighted as a master sound recording and as a musical composition.²¹ Use of the sound recording would require royalties to be paid to SZA’s record label, Top Dawg RCA, and SZA as the recording artist. Conversely, the song’s underlying musical composition and lyrics also have a copyright; royalties for its use would be distributed amongst the three rights-holding music publishers and three credited songwriters. While these two types of copyrights, in theory, are granted the same exclusive rights, the licensing regimes arising out of these two copyrights have diverged over time, altering how these two categories of rights holders benefit from their exclusive rights. This Note will focus on the copyright licensing regime for music compositions owned by publishers and songwriters, as Title I of the Music Modernization Act introduced a drastic alteration in this licensing landscape.

Figure 1. Two Copyrights, One Song

Sources: Adapted from Sarah Jeong, A $1.6 Billion Spotify Lawsuit Is Based on a Law Made for Player Pianos, The Verge (Mar. 14, 2018, 9:28 AM), https://www.theverge.com/2018/3/14/17117160/spotify-mechanical-license-copyright-wixen-explainer [https://perma.cc/2QHB-DTPY]. Copyright ownership data is from The MLC Public Work Search, The MLC, https://portal.themlc.com/search#work [https://perma.cc/T6LA-4Z6X] (searched under “Work Title” for the song “Kill Bill,” added writer name criteria, and searched for Rob Bisel).

Under § 106 of the Copyright Act, copyright holders gain six primary exclusive rights as a result of their copyright including (1) the right to reproduce the copyrighted work; (2) the right to prepare derivative works based upon the work; (3) the right to distribute copies of the work; (4) the right to perform the work publicly; and (5) the right to display the work publicly, a right tending to be less prevalent in music copyright beyond displaying lyrics publicly or online.²² Copyright holders thus can license these defined rights to any willing buyer.

The licensing of a musical composition can be broken down into two primary buckets. The right to perform a composition publicly, or a “public performance right,” generates what are known as performance royalties any time someone plays a composition copyright holder’s song publicly.²³ This right, therefore, is most likely to come into play when a song is played on the radio or performed live (and now, when streamed on demand).²⁴ These royalties, which will be of limited discussion in this Note, are administered through collective licensing organizations called performing rights organizations, or “PROs.” PROs are private, non-governmental entities that work on behalf of songwriters and publishers to license performance rights through “blanket licensing”—a licensing model that allows a licensee to use any works in a PRO’s catalog pursuant to the terms of a “blanket” agreement.²⁵ The second license, called a mechanical license, encompasses the right to “reproduce musical works in formats used for mechanical playback.”²⁶ Money paid to use these licenses is known as a mechanical royalty.²⁷ Typically, songwriters and composers “sell or license their composition copyrights to publishing companies, which will administer the copyright in return for 25–50% of the proceeds.”²⁸ In such arrangements, licensees pay royalties to the publishers, who take their cut and distribute the remaining funds to the songwriters they represent.²⁹ As seen in the Figure 1 example, SZA’s “Kill Bill” is co-owned by three publishing companies, each of which receives royalties based on an agreed-upon percentage share of ownership in the song. Subsequently, these publishers distribute royalties to the songwriters they represent after taking their cut from the royalty pool.³⁰

Figure 2. Basic Framework of Copyright Royalties Within a Song

Source: Adapted from Ben Lowe, What Are Music Royalties? The Difference Between Recording and Composition Royalties, Songtrust (Feb. 16, 2023), https://blog.songtrust.com/what-are-music-royalties [https://perma.cc/3E6F-UMA8].

2. Understanding the Compulsory Mechanical License

To understand the mechanical license’s original purpose, it is helpful to briefly look at its origin. In 1908, the Supreme Court decision in White-Smith Music Publishing Co. v. Apollo Co. held that piano rolls—scrolls of perforated paper used in player piano devices to mechanically operate piano keys—did not infringe upon a composition’s copyright because they did not constitute “copies within the meaning of the copyright act.”³¹ Thus, under White-Smith, only traditional copies of sheet music were deemed entitled to protection, and songwriters and composers (or the publishers that represented them) were powerless when others reproduced their music mechanically. While the Court hesitated to expand its understanding of composition copyright protection, Congress responded by establishing the mechanical license in the 1909 Copyright Act, mitigating songwriters’ and composers’ drastic loss of control over their musical compositions.³² Today, “mechanical” music production is largely gone, making the mechanical license’s name and history a cause for confusion when contemplating how such a license might map onto modern technology. Regardless, the mechanical license still refers to the distribution of a piece of music—including on vinyl, CDs, digital downloads, and distribution via streaming services.

While the establishment of a mechanical right brought great relief to music composition copyright holders at the time, it came with one catch—a compulsory licensing requirement.³³ This compulsory license, created under § 115 of the Copyright Act, was the first of its kind in copyright law.³⁴ It converts the copyright holder’s right to license into an obligation to license, allowing interested licensees to use a copyright holder’s composition without permission, provided that they pay a set mechanical royalty fee and comply with a specified list of statutory requirements.³⁵ Thus, if you wish to cover SZA’s song “Kill Bill,” you do not need to ask the “Kill Bill” songwriters or their publishers for permission, though you are obligated to pay a royalty fee and adhere to statutory requirements. Similarly, when interactive music streamers like Spotify³⁶ seek a license to stream “Kill Bill” on their platforms, these companies are not required to ask the songwriters or publishers for permission—they, too, are responsible only for the statutory fee and requirements.³⁷

Beyond imposing a compulsory license regime, the Copyright Act set royalty payments at a frozen statutory rate, which was well below market value at a mere two cents per use.³⁸ This fixed rate’s inability to adjust, even in the face of inflation over the next seventy years, led to its significant criticism as an injustice to composition copyright holders.³⁹ Eventually, the 1976 Copyright Act created a statutory rate-setting entity, the Copyright Royalty Tribunal (“CRT”), to adjust rates at five-year intervals.⁴⁰ The tribunal was the predecessor to the current rate-setting entity, the Copyright Royalty Board (“CRB”), established by Congress in 2004.⁴¹

Before the MMA’s enactment, the CRB (and previously, the CRT) was guided by four copyright policy goals defined in 17 U.S.C. § 801(b) to determine adjusted compulsory license royalty rates.⁴² These “801(b) [policy] factors,” as they came to be known, were intended to “identify the royalty amount that would reward copyright owners and disseminators commensurate to their ‘relative roles’ in providing the public with access to creative works,”⁴³ reflecting the standard utilitarian theory of copyright discussed later in this Note.⁴⁴

Despite the establishment of policy factors claiming to prioritize “fair return” to creators in consideration of “fair income under existing economic conditions,”⁴⁵ the policy-driven statutory rates nonetheless continued to depress mechanical licensing rates by “plac[ing] artificial limits on the free marketplace.”⁴⁶ Notably, one of the MMA’s main goals was to address grievances with the rate-setting process.

B. Complicating the Picture: The Rise of Streaming

For decades, lawmakers dealt with new technologies and the copyright questions they posed by bolstering a “patchwork of laws, industry conventions and private deals.”⁴⁷ Over time, the music copyright landscape has become increasingly fragmented and complex, contorting to fit each new iteration of technology.⁴⁸ This confusing legal scheme ultimately came to a head as digital streaming providers, or “DSPs,” began to dominate the music industry.⁴⁹

Imposing mechanical royalty obligations upon discrete products such as CDs or digital downloads ultimately proved relatively straightforward, despite initial backroom quarrels about which exclusive rights were implicated by these technologies.⁵⁰ For each record manufactured and distributed or each digital copy downloaded, publishers are paid a set mechanical royalty rate—currently set at twelve cents per copy.⁵¹ Because these are privately owned copies of music, each play is not a public performance, and thus, no performance royalty payment is required.

Ironing out royalty calculations for DSPs was much more complicated. When a listener streams a song aloud, is that a public performance, much like terrestrial radio? Or is it a mechanical reproduction and distribution of a song, like a digital download? Here, the traditional line between a performance and a mechanical distribution is not so clear.⁵² To help with this dilemma, DSPs are categorized into two modes of digital music delivery—noninteractive and interactive.⁵³ Noninteractive streaming services, such as Pandora’s traditional genre-based, radio-like streaming platform, “substantially limit user control” of the music they consume, as the platform makes most of the user’s listening choices.⁵⁴ Since this type of streaming was similar to radio, it was eventually determined that songwriters would only get performance royalties for noninteractive streams, mirroring what a songwriter would receive if the radio played their song on air.⁵⁵ In contrast, interactive streaming platforms, such as Spotify, Apple Music, and Amazon Music, allow listeners to stream songs on-demand (“interactively”) by selecting and immediately transmitting the music they wish to listen to.⁵⁶ These platforms fit neither a radio model nor a CD or download model, and existing law failed to provide guidance for resolving this tension. Thus, as interactive DSPs burst into the industry in the late 2000s, legal disputes broke out between publishers and DSPs to decide whether, upon deep analysis of streaming technology, such streams implicated either performance or mechanical rights.⁵⁷

Figure 3. U.S. Recorded Music Revenues by Format

Source: U.S. Music Revenue Database, Recording Indus. Ass’n of Am., https://www.riaa.com/U-S-SALES-DATABASE [https://perma.cc/2X4U-6EG4] (toggled date range from 1998 onwards and opted to adjust for inflation). It should also be noted that Figure 3 displays the source of all revenue in the industry—not just songwriter royalties—to indicate general trends in music consumption. Such revenue streams would be split among composition and sound recording copyright holders, depending on applicable copyrights and contractual agreements.

Publishing companies and songwriters vigorously fought for interactive streaming to encompass both performance and mechanical royalties.⁵⁸ Both royalties were two critical “pillars” of income that the industry had relied on for over a century,⁵⁹ and the industry worried—with good foresight⁶⁰—that music streaming would eat away at these traditional revenue sources from radio, physical sales, and digital downloads, which it so desperately depended upon for adequate income.⁶¹ DSPs inevitably pushed back, arguing that the publishers’ demands that they pay both performance and mechanical royalties for a digital transmission of a single song amounted to “double-dipping.”⁶²

Ultimately, the DSPs’ argument failed, and interactive streaming platforms were deemed to need both a public performance license—reflective of the instantaneous nature of streaming—and a mechanical license—reflective of DSPs’ distribution through streaming—to utilize a musical composition.⁶³ Thus, interactive streaming services, many of which began as small start-ups, had to invest an immense amount of time and money to properly license content from both publishing and sound recording stakeholders. This extraordinarily cumbersome licensing system posed a challenge to the growth of DSPs and, as will be discussed further in Section I.D, created a tension that significantly instigated the enactment of the MMA.⁶⁴

Unlike the simple mechanical rate for CDs and digital downloads, mechanical royalty rates for streams are determined by a complicated rate calculation formula.⁶⁵ The rates are calculated using the greater of (a) a designated percentage of a DSP’s total revenue, accounting for total earnings through both paid subscription and advertising revenue or (b) a designated percentage of the Total Content Cost (“TCC”).⁶⁶ TCC represents the total amount that a DSP spends on sound recording and music composition licensing for interactive streaming.⁶⁷ For instance, the most recent CRB rate proceeding for 2023 to 2027, Phonorecords IV, held that the DSPs’ mechanical royalty rate is the greater of 15.35% of their total revenue or 26.2% of TCC.⁶⁸ The rate measurement that is chosen is known as the “headline rate.” The amount DSPs pay for performance licenses is subtracted from the total money pool determined by the headline rate.⁶⁹ The remaining amount is then compared to a “mechanical floor” rate, calculated by multiplying each paid DSP subscriber by a “per subscriber minimum” mechanical royalty fee.⁷⁰ The final mechanical rate is determined by the greater of the original bucket of money or the mechanical floor calculation. This summary merely offers a high-level overview of a complex calculation, highlighting the music copyright system’s intricate and often inaccessible nature when applied to digital streaming.

Figure 4. Summary of a Musical Composition Copyright

Source: Adapted from Jeong, supra Figure 1.

C. The Underlying Theory: Access, Incentives, and Transaction Costs

The patchwork of laws and licenses that make up the music industry, in theory, serve to honor very fundamental policy goals that lie at the heart of all copyright law. For music, in particular, policy is triangulated around three concerns: incentive, access, and transaction costs.

1. Balancing Incentive and Access

In the American free market, intellectual property presents a rare occasion in which the state grants a monopoly—albeit a limited one—to incentivize innovation. The Constitution outlines that from the outset of the country’s establishment, the United States sought to protect creators via the “promot[ion of] the Progress of Science and useful Arts . . . securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”⁷¹

Simply put by music attorney Donald Passman, it is entirely understandable that “if you created something and everybody had the right to use it without paying you, not very many people would go through the trouble of creating anything.”⁷² However, while a monopoly over one’s creation drives an incentive to produce and innovate, it equally presents the risk that rights holders may place exorbitantly high prices on their works, blocking the public from accessing the “science and useful arts” the Constitution aimed to protect in the first place. Thus, under the predominant utilitarian theory of copyright, the story of intellectual property law is an “ ‘access versus incentives’ tradeoff”—a balancing game between maximizing incentive for creators while tempering the scope of their exclusive rights so that consumers can still access and benefit from their work.⁷³ This tension repeatedly comes to the forefront during the proliferation of new dissemination technologies—from the advent of the piano roll to digital downloads to modern streaming services. Each technological inflection point has illustrated that the balance between access and incentive—and between control held by users and creators—is in constant flux.⁷⁴

The introduction of the compulsory mechanical license marked the beginning of numerous legislative decisions in the music regulatory regime that aimed to “recalibrate the balance between creators’ financial incentives and public access to expressive works” when rights holders’ exclusive control over their copyright and ability to pursue “free market licensing” would cause a failure of the copyright equilibrium.⁷⁵ When Congress crafted the 1909 Copyright Act in response to the White-Smith decision,⁷⁶ it hesitated to restore music composition copyright holders’ full exclusive rights.⁷⁷ It feared that doing so within the new mechanical licensing regime would allow copyright holders to “monopolize the business of [music] manufacturing” and prevent the growth of the piano player, a new music distribution technology with vast potential to increase the public’s access to music.⁷⁸ Thus, the compulsory license provided a new legal solution to the incentive-access tension; in exchange for continued compensation, composition copyright holders—songwriters, composers, and music publishers—have been forced to sacrifice the control over their copyright and their right to freely negotiate prices on an open market.

This policy objectively appears to honor a balance between incentive and access; however, the strict pre-MMA rate-setting mechanisms rarely resulted in adjustments to royalty rates over time,⁷⁹ raising questions as to whether the “incentive” provided by these statutory rates was able to respond to songwriters’ and composers’ shifting real-world incentives (or lack thereof). Notably, the prevailing utilitarian theory of copyright policy does not center artists and their incentives to create but rather views supporting artists with an incentive as a means to an end, with the goal of stimulating creation and idea production.⁸⁰ However, if copyright policy ignores artists and fails to truly consider whether it grants them adequate incentives, the access-incentive equilibrium will ultimately fail.

To properly gauge the effectiveness of the access-incentive equilibrium for artists, artists’ incentives must be examined within the industry structure in which they operate. In constructing the copyright system, Congress contemplated that creators would contract with corporate intermediaries such as record labels and publishers, transferring their copyrights in exchange for commercial distribution of their work.⁸¹ Thus, copyright incentive theory generally accounts for providing incentives to both economic actors—creators and intermediaries.⁸² Incentive theory “assumes a chain of value” in which money trickles down from listeners and music distributors to intermediaries and finally to the creators.⁸³ While creators sit furthest in the chain from any source of financial remuneration, they are the source of the creative work that copyright policy hopes to incentivize. Ultimately, one will not know if this “quid pro quo” between incentive and access is working unless one “know[s] how much the creators are getting from the bargain.”⁸⁴ Therefore, even though artist incentive is not the sole purpose of copyright policy, this Note frequently homes in on the growing disincentive to create in the songwriting field, both pre- and post-MMA, which jeopardizes the songwriting profession and the basic copyright equilibrium.

2. Reducing Transaction Costs

For nearly all copyright interests in the American “free market licensing” system, “creators of . . . copyrighted works . . . are free to choose their licensees and negotiate royalties.”⁸⁵ This free-market commitment falls away in a limited number of exceptions; only five categories of compulsory licenses exist—three of which are implemented within the music copyright regime, with the most obtrusive and well-known being the compulsory mechanical license.⁸⁶ What makes music different? Given that the incentive-access trade-off underlies all areas of copyright law, it cannot be the sole explanation for singling out songwriters to be subjected to a compulsory license.

Theorists widely believe that the strongest explanation for the compulsory license is that it not only balances incentive and access but also serves to “remedy market failures related to transaction costs by allowing licensees to bypass costly or unfeasible negotiations.”⁸⁷ When the cost of a licensing regime to the parties is “substantial and logistically difficult,” transaction costs associated with licensing become prohibitively high and deter dissemination of copyrighted work.⁸⁸ This concern of prohibitively high transaction costs is specific to music due to how music is inherently accessed and consumed by the public; unlike other forms of copyrightable works, it is comprised of numerous little pieces of content, all of which must be individually negotiated and licensed in order to be distributed as a larger catalog.⁸⁹ The compulsory license thus aims to eliminate, or at least reduce, the cost of licensing negotiations. Although transaction costs have become the predominant explanation for the persistence of the mechanical license today, some caution that this justification has also been overstated.⁹⁰ For example, on the public performance side of music composition copyright, PROs issue blanket licenses⁹¹ that similarly function to reduce transaction costs that arise from licensing each discrete piece of music.

Access, incentive, and transaction costs cannot, on their own, explain the logic of copyright policy. However, together, this triad of policy considerations is an essential framework to consider when assessing the legal landscape before the MMA’s enactment to explain its aims and determine the overall efficacy of the legislation post-MMA.

D. Framing the Issue: Where Are We Before the MMA?

The challenge underlying copyright law is finding an equilibrium at which the three competing policy goals can coexist. The Music Modernization Act emerged from a rising tension between what publishers and songwriters felt was a desperate imbalance between the incentives provided to them by the music copyright system and the public’s unprecedented and increased access to their work via modern music streaming services. If more people were listening to music than ever before thanks to the mass proliferation of DSPs, why weren’t creators and their intermediaries sharing in that success?⁹² This tension was most acutely felt by songwriters, who sit at the bottom of the copyright “chain of value” and whose livelihoods were increasingly at risk due to the diminishing return for their creative works.⁹³ Publishers, as corporate entities, suffered less financially overall than individual songwriters but were still concerned about their decline in revenue at the hands of the music streaming landscape. Publishers, represented by the National Music Publishers Association (“NMPA”), became a major lobbying force for change and ultimately were key negotiators in drafting the MMA.

Recording artists and record labels had similar grievances with DSPs, although to a lesser degree, due to less government interference and noticeably higher royalties granted to sound recording copyright holders. Further, recording artists could earn revenue through concert ticket sales to help buffer some of the DSP-era royalty losses.⁹⁴ Concerts were potentially a substantial source of income for successful artists—and a source of income not available to songwriters. Nonetheless, mounting concerns around the evolving music industry also drew in the Recording Industry Association of America (“RIAA”) as another key player in crafting the MMA.

1. Compulsory Mechanical License Causes Drastic Disincentive

Musical composition copyright holders were particularly at a detriment prior to the MMA, given the limitations imposed on their copyrights by extensive governmental regulation, including compulsory mechanical licenses and restrictive consent decrees imposed on PROs.⁹⁵ Further, DSPs and composition copyright holders alike found that the compulsory mechanical license did not sufficiently reduce transaction costs, as the mechanical licensing regime prior to the MMA proved far too cumbersome to allow for streamlined payments to rights holders. In 2015, in response to mounting dissatisfaction with the convoluted music copyright regime, the U.S. Copyright Office released a comprehensive 245-page report (hereinafter referred to as the Copyright Office Music Marketplace Report), studying the landscape and proposing changes that would “promote greater fairness, efficiency, consistency, and transparency.”⁹⁶

The Copyright Office Music Marketplace Report admitted that “[v]iewed in the abstract, it is almost hard to believe that the U.S. government sets prices for music. In today’s world, there is virtually no equivalent for this type of federal intervention.”⁹⁷ For composition copyright holders, the singling out of their works to be placed under a restrictive, involuntary licensing regime has caused deep frustration, as the mechanical compulsory license left them subject to rates far below free-market compensation. To be clear, songwriters and publishers are free to negotiate with mechanical licensees—and they often do. However, as mentioned in Section I.A, the pre-MMA statutory rates set by the Copyright Royalty Board (and its prior equivalent, the Copyright Royalty Tribunal) prevented free market rates from being achieved; even though licensees rarely paid the bare minimum statutory rate, the low statutory rate tethered negotiations to a lower price window.⁹⁸ CRB has openly acknowledged that their rates “have considerable impact on the private agreements that enable copyright users to clear the rights for reproduction and distribution of musical works.”⁹⁹

As such, publishers and songwriters were left with no real leverage when attempting to negotiate against licensees who knew that if publishers or songwriters defected from a negotiation, the licensee could just go get the license using the compulsory rate. To illustrate the extent to which the compulsory license depresses profits earned by songwriters, one can look at the overall split of Spotify revenue in 2016: for every dollar of revenue earned on Spotify, 58.5 cents went to the owner of a song’s sound recording (a record label or the artist), 29.38 cents stayed with Spotify as profit, 6.12 cents went to the composition rights holder to cover performance royalties, and 6 cents went to the composition rights holder to cover mechanical royalties.¹⁰⁰ Apple Music’s revenue distribution did not look all that different, though it paid about 6.75 cents on mechanicals and 6.75 cents on performance rights per dollar of revenue.¹⁰¹ While this is framed in terms of revenue split per dollar, each stream produces just a fraction of a cent for a songwriter, requiring approximately 1,000 streams for composition copyright holders to earn a single dollar.¹⁰² Each royalty paid for the use of a musical composition is even further divided amongst the publisher and the songwriters who worked on the composition.

Figure 5. What Happened to a Dollar of Revenue on Spotify and Apple Music (in 2016)

Source: Adapted from Manatt, Phelps & Phillips, supra note 100.

Overall, streaming represented a shift toward listening behaviors that do not “generate significant income for artists.”¹⁰³ Streaming ushered in an overall increase in performance royalties earned; however, this slight increase in revenue—at royalty rates already persistently lower than publishers or songwriters would like—was unable to make up for the significant “downward spiral of record sales and therefore artist and mechanical royalties.”¹⁰⁴ Many songwriters at the time reported “ ‘a reduction of 60 to 70% or more’ in mechanical royalties” since the introduction of streaming services onto the music market, noting that their amount of mechanical royalties only continued to decrease rapidly.¹⁰⁵

The below-market statutory rate for mechanical royalties and the shift in revenue sources gradually diminished the overall incentive for songwriters to write music in the pre-MMA market.¹⁰⁶ By the time the MMA was enacted in 2018, it had been years since songwriters felt they could make a living off songwriting as they had before the era of streaming services. In 2014, Nashville Songwriters Association International reported that Nashville, a well-known national hub for songwriters, saw an 80% decrease between 2001 and 2014 in individuals claiming songwriting as a full-time occupation, lamenting that many songwriters have been “forced out of the profession” in the wake of digital streaming.¹⁰⁷ In 2016, acclaimed music attorney Dina LaPolt told one songwriter client, who was shocked by her measly royalty check after achieving a hit song, that “unless streaming rates [] changed and the music-licensing system [was] overhauled for the digital age, the profession of songwriting was on its way to extinction.”¹⁰⁸

By applying the incentive theory of copyright to examine the music industry’s structure, one can see the creator and intermediary dynamic at play, such that even though publishers decried their diminishing incentives to administer the copyrights they held, even less remuneration trickled down to the creative mind whose work copyright policy seeks to encourage.¹⁰⁹ While publishers’ services are an essential part of the music industry, the incentive problem was exacerbated by the degree to which the publisher’s share of royalties also diminishes a songwriter’s return for their efforts, as they stand last in line for compensation.

It has often been asserted that when the compulsory license forces rights holders to give up control over otherwise exclusive intellectual property rights, the expected trade-off is, at the very least, an assurance of payment to copyright owners—this is what makes the license work within the balance of copyright policy goals.¹¹⁰ In reality, this guarantee of payment meant little in the way of incentives once DSPs became the primary mode of music consumption, and the royalty system no longer matched the predominant music technology of the day. While testifying in front of the Senate Judiciary Committee in favor of passing the MMA, Grammy-award-winning songwriter Josh Kear said of his community of songwriters in Nashville, “we have lost our entire middle class of songwriters—they’re gone.”¹¹¹ Grammy-nominated artist Will Sheff affirmed this sentiment, telling the Washington Post that “ ‘[a]round 2011, the bottom fell out,’ . . . [marking] the beginning of the end of a ‘musical middle class.’ ”¹¹²

While copyright policy does not center incentives to artists, the Supreme Court has acknowledged that, at a minimum, “[t]he rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.”¹¹³ The bounds of such a “fair return” may be debated; however, when incentive dissipated and songwriters left the profession en masse, something was surely off in the copyright access-incentive equilibrium. Ultimately, in the context of a new digital age, the pre-MMA legal regime failed to maintain an adequate incentivization system as had been a pillar of copyright law.¹¹⁴

2. Compulsory Mechanical License Overflows with Transaction Costs

In addition to songwriter grievances, the pre-MMA system also strained the growth and capabilities of DSPs. Streaming companies were immediately overwhelmed by the licensing demands of their business model as they attempted to manage a catalog of tens of millions of songs and an untenable amount of data.¹¹⁵ Further, many of the song files that record labels shared with DSPs for upload onto their services had missing songwriter identification in their metadata, meaning that DSPs often had no idea to whom they owed money on the publishing and songwriter side.¹¹⁶ Due to a simultaneous inundation of information and a lack of information, unpaid mechanical royalties began to pile up.

In the pre-MMA legal regime, section 115 of the Copyright Act allowed DSPs to file a “Notice of Intent” (“NOI”) with the Copyright Office for each song it intended to use.¹¹⁷ By declaring their intent to use a copyrighted musical composition via an NOI, DSPs were granted legal immunity from copyright infringement “until and if the songwriter or their publisher could be identified.”¹¹⁸ DSPs filed NOIs by the tens of thousands, but without the infrastructure to locate rights holders, NOIs essentially enabled DSPs to use copyrighted material without being held accountable for finding and paying rights holders. At the same time, the Copyright Office did not review notices for “legal sufficiency” or errors¹¹⁹ and was overwhelmed by the massive volume of notices submitted by DSPs.¹²⁰

Further, rights holders bore the burden of claiming their royalties yet had no way of knowing when they went missing nor an understanding of how to claim them in a convoluted and complex system.¹²¹ This burden created yet another layer of transaction costs on the rights holders’ side; not only would it take immense time and effort on the part of the rights holder to navigate an impossibly complex web of mechanical licenses, but it also required cultivating a copyright licensing expertise that many creatives in the music industry simply did not have. Very frequently, this hurt independent songwriters the most, as they had little business or legal savviness to understand how and why they needed to assert their copyright ownership.

The mechanical licensing system quickly proved inefficient, burdensome, and unaccountable to rights holders in the context of the streaming business model. As NMPA President and CEO David Israelite pointed out in the MMA’s Senate Judiciary Committee hearing, the music industry was relying on “a [licensing] system that was built for licensing individual albums—ten at a time, twelve at a time—and using it to try to empower digital companies to put up 40 million songs overnight”; he asserted bluntly, “It doesn’t work.”¹²² By 2015, an estimated $50 to $75 million dollars sat unmatched and unpaid by DSPs.¹²³ The music industry thus dubbed these unmatched royalties “black box royalties.” This problem came to a head as publishing companies began launching lawsuits against the DSPs for, in essence, operating their businesses under a model that relied on copyright infringement, even if unintentionally.¹²⁴ In interviews, Israelite estimated that for roughly twenty-five percent of all streams, composition copyright owners were not properly identified, and “as much as 25 percent of royalty payments [were] not being paid to publishers, or [were] being distributed to the wrong entities.”¹²⁵ DSPs, daunted by lawsuits and claiming they wanted to “pay every penny,” began calling on the industry to work with them to develop a transparent and accountable way to manage publishing rights.¹²⁶

Here, the problem pre-MMA was twofold. First, the compulsory mechanical license was no longer serving its purpose of reducing the burden of transaction costs because while licensing negotiations were feasible due to the compulsory license, the DSPs’ task of complying with licensing obligations was still near logistically impossible—DSPs simply could not figure out who to pay. Rather than prohibiting the DSPs from operating, the pre-MMA licensing regime compelled DSPs to function on an “infringement model,” which was damning to the legitimacy of music’s copyright laws. While the compulsory mechanical license may have once been an effective mechanism to constrain transaction costs, when imposed upon streaming technology, the transaction costs of mechanical licensing had shifted and were ultimately too high. Secondly, this issue further harmed the already-diminished incentive for songwriters to create because even as they produced work, it took ages to see that money return to their pockets—if it ever did.¹²⁷

Amongst the triad of copyright policy goals, it at least seemed that access to music was at an all-time high. Subscribers to DSPs only continued to increase, and Americans were listening to more music than ever. However, increased access cannot be considered without its tether to copyright’s countervailing need to incentivize creation. Rapidly decreasing songwriter incentive to create, coupled with the public’s disproportionate new-found access to music, likely signaled that the pre-MMA access-incentive trade-off was sorely out of balance.

Additionally, as publishers and songwriters fought to increase royalty rates, the DSPs had their own impending “access” problem looming over them. Since its invention in the mid-2000s, music streaming had never been profitable; even the major DSPs consistently operated at a loss since their founding.¹²⁸ Though the DSPs’ business models ushered in a new level of public access to music, it remained a concern that these tides could turn. For how long could DSPs continue providing such a high level of access if their business model did not turn a profit? This long-term concern made DSPs fearful that royalty rate increases would stifle company revenue and further challenge the DSPs’ business model.

Table 1. Pre-MMA Policy Concerns
Policy Goal	Score
Incentives	Incentive for songwriters is LOW, as attributable to a minimal statutory royalty rate, governmental restrictions on both types of songwriters’ royalties, and industry structure providing equal payout between publishers and songwriters.
Transaction Costs	Transaction costs are HIGH. While the compulsory license reduces transaction costs of licensing negotiation, matching royalties to songwriters imposes high transaction costs for DSPs and songwriters alike.
Access	Access is HIGH in the short term with concern that this variable may shift if DSPs continue operating at a deficit.

II. SHIFTS UNDER TITLE I OF THE MUSIC MODERNIZATION ACT

The MMA passed the House and Senate unanimously in 2018 and received unprecedented support from a multitude of players in the music industry. It signified the culmination of years of negotiation and bargaining between music publishers, songwriters, and DSPs, which legislators facilitated in a moment when the parties’ interests were at last relatively aligned.¹²⁹ DSPs, faced with a wave of crushing infringement lawsuits, had a major incentive to support the passage of an act that would accommodate their business model and protect them from future liability.¹³⁰ Songwriters and publishers, on the other hand, were desperate for a legal solution that would restore the value of their mechanical rights to something comparable to those before the streaming age or that, at the very least, resulted in a fairer system than the one they had been operating in for nearly a decade.¹³¹ Signed into law on October 11, 2018, the Music Modernization Act was the most substantial revision to copyright law in two decades.¹³² Title I of the MMA, known as the Musical Works Modernization Act, not only endeavored to adapt the Copyright Act’s musical composition provisions to better accommodate streaming technology, but it also tweaked aspects of the musical composition copyright in ways that bettered the position of publishers and songwriters overall to counter issues raised by the streaming model.

At a high level, Title I of the MMA implemented three primary changes to improve how songwriters received their royalties and the standard for calculating them. First, it allowed DSPs to obtain a blanket mechanical compulsory license specifically for streaming mechanicals that would cover all musical compositions held in a licensor’s catalog, much like the blanket license used for granting public performance rights.¹³³ In conjunction, Title I also established the Mechanical Licensing Collective (“MLC”), a non-governmental, non-profit entity authorized to “offer and administer blanket licenses” to DSPs, “[c]ollect and distribute royalties from digital music providers,” and maintain a “musical works database” to track information about licensing and ownership of mechanical rights.¹³⁴ These first two major changes enacted in Title I were designed to resolve “long-festering pain points” between publishers and DSPs due to the DSPs’ inability to pay out licensing obligations under the pre-MMA legal regime.¹³⁵ As discussed further in the next subsection, these two additions to music copyright law aimed to address head-on the mechanical license’s growing transaction cost problem that emerged from DSPs’ massive streaming catalogs. Lastly, Title I imposed alterations to the royalty tribunal procedures, “direct[ing] the Copyright Royalty Board (CRB) . . . to employ a ‘willing buyer, willing seller’ standard to reduce the potential for compulsory licenses to undervalue the mechanical right.”¹³⁶ Ultimately, Title I of the MMA represents an acknowledgment that the fundamental balance of interests demanded by copyright policy was no longer in check.

A. Addressing the Black Box Royalty Problem

1. The MMA’s Solution: Creating the MLC

Three years prior to the passage of the MMA, the Copyright Office Music Marketplace Report had concluded that a centralized, comprehensive database of mechanical copyright ownership “would substantially enhance transparency in the music licensing system, reduce transaction costs, and facilitate direct licensing through private negotiation in the open market.”¹³⁷ Other music licensing regimes, such as public performance licensing, successfully used the combination of a collective licensing organization and a blanket license to streamline similar transaction cost issues, providing a potential model for success.¹³⁸ Thus, throughout discussions about the MMA, the concept of a responsible collective licensing body was highly supported across the industry. The entity that was created, the MLC, serves the primary role of administering the new blanket licenses and royalties and maintaining a comprehensive database of mechanical copyright holders.

Under the MMA, DSPs also agreed to pay all costs associated with this new licensing entity.¹³⁹ Unlike any other existing licensing collective, the MLC does not take a commission from the royalty pool before distributing royalties, ensuring that composition rights holders retain one hundred percent of all royalties passed through the MLC and that their royalty money is not further diminished through the new collective licensing agency’s establishment.¹⁴⁰ In exchange, when DSPs obtain a blanket mechanical license from the MLC, they are broadly shielded from extremely costly infringement liability and burdensome statutory damages.¹⁴¹

At the outset of drafting the MMA, the growing multi-million-dollar pool of unpaid black box royalties presented one of the most pressing challenges to restoring order in the mechanical copyright system. Exorbitant transaction costs from individually licensing mass amounts of content—not to mention the ex-post transaction costs of litigating licensing failures—directly cut against the compulsory license’s original purpose and placed both copyright holders and DSP licensees in untenable positions. Thus, a blanket compulsory license under the MWMA, covering all songs under a single lump-sum royalty fee, represented a major solution to one of the most glaring problems in the pre-MMA digital copyright licensing space. It was to be administered by the newly formed MLC entity, which became officially designated to carry out the MMA’s statutory responsibilities by the Copyright Office in July 2019.¹⁴²

In January 2021, the MLC launched its full operation and began administering blanket licenses.¹⁴³ Only qualified DSPs are eligible to receive this blanket license,¹⁴⁴ and at the time the MLC became operational, it reported that over forty eligible DSP services had started using its blanket license.¹⁴⁵ DSPs now no longer have to individually license songs by the tens of thousands and, as a tradeoff for this newfound legal security, the DSP licensees must pay out the full cost of mechanical licensing fees to the newly formed MLC entity. On a monthly basis, each DSP sends the MLC data that logs all recordings used on the streaming service that month, as well as the corresponding mechanical royalties owed, which the MLC maintains in its “MLC Portal.”¹⁴⁶ It is then responsible for locating and paying out known rights holders in monthly payments,¹⁴⁷ the first one of which was completed in April 2021.¹⁴⁸ The MLC’s model ensures that DSPs regularly process and pay royalties for all licensed works—even those with missing or incomplete songwriter information—rather than allowing them to hold onto royalty money under the pretext that rights holders information was nonexistent or too hard for DSPs to track down.

After the MLC distributes royalties to known rights holders, it places all unmatched and unclaimed royalties in an interest-earning account for three years, where they await a potential match with their copyright holders.¹⁴⁹ The MLC distinguishes between royalties that may be “unmatched,” such as the black box royalties that have no known association with any musical work in the MLC database, and “unclaimed” royalties, which are matched to a song but cannot be paid out because shares of the song have not yet been claimed by their rights holders.¹⁵⁰ Both types of royalties make up the sum of money pooled into this account. If, after three years, the royalties remain unmatched or unclaimed, they are liquidated to known copyright holders—both publishers and songwriters.¹⁵¹ Ultimately, while some unclaimed royalties may never make it into the hands of their rightful owners, the MLC’s pooling measure strengthens incentives for artists in the copyright system by ensuring that the money is, at the very least, redistributed amongst the rights-holding community. Prior, DSPs financially benefited from songwriters’ failure to locate their unmatched royalties, as the unpaid money sat in their pockets and created no incentive for DSPs to seek a solution to orphaned royalties.¹⁵² This further discouraged music composition rights holders, especially songwriters, who felt DSP’s unpaid use of their work signaled just how little both DSPs and the industry at large valued their contributions to music.

While the DSPs benefited from legal clarity as a result of MLC’s creation, the legislation largely arose from a recognition that songwriters needed to be “properly protected” and that a new mechanical licensing system required creating “sufficient incentives . . . to find the people the money [from royalties] belong[ed] to.”¹⁵³ With songwriters’ concerns placed at the center of the legislation, an independent collective like the MLC primarily protects and advocates for the mechanical rights of composition copyright holders. The MLC thus aims to ensure that, eventually, as few royalties as possible will languish in the ownerless “black box” pool by creating an accessible mechanism for songwriters and publishers to claim ownership of a work.

Though DSPs still escaped the primary burden of locating and paying out rights holders, the MMA took part of this burden off the shoulders of rights holders as the MMA established the MLC to increase transparency in the mechanical licensing process and conduct outreach to artists. Title I of the MMA imbued the MLC with the responsibility of “engag[ing] in efforts to identify musical works . . . and locate the copyright owners of such musical works,” creating an obligation on the part of the MLC to seek out rights holders rather than allow black box royalties to accrue without accountability.¹⁵⁴ A central part of executing this mandate included creating a “musical works database” within the MLC Portal, known as the MLC Public Work Search.¹⁵⁵ The public can access the records in the Public Work Search, while verified “members”—payable publishers or songwriters—can use related portals to register their works or find and claim an ownership share in an already registered work.¹⁵⁶ Each MLC database entry contains comprehensive information about the listed song, including the percentage of ownership share in the work, the identity and location of the composition copyright owners, if known, and ownership information regarding the sound recording that embodies the musical work.¹⁵⁷ For example, Figure 6 shows MLC entries for two versions of SZA’s “Kill Bill.”¹⁵⁸ The entry for the song’s original release indicates that the MLC database has information for 100% of the “total known shares” of songwriter ownership, including songwriter names and publishers. In contrast, the version of “Kill Bill” featuring Doja Cat indicates that only 82.5% of the song’s ownership is accounted for in the MLC Portal, so the song’s publisher or collaborating songwriter may search the song and discover whether their share of the work remains unattributed.

Figure 6. MLC’s Comprehensive Database: The Public Work Search

Source: The MLC Public Work Search, supra note 21 (searched under “Work Title” for the song “Kill Bill,” added writer name criteria, and searched for Rob Bisel).

The MLC’s user-friendly database lowers the barrier to entry for copyright holders to assert ownership of their works, making it feasible for them to monitor their rights in licensing transactions. Additionally, by increasing assurances that songwriters will get paid correctly and reliably for what they are owed, the MLC’s Portal and Public Work Search should resolve gaps in songwriter pay and bolster the incentive for creators.

The MLC also works with another entity established in Title I of the MMA called the Digital Licensee Coordinator (“DLC”), which represents DSPs in the new post-MMA licensing system and helps the MLC carry out its mandate.¹⁵⁹ The DLC is required to “assist the [MLC] in the efforts . . . to locate and identify copyright owners of unmatched musical works” through active outreach to the songwriting community.¹⁶⁰ Together, the MLC and DLC create resources and host webinars oriented toward independent songwriters to educate them on how to assert their rights in the post-MMA copyright regime.¹⁶¹ The accessibility and transparency built into the MMA aim to further lower the transaction cost barrier for DSPs and rights holders alike to fulfill obligations that accompany the compulsory license.

Lastly, Title I of the MMA sought to make music composition copyright holders whole by capturing the millions of dollars of unpaid royalties held by the DSPs prior to the MMA’s passage, bestowing upon the MLC the responsibility of uniting historical unmatched royalties with their proper rights holders.¹⁶² In February 2021, twenty-one DSPs finally transferred over $424 million to the MLC in historical unmatched royalties and provided accompanying usage data to help determine how the money should correspond with eventual royalty payments.¹⁶³ Despite the DSPs’ continued use of songwriters’ content on their platforms over the preceding decade, this money represented the first mechanical royalty payment made for content with “unmatched” copyright owners. The MLC made its first payment of formerly unmatched royalties from the $424 million pool in June 2022.¹⁶⁴ As of June 2023, the MLC has distributed $24 million of the originally unpaid, unmatched royalties.¹⁶⁵ The MLC has not yet paid out all historical unmatched royalties; however, its success in doing so will play an essential role in restoring songwriters’ trust in the music copyright system to protect their work and provide the financial incentives promised by copyright’s underlying policy goals.

2. Unfolding Reality: The MLC in Action

As reasonably expected for the establishment of a new entity, the MLC was not operational until over two years after the MMA was passed, and only a few years have since passed for the MLC to prove its worth as a solution to the publishers’ and songwriters’ concerns.¹⁶⁶ That said, the MLC achieved a robust operation rather quickly, with over 30 million songs registered in its database as of March 2023¹⁶⁷ and having already distributed over $1.5 billion in mechanical royalties as of its recent metric announcement in October 2023.¹⁶⁸

While these metrics contextualize the growth of the MLC, they reveal less about the entity’s success in achieving its founding goals. In this regard, however, it also seems relatively successful in its early stages, though much remains to be seen.¹⁶⁹ As of March 2023, the MLC announced that it had achieved a consistent 89% match rate for all royalty payments passing through the collective,¹⁷⁰ and in October 2023, the collective achieved a just slightly higher match rate at 90%.¹⁷¹ This match rate refers to the rate at which the MLC can properly attribute royalties to an existing song in its database, not the rate at which royalties are actually claimed, which still requires a proactive assertion of ownership by the copyright holder.¹⁷² With approximately 25% of all royalties deemed missing or unmatched before 2018, matched royalties have increased by about 15% between the pre-MMA system and now due to the MLC’s database and matching system.¹⁷³ The MLC’s CEO, Kris Ahrend, suggests that the more data the MLC receives, the more it will be able to close out this gap; the MLC continues to grow its database with the participation of its publisher and songwriter members.¹⁷⁴ Most recently, the MLC has partnered with five music data matching vendors to improve its match rate, though the MLC’s greatest challenge will remain in gathering data on its most difficult songs—“those created by DIY, unsigned songwriters, many of whom are still unaware of The MLC.”¹⁷⁵

Additionally, concerning the historical unmatched royalties accrued before 2018, $200 million of the original $242 million pool paid in February 2021 has been matched with copyright holders, meaning that the MLC has almost fully accounted for the historical void of rights holder information in just under three years after its founding.¹⁷⁶ Though it has paid out only a small fraction of these royalties to date, this is due to circumstances outside the MLC’s control.¹⁷⁷

In sum, the MLC is, on paper, doing what the MMA intended—just perhaps more slowly than songwriters and publishers would like. Though more work remains, initial data suggests that the MLC has absorbed a significant amount of the existing transaction costs that complicated and cluttered the pre-MMA mechanical licensing system. DSPs can no longer get away with licensing content for free, hundreds of thousands of unverified NOIs have been eliminated, and composition rights holders can seek out their work and lay claim to what they are rightfully owed.¹⁷⁸ There are, of course, criticisms of the MLC as well. Songwriters have protested the MLC’s refusal to publicize the sum of money it holds in unmatched royalties, claiming that the MLC has an incentive to refuse transparency, as the majority of its board is comprised of publishing company representatives who disproportionately benefit if the unmatched royalty pool remains orphaned.¹⁷⁹ These grievances indicate songwriters’ ongoing scramble for remuneration at the bottom of the value chain.¹⁸⁰ Thus, even though addressing songwriter incentive was one of the MMA’s core goals, it has become likely that MLC can only do so much to remedy this concern.

B. A New Regime for Royalty Rate Setting

1. The MMA’s Solution: A Willing Buyer–Willing Seller Rate

As previously explored, one of the direst realities prior to the passage of the MMA was the rapidly disappearing songwriter profession. Statistics and widespread testimony illustrated just how much songwriters’ livelihoods had been altered by the rise of DSPs; this reality was a repeated feature of discussion at the Senate’s hearing on the MMA in 2018 and framed a sense of urgency around passing the law.¹⁸¹ While unmatched and unpaid royalties accounted for a fraction of songwriters’ diminished incentive, the bottom line remained that there was simply no longer enough money being generated by mechanical royalties in the digital age. The massive reduction in overall mechanical royalties caused by streaming’s replacement of physical albums or digital download sales and the long-depressed statutory royalty rates produced an untenable situation for songwriters. Though publishers, too, felt the strain on mechanical royalty revenue, the plight of songwriters demanded resolution by the MMA for copyright policy to achieve its stated goals.

Title I of the MMA, therefore, introduced a new standard for the CRB to use when determining mechanical royalty rates—not only for streaming but for all other mechanical royalties as well. The MMA shifted the CRB’s rate-setting standard from the highly criticized “policy-oriented” rate to a “willing buyer–willing seller” rate meant to reflect market demand. The standard, which the music industry had demanded for years, requires that the CRB “establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.”¹⁸² As cited in another CRB rate proceeding that utilized the willing buyer–willing seller rate standard, “the Judges look to . . . a hypothetical marketplace, free of the influence of compulsory, statutory licenses.”¹⁸³

To make rate determinations under this standard, CRB judges are also to “base their decision on economic, competitive, and programming information presented by the parties,” which may include factors like the degree to which a compulsory licensee’s service interferes with or enhances a musical work copyright holder’s other revenue streams and the parties’ “relative creative contribution, technological contribution, capital investment, cost, and risk.”¹⁸⁴ Before the MMA, the CRB followed a “limited-evidence process,” and any market data was excluded from consideration when setting mechanical rates.¹⁸⁵ Thus, while the original 801(b) factors demanded that the CRB consider “fair income under existing economic conditions” as suggested by the incentive theory of copyright policy, pre-MMA rates clearly could not fully adjust for economic realities when the legal regime excluded market data from consideration.¹⁸⁶

Despite the full legislative history showing the initial access-incentive justification for the mechanical compulsory license,¹⁸⁷ in the 2015 Copyright Office Music Marketplace Report, the Office asserted that a compulsory license “should exist only when clearly needed to address a market failure.”¹⁸⁸ The report explicitly called on Congress to adopt a “uniform market-based ratesetting standard,” stating that “[t]here is no policy justification for a standard that requires music creators to subsidize those who seek profit from their works.”¹⁸⁹ In taking this position, the Copyright Office acknowledged that the supposed access-incentive reasoning behind the compulsory license overtly restrained creators’ sense of incentive by forcing them to underwrite licensees’ royalty costs at their own expense. The willing buyer–willing seller rate-setting standard had also already been implemented in most other CRB rate proceedings.¹⁹⁰ Some critics argue that shifting from a policy-oriented analysis to a willing buyer–willing seller analysis abandons copyright’s underlying policy goals;¹⁹¹ however, the failure of 801(b) factors to adequately support incentive, as shown by the Copyright Office’s findings, suggests that a willing buyer–willing seller rate could better account for some typical copyright policy considerations than the original policy factors themselves.

Additionally, songwriters and publishers advocated for this change in hopes that it would lead to higher compensation, reinforcing this provision’s goal of recalibrating the incentive-access tradeoff. Though the willing buyer–willing seller rate would not fully create free market mechanical rates, as would be possible without any compulsory license regime, theoretically, it at least mimics a free-market reality tempered by CRB review. David Israelite described these rate-setting alterations, stating that if “songwriters are to remain in a compulsory license prison,” the MMA’s rate-setting provisions “at least improve the conditions of their confinement.”¹⁹² As his tone connotes, publishers and songwriters generally would have much preferred the abolition of the compulsory license “prison” entirely, yet in the name of achieving consensus legislation, accepted the shift to the willing buyer–willing seller rate.¹⁹³ One skeptical songwriter described the songwriting community’s celebration of the willing buyer–willing seller rate as an “example of Stockholm Syndrome” in reaction to a “beautification” of the dreaded compulsory license.¹⁹⁴ Those who share this belief doubt that a willing buyer–willing seller rate regime will make any substantive difference in improving the massive incentive problem in the streaming era.

2. Unfolding Reality: Phonorecords IV Under a Willing Buyer–Willing Seller Rate

Since the MMA’s passage in 2018, only one CRB proceeding has been decided under the new rate-setting regime, and this proceeding provided only minimal foreshadowing as to whether the rate standard can bring composition copyright holders closer to fair compensation of decades past. Phonorecords IV, which set the royalty rates for musical compositions between 2023 and 2027, began in 2021.¹⁹⁵ At its outset, the key industry parties involved in the proceedings—the National Music Publishers’ Association, the Nashville Songwriters Association International, and the Digital Media Association (which represents the DSPs)—seemed poised for an extensive legal battle, as all submitted drastically disparate rate proposals to the CRB.¹⁹⁶

Phonorecords IV represented a major moment for many songwriters who eagerly anticipated the first rate proceeding to implement MMA’s new standard.¹⁹⁷ However, in a surprising turn, industry players ultimately settled in August 2022 before the CRB’s final adjudication, agreeing on a royalty headline rate of 15.35% of the DSP’s total annual revenue.¹⁹⁸ When the CRB approved the settlement and published its rate determinations in December 2022, it was rebuked by a number of songwriter groups, as they had held out hope that the new rate-setting standard would enable another needed rate increase.¹⁹⁹ Several opposition comments submitted to the CRB asserted songwriters’ concerns that the settlement “would thwart application of the willing buyer, willing seller rate setting standard,” which would have been applied for the first time in the absence of a settlement.²⁰⁰

In its final publication of the Phonorecords IV rate determination, the CRB did note that although the willing buyer–willing seller standard “was not expressly applied as it would be in a full proceeding, the operable rate standard exist[ed] as a relevant factor” when considering the validity of the settlement.²⁰¹ The settlement, thus, was not devoid of the new standard, though the extent of its impact on the CRB’s decision-making remains unclear. The CRB stated it found no “reasonable basis” to reject the settlement and its suggested reasons may allude to the influence of the new rate standard.²⁰² The CRB asserted that it found no persuasive economic argument for rejecting the settlement, particularly indicating that the rate structure was not “gratuitous.”²⁰³ Instead, the settlement included thoughtful changes to prior rates and was designed through a careful negotiation in which “complex terms in [the] commercial agreement” represented a “market [that is] itself . . . complex.”²⁰⁴ While this does not fully provide an analysis of how rates may have differed if they had been developed by the CRB under a pure willing buyer–willing seller standard, it suggests that the factors used to consider a free and competitive market do not necessarily lend themselves to as noticeably high of a rate change as many in the industry may have anticipated.

Additionally, the negotiation itself is viewed to represent prices set between a willing buyer and a willing seller, and, as a practical matter, this may forebode a stifled rate standard for future Phonorecord rate proceedings. Strong evidence suggests that regardless of settlement, the willing buyer–willing seller rate holds little weight when mechanical royalty rates have no hypothetical market of willing buyers and willing sellers—the mechanical royalty has never once been considered in the context of true market demand.²⁰⁵ In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act, in which a willing buyer–willing seller standard similarly replaced 801(b) policy factors in CRB rate proceedings for noninteractive public performance royalties.²⁰⁶ In that situation, the Copyright Arbitration Royalty Panel, the predecessor to the CRB, was left with “the unenviable task of ascertaining what a willing webcaster and a willing record label would consider to be a fair deal for Internet radio royalties in the face of an almost total absence of real world evidence.”²⁰⁷ In the same vein, the willing buyer–willing seller mechanical license rate “seeks to construct or emulate [a ‘market’ that] does not exist and often has never existed.”²⁰⁸ Under this analysis, it seems possible that the NMPA, in pursuing this settlement over litigating for a desirable rate, may have filled the vacuum of market knowledge with a rate that will lay a foundation for future decisions and is less than desirable for publishers and songwriters in the long run. Notably, in past rate proceedings for a willing buyer–willing seller standard, the CRB found that “[t]here is no a priori reason to conclude that the rates set in [an] earlier proceeding failed to reflect or approximate market forces.”²⁰⁹

The Phonorecords IV settlement may suggest that, at least in the short term, the MMA’s new rate-setting standard will result in no real improvement in incentives for songwriters, as demanded to rectify the current imbalanced copyright policy. The early days of the Phonorecords IV proceeding may also provide insight into challenges posed by converting to this new rate-setting norm. Immediately after the parties to Phonorecords IV submitted their rate proposals, the CRB used the new willing buyer–willing seller standard to deny the NMPA’s request for further documentation regarding an initial lowball DSP proposal.²¹⁰ The CRB rejected their request for information from the DSPs explaining the “historical quantum” of DSP revenue to be deducted from the mechanical royalty pool under the DSPs’ rate proposal and information on the “impact” of those proposed deduction terms on mechanical royalties.²¹¹ The CRB held that such justifications for further documents may have been relevant under two of the former 801(b) standards of fairness and “disruption-avoidance,” but that such considerations of “impact,” “historical quantum” of revenue, and deduction terms no longer appeared to be appropriate when purely assessing market factors relating to the parties’ investment in their products and positions in relation to economic demand.²¹² This further suggests that though the standard may in some ways seem liberatory by providing a comparison to an open market, it may also limit composition copyright holders from making arguments about traditional copyright policy considerations, including fairness.

Despite early signs that the willing buyer–willing seller standard may not yield the rate increases publishers and songwriters sought, any overall rate increases may also raise a concern on the horizon for DSPs. Phonorecords III, which set rates for 2017 to 2022, was the last CRB proceeding conducted under the pre-MMA standard judged by 801(b) factors, and it introduced the most significant rate increase in the CRB’s history when it increased the headline rate from 10.5% of DSP’s revenue to 15.1%.²¹³ The DSPs appealed this major win for publishers and songwriters, and not long after the CRB affirmed Phonorecord III on appeal, Spotify and YouTube music raised their prices just a few days apart from each other, indicating that when incentives to copyright holders improve, the access variable, in turn, is affected as well.²¹⁴ Apple Music and Amazon Music also raised their prices the year before in 2022.²¹⁵ While this price increase occurred in the aftermath of the Phonorecords III, a proceeding that was not the product of MMA legal changes, it raises questions about the cost of the willing buyer–willing seller rate should it achieve its intended outcome of increasing copyright holder compensation. Increased royalty rates are of particular concern for Spotify, which has operated at a loss every year since its founding despite being the United States’ most popular music streaming platform.²¹⁶ As indicated by the price hikes, the burden of licensing costs is ultimately passed on to the consumer and impinges on public access to copyrighted works. Nonetheless, while this concern remains in the background, the balance between access and incentive likely still demands an increase in consumer prices to effectuate the increased incentive necessary to salvage the songwriting profession.

Table 2. Pre- and Post-MMA Policy Concerns
Policy Goal	Pre-MMA Score	Post-MMA Score
Incentives	Incentive for songwriters is LOW; attributable to a minimal statutory royalty rate, governmental restrictions on both types of songwriters’ royalties, and industry structure providing equal payout between publishers and songwriters.	MARGINALLY IMPROVED. It will require several more years to see how much the MMA altered incentives for creators. However, songwriter testimony strongly suggests that creators at the bottom of the copyright chain of value have not seen the MMA substantively move the needle on the incentive variable. This remains an urgent problem in the copyright policy triad, indicating that the equilibrium of policy goals remains unbalanced.
Access	Access is HIGH in the short term, with concern that this variable may shift if DSPs continue operating at a deficit.	HIGH, but the same problem remains as prior to the MMA. Costs will likely be pushed onto the consumer if royalty rates continue to rise in response to the unsolved incentive variable.
Transaction Costs	Transaction costs are HIGH. While the compulsory license reduces transaction costs of licensing negotiation, matching royalties to songwriters imposes high transaction costs for DSPs and songwriters alike.	VASTLY IMPROVED. The MLC has effectively begun to reduce transaction costs by mimicking the collective licensing and blanket license model of other areas of copyright law. It will take several more years to see the full efficiency of the MLC, but it has driven strong results thus far.

III. CONSIDERATIONS FOR THE FUTURE

A. Approaching the First MLC Five-Year Review

Section 102(a)(3)(B)(ii) of Title I of the MMA calls for periodic review of the MLC’s designation by the Copyright Office every five years to review the entity’s functioning and determine whether the MLC shall continue its designation as the MMA’s chosen organization to orchestrate and manage mechanical licensing.²¹⁷ January 2024 marked the beginning of this first review period, though it remains uncertain what the scope of this review will include.²¹⁸ The MMA suggests that the Copyright Office will solicit information to assess only the high-level question of continued designation rather than initiating a review with further recommendations or imperatives for the MLC’s improvement.²¹⁹ Some songwriters hoped the review would include more, having raised concerns on various alleged issues regarding songwriter representation within MLC’s Board and other critiques beyond the scope of this Note.

Currently, no known reason exists to suspect that MLC’s designation will change. The MLC attained substantial achievements thus far in a short time, establishing its infrastructure, creating a robust and growing database, building out resources, and paying out upwards of $1.5 billion in royalties.²²⁰ Its success was publicly affirmed by an array of industry players in a June 2023 House Judiciary Committee hearing on the MMA’s five-year milestone.²²¹ Even with successes, there has been insufficient time to prove the MLC’s full success or to render it ineffective so as to cause a deeper assessment of the MLC’s designation.

B. Reconsidering the Compulsory Mechanical License: Theoretical Shifts Versus Industry Realities

A handful of songwriters have used the pending five-year review as a moment to demand another, more fundamental review of the music licensing system—a review of the mechanical compulsory license.²²² The Copyright Board outright rejected this suggestion, stating that because only two and a half years have passed since the MMA’s licensing changes were implemented, it would be “premature at this time to engage in a new study of the Section 115 license.”²²³

While this demand was more of a pipe dream—and not within the MMA’s review requirements—the early success of the MLC certainly calls into question the basic necessity of a compulsory license. The mechanical compulsory license was once a fix-all solution to calibrating incentive, access, and transaction costs, but now, the MMA’s new collective licensing organization and blanket licensing system appear to pull their weight in correcting transaction costs. Even before the MMA implemented this model, it has been effective in multiple other areas of music copyright law as a solution to mass licensing numerous small, discrete pieces of content. Meanwhile, the compulsory aspect of the mechanical license continues to prevent a recalibration of the access-incentive equilibrium vis-à-vis an unprecedentedly high level of access and demand for music and an unprecedently low level of songwriter incentive to create it.

Theoretically, abolishing the mechanical compulsory license likely makes sense. In addition to being an anomaly in the American system, today, the U.S. remains the only country outside Australia to maintain compulsory licensing for mechanical rights.²²⁴ Its use has also clearly been controversial throughout its history; in 2004, at the earliest outset of streaming in the music industry, then-Register of Copyrights Marybeth Peters called on the House Judiciary Committee to eliminate the compulsory license, recognizing that it violated basic principles of copyright policy and was a deviation from music licensing norms in the rest of the world.²²⁵ Traditional economic assumptions would strongly suggest that, given the music copyright system’s intense reliance on mechanical licenses, high demand from licensees would compel licensing parties to reach a deal reflective of free market demand without obligating composition rights holders to license their work under a compulsory regime. In other areas of copyright law, the free-market forces are continually presumed to engender a successful equilibrium between incentive and access, and both here and in other licensing regimes, the blanket licensing scheme has compensated for other concerns by accounting for transaction costs.

Still, while copyright’s theoretical underpinnings may support such a change, it is widely accepted throughout the music industry that its abolition will never happen. The Copyright Office asserted that review of the compulsory licenses would be “premature” at this juncture and did not rule out the possibility somewhere down the line, should the implications of the MMA be more fully played out and the MLC prove a comprehensive alternative.²²⁶ However, throughout decades past, music industry players have voiced overpowering concerns that eliminating the compulsory license would cause “unnecessary disruptions” in the dynamics of the music industry.²²⁷ Even more critically, a vast majority of the music industry’s convoluted legal patchwork is owed to the outsized influence of vigorous and effective lobbying in Congress at the expense of copyright holders. Far too many players in the copyright landscape depend upon the compulsory mechanical license’s below-market rates, and lobbying forces at record labels, DSPs, radio stations, and beyond will likely ensure that this reality never comes to fruition.²²⁸

C. Songwriters’ Continued Plight Post-MMA

Despite the MLC’s relative successes thus far, the MMA’s fundamental flaw may be that it fixed the glaring problem of untenably burdensome transaction costs without addressing the looming, more existential incentive problem, which lies at the very core of copyright policy. In many ways, the distressing pre-MMA stories and statistics about songwriters explored in this Note have carried into the present day. As Grammy-nominated songwriter Erika Nuri Taylor told the Washington Post in 2023, “I got my real estate license [three years ago] because I thought I’m not going to be able to sustain being a creative person, a songwriter, for the next 10 to 15 years if nothing changes in the music industry.”²²⁹ Taylor, who has written for the likes of Enrique Iglesias, Janelle Monáe, and Meghan Trainor and has been a professional songwriter since 1992, says that her royalty income has been cut in half over the past five years, even after the hopeful enactment of the MMA.²³⁰ Today, she reluctantly considers herself a full-time real estate agent, holding out hope that she can still write songs on the side despite it once being her entire career. Her testimony is just one of many that have persisted after the MMA’s enactment.

Many songwriters will continue to create for the love of it, seeing their art form as a “spiritual calling” for which they have made great sacrifices.²³¹ Perhaps this indicates that despite great financial pressures, the songwriter profession may evolve to become less reliant on copyright’s promise of financial remuneration and will continue to be driven by an intrinsic desire to create. Alternative theories of copyright address this objection, arguing that perhaps copyright ownership and its accompanying “incentives” to create actually play a very minimal role in motivating creative work.²³² However, even amidst these alternative considerations and the possibility that songwriters may still create outside the bounds of adequate copyright incentives, songwriters persistently indicate the impact that low royalty rates across both mechanical and public performance royalties have on songwriting as a profession beyond its persistence as an art form.²³³ Another songwriter cites that modern-day music no longer reflects the caliber of decades past because much talent is lost when many just “can’t afford to do it anymore.”²³⁴ In practice, modern copyright regimes serve as the foundation for entire creative industries; here, the music copyright system’s success dictates the success of the music industry as a whole, making it rather alarming when copyright laws fail to sustain their promise of a “fair return” for the class of creators upon which the music industry is built, resulting in the dying of one of the industry’s most integral professions.²³⁵

Notably, there are also some critical confounding variables at play in the songwriter’s plight beyond anything the drafters of the MMA could have predicted. Given that the CRB did not finalize the DSPs’ appeal of the Phonorecords III rates for 2018 to 2022 until August 2023, the MLC could not pay out royalties for that term without established rates; this ultimately delayed the full payment of an additional $700 to 800 million in streaming royalties over the past five years.²³⁶ From the rights holders’ perspective, even while their royalties may have been increasing on paper since 2018, in reality, they have seen no such improvement in their financial circumstances, as their payments have been frozen at 2017 rates well into 2023. Many in the industry felt the arduous appeal process was disastrous for the publishing and songwriter economy, and Phonorecords IV ended in a settlement in large part because music publishers were adamant about avoiding the impossibly burdensome costs of litigation and further wreckage it could cause for songwriters and publishers.

Until composition rights holders receive full payment from Phonorecords III and routine payments on Phonorecords IV, it is hard to judge the potential adequacy of Phonorecord IV rates that arise from the MMA’s new rate standard or, more generally, how effective the financial incentives are for songwriters within the current copyright licensing system. Further, as suggested by the Copyright Office, it may take several more years for the MMA’s efficacy to come into full view, as both the MLC works toward achieving its envisioned efficiency and the willing buyer–willing seller gets tested in the Phonorecords V CRB proceeding.

CONCLUSION

In June 2023, the U.S. House of Representatives marked the MMA’s impending five-year anniversary with a House Judiciary hearing in Nashville, reopening a conversation with representatives from across the music industry about the law’s realized impact since its implementation in 2018.²³⁷ As discussion resumes on Capitol Hill, there is a renewed opportunity to reflect on the underlying objectives of a music copyright system and whether Title I has brought the current legal regime closer to those aims. Sustained conversation on these issues is more pressing than ever, as many in the music industry fear disruptive impact of artificial intelligence on a system already in slow rehabilitation from the shift to the digital age.

In taking stock of the industry’s current position, Title I of the MMA represents a major success in many ways. Its actualization was made possible by an unprecedented will within the music industry, with often opposing parties rallying behind the conviction that the music copyright system urgently needed to change. Title I of the MMA has pulled the industry from the brink of crisis, effectively eliminating untenable transaction costs that left an antiquated licensing system nearly non-functional.

In other ways, however, Title I also represents a band-aid solution to a crisis that boiled over in a fragmented legal scheme—a consequence of years of balkanized laws and decision-making heavily influenced by lobbying forces rather than fully reasoned policy. The industry’s united front may have emerged not from a desire to affirm value of the copyright system or artists’ creative works, but merely from the recognition that there was no other way out beyond a legal solution. As a result, Title I of the MMA has achieved relatively marginal results for one of its central aspirations and one of the industry’s most looming concerns—the hollowing out of the songwriting profession. The plight of the songwriter thus remains one of the music industry’s most fundamental yet unanswered problems in the digital age.

98 S. Cal. L. Rev. 205

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Tara Steinmetz*

* Articles Editor, Southern California Law Review, Volume 98; J.D. 2025, University of Southern California Gould School of Law; B.A. 2020, University of California, Los Angeles. Thank you to my advisors, Professors Jonathan Barnett and Emio Zizza, for their support and guidance, and to the members of the Southern California Law Review for their hard work and thoughtful suggestions on my Note.

Crushing Creativity: The Blurred Lines Case and Its Aftermath

February 2019February 2024Edwin F. McPherson

From Volume 92, Postscript (February 2018)
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CRUSHING CREATIVITY: THE BLURRED LINES CASE AND ITS AFTERMATH [*]

EDWIN F. MCPHERSON [†]

On March 10, 2015, the music world was stunned when a jury in Federal District Court in Los Angeles rendered a verdict in favor of the heirs of Marvin Gaye against Pharrell Williams and Robin Thicke, who, along with rapper Clifford Harris, Jr., professionally known as “T.I.,” wrote the 2013 mega-hit song entitled “Blurred Lines.” The eight-member jury unanimously found that Williams and Thicke had infringed the copyright to Marvin Gaye’s “Got To Give It Up.”[1] On appeal, the Ninth Circuit Court of Appeals affirmed the verdict and recently rejected Williams and Thicke’s Petition for Rehearing en banc.

The case is significant for a number of reasons. In typical music copyright cases—at least successful ones—the two works share the same (or at least a similar) sequence of pitches, with the same (or at least similar) rhythms, set to the same chords. The Blurred Lines Case [DB1]was unique, in that the two works at issue did not have similar melodies; the two songs did not even share a single melodic phrase. In fact, the two works did not have a sequence of even two chords played in the same order, for the same duration. They had entirely different song structures (meaning how and where the verse, chorus, etc. are placed in the song) and did not share any lyrics whatsoever.

The verdict in this case—assuming (perhaps naively) that it was based upon the music at all,[2] and not, for example, the jury’s dislike for Robin Thicke and his admitted drug use—was no doubt based upon a perception that the overall “feel” or “groove” of the two works is similar, as songs of a particular genre often are. In essence, Williams and Thicke have been found liable for the infringement of an idea, or a series of ideas, and not for the tangible expression of those ideas, which is antithetical to Section 102(b) of the Copyright Act.[3] Such a result is very dangerous to the music community and is certain to stifle future creativity.

All music shares inspiration from prior musical works, especially within a particular musical genre. The import of the Blurred Lines Case is, therefore, that songwriters can now be punished for creating new music that is merely inspired by prior works. By eliminating any meaningful standard for drawing the line between permissible inspiration and unlawful copying, the verdict is certain not only to impede the creative process and stifle future creativity, it ultimately does a disservice to past songwriters as well and adversely affects the entire music industry. The law, and specifically the intent behind the Copyright Act, would be much better served if the courts could provide clearer rules so that songwriters could know when the line is crossed, or at least where the line is.

I. District Court’s Denial of Summary Judgment

Just prior to trial, the district court denied Williams and Thicke’s motion for summary judgment based upon the declarations of two musicologists submitted by the Gayes, which were filled with abstract theories, identifying certain remote, seemingly unrelated, factors of alleged similarity.[4] The court dismissed—simply as “issues of fact”—the multitude of dissimilarities in the two works that were identified by Williams and Thicke’s musicologist—including distinct, material differences in the actual melodies of the two songs.

Because “Got to Give it Up” was a pre-1978 composition and was recorded prior to 1972, the Court properly limited the Gayes’ proof to include only the deposit copy of the sheet music that was presented to the U.S. Copyright Office upon registration by Marvin Gaye’s publisher and did not allow the jury to hear the entire sound recording. However, immediately following this ruling, the court systematically and completely emasculated the ruling in the following significant ways:

After the court had ruled on summary judgment that “Theme X” (a four-note melody) was not on the deposit copy, the court allowed the Gayes’ musicologist to testify that her “Theme X” was different from the court’s “Theme X,” and that her “Theme X” was implied [5] in the deposit copy (as was much of the music that was contained in the sound recording).
The court allowed the Gayes’ musicologist to further testify that although the keyboard part in “Got to Give it Up” similarly was not in the deposit copy, “professional musicians would understand [6]” to play the keyboard part as she transcribed it—and that keyboard part was the “heartbeat” of “Got to Give it Up.”
The court allowed the Gayes’ musicologist to use a transcription of the bass part from the sound recording that was different than the bass part on the deposit copy.
The court allowed the Gayes’ musicologist to use sound bites from both works to show a “total concept and feel,” while in actuality compounding the issue with an instruction to the jury to disregard the actual clips and only to consider the musicologist’s “opinions.”
The court allowed the Gayes’ musicologist to present a “mashup” of the two works, which was prepared after the close of expert discovery, and which included the bass and keyboard elements (that were not in the deposit copy)—while excluding mashups that were prepared by Williams and Thicke’s musicologist between “Got to Give it Up” and numerous old soul songs and many pop songs that could be played over the same four chords.
The court allowed a lay witness who was in charge of the Marvin Gaye catalogue at Marvin Gaye’s record label (which also happened to be Robin Thicke’s record label), who does not even know how to read music, to testify that he listened to “Blurred Lines,” and thought that it was similar to the “Got to Give it Up” sound recording.

At the same time, the district court excluded evidence that Marvin Gaye’s own publisher strongly believed that there was no infringement. One of the functions of a music publisher is to police the copyrights of the songs in its catalogue, to assess whether or not its songwriters’ music has been infringed, and to commence litigation against the infringers.

In this case, according to Marvin Gaye’s publisher, EMI/Jobete, as stated in the Joint Rule 16(b) Report, EMI/Jobete

first internally analyzed whether ‘Blurred Lines’ was an infringement of ‘Got To Give It Up’ and determined that there was no infringement. Thereafter, Jobete secured the opinion of an expert musicologist who similarly concluded that there was no basis for a claim of infringement. Jobete duly reported its determinations to Frankie and Nona Gaye’s representatives . . . . Further Jobete advised that it could not, in good faith, bring infringement claims (either for ‘Got To Give It Up’ or for ‘After The Dance’ [another song that the Gayes claimed was infringed by Williams and Thicke] because its analysis, including expert analysis confirmed that neither work had ben infringed by Blurred Lines . . . . Jobete advised that, consistent with Rule 11 of the Federal Rules of Civil Procedure, it therefore could not and would not either defend Frankie and Nona Gaye [in Williams and Thicke’s declaratory relief action] or pursue the infringement claim they demanded.[7]

Ultimately, the Gayes actually sued EMI/Jobete for not pursuing the infringement claim against Williams and Thicke.[8]

II. Infringement of An Idea, Which Is Not Copyrightable

It appears that the jury in this case was persuaded by a number of factors, including the foregoing similarities that were extraneous to the sheet music, interviews given by Robin Thicke, the number of musicologists that each side had (Gayes: two; Williams and Thicke: one), and the biased lay witness opinion. Not one of these factors had anything to do with any perceived similarity in pitch, rhythm, or chords, and not one of these factors constituted a proper basis for a finding of copyright infringement.

A result such as this, in which the melodies are not even close to being similar, is very dangerous, in that it does not distinguish between an idea and the expression of that idea, nor does it distinguish between the influence of a predecessor’s music and the unlawful copying of that music. The inherent danger of such a result is that, without drawing a proper line between what is an idea and what is an expression or between what is an influence and what is an infringement, future songwriters do not know whether their “influence” is going to land them with the next hit record or land them in court—or both, as demonstrated in this case.

Much has been said about Williams’s and Thicke’s apparent ability to afford to fund a case like this. Whether or not Williams and Thicke are able to afford to defend this case and pay a judgment, most of the musicians in the world are not in a position to do so. Clearly then, when a budding songwriter is contemplating the composition of a song, it is axiomatic that he or she is going to think twice before he or she writes a song that “feels” like a Marvin Gaye song or any other artist’s song, always with one foot in the recording studio and one foot in the courtroom. This is an untenable situation that most certainly will not foster uninhibited creativity.

III. The Ninth Circuit Decision

Devastated by the effect that the verdict would have on future songwriters and the music industry in general, Williams and Thicke appealed the case to the Ninth Circuit Court of Appeals. The Ninth Circuit—in a 2-1, very lengthy decision,[9] written by Judge Milan D. Smith Jr.—affirmed the bulk of the district court’s decision and ignored the cries of the 212 Amicus songwriters (and dissenting judge Jacqueline H. Nguyen). The majority asserted that its entire decision was about narrow procedural matters and concluded its decision by stating that: “[f]ar from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximize their odds of success.”[10]

At the heart of the appeal was the issue of whether the copyright protection enjoyed by the Gayes was limited to the sheet music of “Got to Give it Up” that was deposited with the U.S. Copyright Office, or whether the jury could hear the sound recording as well. Williams and Thicke had successfully argued to the district court that because the Gaye song was created under the Copyright Act of 1909, the jury should not get to hear the sound recording. The Gayes’ attorney argued at the district court and at the Ninth Circuit that their proof should not be so limited. On appeal, Williams and Thicke’s attorney argued that Judge Kronstadt erred by initially restricting the Gayes’ proof to the deposit copy but then allowing in bits and pieces of the sound recording through the testimony of the handsomely paid musicologist, Judith Finell.

The majority noted that Williams and Thicke’s position that the scope of the Gayes’ copyright was limited to the deposit copy did not appear to be specifically supported by any case law until the district court’s ruling. However, the court decided to avoid the issue altogether: “Nevertheless, because we do not remand the case for a new trial, we need not, and decline to, resolve this issue in this opinion.”[11]

The Court did affirm that the district court had discretion to allow testimony from both of the Gayes’ music experts, which Williams and Thicke’s lawyers claimed to have improperly incorporated opinions about the similarity of the sound recordings, notwithstanding its earlier limitation of proof to sheet music.

In response to Williams and Thicke’s assertion that Judge Kronstadt erroneously denied their motion for summary judgment, the appellate court determined that the denial of summary judgment, after a complete trial on the merits, is not reviewable unless the issue is one of pure law. The court determined that this was not such a case: “The district court’s application of the extrinsic test of similarity was a factbound inquiry far afield from decisions resolving ‘disputes about the substance and clarity of pre-existing law.’ The district court’s ruling bears little resemblance to legal issues we have reviewed pursuant to our exception.”[12]

With respect to Williams and Thicke’s claim that the district court should not have allowed certain portions of the testimony of the Gayes’ musicologists, the court pointed out that Finell “was impeached with her deposition testimony, in which she admitted that the rhythm of the keyboard parts in the sound recording of ‘Got To Give It Up’ is not notated in the deposit copy.”[13] The court further noted that Williams and Thicke’s expert disputed her testimony and that the whole thing “boiled down to a question of whose testimony to believe,” which was the purview of the jury.[14] Ultimately, the court ruled that the verdict was not against the clear weight of the evidence.

The Blurred Lines decision was indeed a procedural one and is on very narrow grounds. The court held that the jury’s verdict was not against the clear weight of evidence and refused to disturb or “second guess” the jury’s fact-finding at trial. The court concluded that the district court did not abuse its discretion in denying Williams and Thicke’s motion for a new trial.[15]

Even Williams and Thicke’s contention that the damages were excessive was met with a purely procedural response. The jury had awarded the Gayes 50% of the publishing revenue from “Blurred Lines” as actual damages, which amounted to approximately $3.2 million. The court ruled that the Gayes’ expert testimony in that regard was not speculative and, therefore, affirmed the amount. Similarly, the court determined that the jury’s verdict awarding profits to the Gayes of $1.8 Million against Robin Thicke and $375,000 against Williams was “not clearly erroneous,” nor was the continuing 50% royalty rate.[16]

The court did take exception to the district court’s treatment of T.I. and the Interscope parties, but that was on procedural grounds as well. The jury had rendered a general verdict in favor of T.I. and the Interscope parties, finding (albeit inconsistently) that neither had violated the Gayes’ copyright. The district court disregarded the jury’s verdict in that regard and brought them back into the case.

The Ninth Circuit ruled that the Gayes waived their challenge to the consistency of the jury’s verdict in this regard by not asserting their position at trial before the jury was discharged. The court went on, however, to rule that, even if the Gayes had properly preserved their challenge, “neither Federal Rule of Civil Procedure 50(b) nor our decisions in Westinghouse and El-Hakem v. BJY Inc. conferred authority on the district court to upset the jury’s verdicts in this case.”[17] The court further noted that “no evidence showed Harris was vicariously liable.”[18]

The majority, by focusing on the procedural aspects of the case, minimized the precedential value of the appeal itself, ignoring the potentially catastrophic ramifications of the case as a whole. This cavalier dismissal by the majority precipitated a blistering dissent by Judge Jacqueline Nguyen and an actual rebuttal to the dissent by the majority.

Judge Nguyen writes: “The majority allows the Gayes to accomplish what no one has before: copyright a musical style.”[19] She states further that: “‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”[20]

With respect to the expert musicologists, the dissent goes on:

While juries are entitled to rely on properly supported expert opinion in determining substantial similarity, experts must be able to articulate facts upon which their conclusions—and thus the jury’s findings—logically rely. Here, the Gayes’ expert, musicologist Judith Finell, cherry-picked brief snippets to opine that a “constellation” of individually unprotectable elements in both pieces of music made them substantially similar. That might be reasonable if the two constellations bore any resemblance. But Big and Little Dipper they are not. The only similarity between these “constellations” is that they’re both compositions of stars.[21]

Judge Nguyen then picks up on a theme that was forefront in the 212 Songwriters, etc. Amicus Brief, and that was that it is axiomatic that copyright laws do not protect ideas, but only the expression of ideas. In the Blurred Lines Case, the only similarities that exist between the two compositions is the “idea” of, for example, clapping hands, yells, different instruments, etc.

Judge Nguyen goes on to challenge the majority to explain which elements of “Got to Give It Up” were protectable. She also does not believe in the “sliding scale” of access vs. similarity, in other words, the more access can be proved, the less substantial the similarity that is required. The majority adopted the inverse ratio rule, which was designed for cases with limited access—essentially, the less likely the access, the more similarity that is necessary to prove “copying.”[22] Judge Nguyen does not believe that, with undisputed access, the extent of similarity necessary to fulfill a plaintiff’s burden of proof essentially dwindles down to nothing.[23]

In response, the majority strikes back, stating:

[T]he dissent prophesies that our decision will shake the foundations of copyright law, imperil the music industry, and stifle creativity. It even suggests that the Gayes’ victory will come back to haunt them, as the Gayes’ musical compositions may now be found to infringe any number of famous songs preceding them. Respectfully, these conjectures are unfounded hyperbole. Our decision does not grant license to copyright a musical style or “groove.” Nor does it upset the balance Congress struck between the freedom of artistic expression, on the one hand, and copyright protection of the fruits of that expression, on the other hand. Rather, our decision hinges on settled procedural principles and the limited nature of our appellate review, dictated by the particular posture of this case and controlling copyright law. Far from heralding the end of musical creativity as we know it, our decision, even construed broadly, reads more accurately as a cautionary tale for future trial counsel wishing to maximize their odds of success.[24]

A. The Denial of Rehearing En Banc

After their appeal to the Ninth Circuit failed, Williams and Thicke filed a petition for an en banc rehearing of the case. Judge Nguyen was the sole judicial proponent of en banc review, which was therefore denied.

IV. All Music Is InSpired By Other Music

From time immemorial, every songwriter, composer, and musician has been inspired by music that came before him or her. Even one of the musicologists for the Gayes admitted that, with respect to music: “All composers share devices and building.” This is especially so within a particular musical genre. Virtually no music can be said to be 100% new and original.

David Bowie was influenced by John Coltrane, Velvet Underground, and Shirley Bassey, among others.[25] Lady Gaga was influenced by David Bowie, Elton John, and Queen, among others.[26] Elton John was influenced by The Beatles, Bob Dylan, The Kinks, and Elvis Presley, among others.[27] The Beatles were influenced by Chuck Berry, Cliff Richard, The Beach Boys, and Elvis Presley.[28] Elvis Presley’s musical influences were “the pop and country music of the time, the gospel music he heard in church and at the all-night gospel sings he frequently attended, and the black R&B he absorbed on historic Beale Street as a Memphis teenager.”[29]

Marvin Gaye, himself, was reportedly influenced by Frank Sinatra, Smokey Robinson, Nat “King” Cole, Sam Cooke, Ray Charles, Bo Didley, and James Brown.[30] In fact, “Got To Give It Up” was apparently inspired by Johnnie Taylor’s song “Disco Lady.”[31]

One can only imagine what our music would have sounded like if David Bowie would have been afraid to draw from Shirley Bassie, or if the Beatles would have been afraid to draw from Chuck Berry, or if Elton John would have been afraid to draw from the Beatles, or if Elvis Presley would have been afraid to draw from his many influences. Presumably, it would also be difficult for the Gayes to imagine if their father had been afraid to draw from Ray Charles or Bo Didley. Quite simply, if an artist is not allowed to display his or her musical influences, for fear of legal reprisal, there is very little new music that is going to be created, particularly with the limitations that already naturally exist in songwriting.

V. Music Copyright Cases Need A Bright Line Test

In the world of film, television, and books, the universe of choices is unlimited. One can write about the past, the present, or the future; one can write about things that actually happened, things that one wished had happened, or things that could never happen—there is absolutely no limit beyond the author’s imagination.

Yet, notwithstanding those unlimited options, there is somewhat of a bright line test for infringement (and for obtaining summary judgment) in the film/television/book world that does not exist in the music world. With a film, an expert conducts the extrinsic test by comparing the plots, sequence of events, characters, theme, mood, and pace of the two works. The expert also filters out all of the scènes à faire, such as a car chase in an action movie or a magician pulling a rabbit out of a hat.

A motion for summary judgment in such cases will weed out the protectable elements from the unprotectable elements. It will then demonstrate how the works are different with respect to protectable elements, and how any perceived similarities are based upon commonplace, unprotectable elements. The “language” spoken by the experts is typically one that the judge understands and can articulate freely.

In music, unlike film, etc., however, there is a “limited number of notes and chords available to composers,” and composers are therefore much more restricted in their options.[32] There are literally twelve notes per octave, and not all of those notes can be used in the same song. As Judge Learned Hand once wrote: “It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.”[33]

Yet, notwithstanding the severe actual and practical limitation of choices in music cases, the line drawing that exists in film copyright cases does not appear to exist in music cases. Musicologists speak a language that is often foreign to judges (and juries), and therefore confuse judges into denying summary judgment motions whenever two musicologists disagree.[34] There appears to be no easy way, no bright line, to determine in music cases—and it was certainly not done in this case—the difference between creating the same “feel” or “style,”[35] and infringing a copyright.[36]

This is particularly so when a plaintiff can hire three, four, or five musicologists, conflict out three of them that find no similarities between any protectable elements, and know that, even if he only has one musicologist that can argue a case for infringement, he will avoid summary judgment. This is exactly what happened in the Blurred Lines Case. There were two or three musicologists that were initially consulted, rendered strong opinions of non-infringement, and ultimately were conflicted out of the case.[37]

VI. Copyright Law Should Stimulate, Not Stifle, Creativity

The “ultimate aim” of the Copyright Act is “to stimulate artistic creativity for the general public good,” and most musicians applaud and appreciate that endeavor.[38] However, they also understand that, like the music that was created before them, their own music will serve as building blocks for future songwriters, who will create their own music. As discussed in Fogerty v. Fantasy, Inc., “copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.”[39]

As written by Peter Alhadeff and Shereen Cheong in the Berklee College of Music Music Business Journal, “The Lesson of Blurred Lines,” quoting an interview with Berklee College of Music professor, Dr. E. Michael Harrington: “If you’re not influenced by Marvin Gaye, there must be something wrong with you.”[40] The authors go on to write: “[h]e could just as well be talking about James Brown, Chuck Berry, the Beatles, or Michael Jackson—all of them a product of their own influences. Copyright law should make musical creativity flourish, not stifle.”[41]

Parker Higgins, director of copyright activism at the Electronic Frontier Foundation writes that

[w]hen we say a song “sounds like” a certain era, it’s because artists in that era were doing a lot of the same things—or, yes, copying each other. If copyright were to extend out past things like the melody to really cover the other parts that make up the “feel” of a song, there’s no way an era, or a city, or a movement could have a certain sound. Without that, we lose the next disco, the next Motown, the next batch of protest songs.[42]

Finally, as written by composer Ron Mendelsohn, owner of production music company Megatrax:

All musical works, indeed all creative works, are born from a spark of inspiration. It is essential for musicians and composers to be able to find this spark anywhere and everywhere without having to constantly look over their shoulders and worry about being sued. To extinguish this spark, to replace it with fear, is to stifle creativity and deprive society of the next generation of great artists and new music. And yes, artists should be able to talk freely about their sources of inspiration without having to worry about their exuberant proclamations being played back as damning evidence in a court of law.[43]

VII. The Celebration Of Influences Should Be Encouraged

Mendelsohn’s last point is an especially important one. In addition to the potential adverse impact that this case is certain to have on future songwriters, this case will have a lasting effect on past songwriters and musicians as well. Many interviews were played during the trial in which Pharrell Williams and Robin Thicke both expressed that they loved Marvin Gaye, and wanted, as an homage to him, to create a song that had the feel of “Got To Give It Up.” One might ask if there could possibly be a better legacy for a songwriter than to inspire other songwriters to write music and expressly pay homage to him or her for inspiring that music—publicly, on national television and elsewhere, keeping his name and his music alive for generations to come.

Yet there can be no doubt in this case that the jury was swayed, at least in part (arguably in large part), by hearing such interviews. Ultimately, the jury held Williams and Thicke liable for copyright infringement and rendered an award of several million dollars against them. It is difficult to imagine a songwriter that comes along after this case publicly affording any credit to any influence that he or she receives from any songwriter.

Conclusion

It is apparent that the denial of summary judgment and the ultimate verdict in this case were based upon an undeniable musical inspiration, the overall look and feel of the two works, and a series of random, coincidental, and unimportant alleged similarities between unprotectable elements in the sound recording of “Got To Give It Up” (random elements that were not in the “Got To Give It Up” deposit copy) and “Blurred Lines.”

Many important popular songs in the modern era would not exist today if they were subjected to the same scrutiny as “Blurred Lines” was in this case. This case, which was based upon such factors—with no similarities in melody, with virtually no similarities with the music notation on the actual deposit copy, and simply based on a “groove”—will clearly stifle future creativity, will undoubtedly diminish the legacies of past songwriters, and, without a doubt, is antithetical to the principals of the Copyright Act.

[*] *. This article was adapted from an amicus curiae brief that was filed by the author on behalf of 212 songwriters, composers, musicians, and producers, in connection with the appeal of the Blurred Lines Case to the Ninth Circuit Court of Appeals. See generally Williams v. Gaye, 885 F.3d 1150 (9th Cir. 2018) [hereinafter the Blurred Lines Case].

[†] †. Edwin F. McPherson is a partner at McPherson Rane LLP in Century City, California, specializing in entertainment litigation, intellectual property litigation, and crisis management. He attended much of the trial in the Blurred Lines Case, has given numerous lectures on the case, and submitted an amicus curiae brief to the Ninth Circuit on behalf of 212 songwriters, composers, musicians, and composers.

[1]. Though Williams and Thicke were both found liable for copyright infringement, T.I. was exonerated by the jury. Although the district court purported to overrule the jury and brought back in T.I. and the Interscope-related entities as defendants, the Ninth Circuit reversed that portion of the District Court’s judgment. The Blurred Lines Case, 885 F.3d at 1182–83.

[2]. In the two days in which the jury deliberated, they did not once listen to any of the music.

[3]. 17 U.S.C. § 102(b) (2018).

[4]. Those theories were difficult enough (if not impossible) for trained musicians to understand; it is difficult to imagine how the Court could possibly fully grasp their import.

[5]. Even to a person with no musical training, the concept of certain music being implied by certain other music sounds a bit suspect; however, to anyone with a modicum of musical training, this concept is absurd.

[6]. Similarly, this concept makes no musical sense whatsoever.

[7]. Joint Rule 16(b) Report at 5–6, Williams v. Bridgeport Music, Inc., LA CV13-06004 JAK (AGRx), 2016 U.S. Dist. LEXIS 193633.

[8]. This illustrates an important (perhaps rhetorical) question for the courts and the music world in general. If the executives at EMI/Jobete, whose job it is to assess copyright claims involving their songwriters, did not believe that “Blurred Lines” infringed “Got To Give It Up,” and if the expert musicologist that EMI/Jobete hired to assist it in that determination did not believe that “Blurred Lines” infringed “Got To Give It Up,” and if the lawyer that was hired by EMI/Jobete believed so strongly that there was no infringement that he advised EMI/Jobete that suing Williams and Thicke might very well be a violation of Rule 11, how in the world could a songwriter, with no experience policing copyrights, no experience as an expert musicologist, and no legal training, determine that his or her own song might be an infringement?

[9]. The Blurred Lines Case, 885 F.3d at 1183.

[10]. Id. at 1182.

[11]. Id. at 1165–66.

[12]. Id. at 1166–67 (citations omitted).

[13]. Id. at 1170.

[14]. Id.

[15]. Id. at 1172.

[16]. Id. at 1174.

[17]. Id. at 1175 (citing Westinghouse Elec. Corp. v. Gen. Circuit Breaker & Elec. Supply, Inc., 106 F.3d 894 (9th Cir. 1997) and El-Hakem v. BJY, Inc., 415 F.3d 1068 (9th Cir. 2005)).

[18]. Id.

[19]. Id. at 1183 (Nguyen, J., dissenting).

[20]. Id.

[21]. Id.

[22]. Although this rule makes sense in the context of proving “copying” (access plus substantial similarity), when there is limited or a low likelihood of access, it is absurd to suggest that, if access is 100% proved, no similarity whatsoever is necessary. Moreover, this “test” also ignores the requirement, independent of proof of copying, that protectable elements of the two works must be substantially similar in order to prove actual infringement through the extrinsic test. In other words, copying alone does not constitute infringement if the elements copied are not protectable. There must be substantial similarity in copyrightable expression. The inverse ratio rule is so controversial that, in an amended decision, the Ninth Circuit deleted the paragraph from its original opinion discussing the rule and its application. Compare The Blurred Lines Case, 885 F.3d at 1163, with Williams v. Gaye, 895 F.3d 1106, 1119 (9th Cir. 2018).

[23]. The inverse ratio analysis has been criticized and rejected in other jurisdictions. For instance, in Arc Music Corp. v. Lee, 296 F.2d 186, 188 (2d Cir. 1961), the Second Circuit ruled that access will not make up for a lack of similarity, “and an undue stress upon that one feature can only confuse and even conceal this basic requirement.”

[24]. The Blurred Lines Case, 885 F.3d at 1182 (majority opinion).

[25]. Commencement 1999, Berklee, https://www.berklee.edu/commencement/past (last visited Dec. 1, 2018).

[26]. Sam Stryker, Lady Gaga and the Glam Rock Men Who Inspire Her, Mic (Nov. 14, 2013), https://mic.com/articles/73263/lady-gaga-and-the-glam-rock-men-who-inspire-her#.YIo314rrY.

[27]. Neil McCormick, Leon Russell Interview for the Union with Elton John, Telegraph (Oct. 13, 2013), https://www.telegraph.co.uk/culture/music/rockandpopfeatures/8062253/Leon-Russell-interview-for-The-Union-with-Elton-John.html.

[28]. Ten Artists and Bands that Inspired the Beatles, Reader’s Digest U.K.,

https://www.readersdigest.co.uk/culture/music/ten-artists-and-bands-that-inspired-the-beatles
(last visited Jan. 16, 2019).

[29]. Elvis Presley Biography, Graceland, https://www.graceland.com/elvis/biography.aspx (last visited Dec. 1, 2018) .

[30]. Marvin Gaye Influences, Shmoop, https://www.shmoop.com/whats-going-on/influences
.html (last visited Jan. 16, 2019).

[31]. See generally Graham Betts, Motown Encyclopedia (2014).

[32]. Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2nd Cir. 1988).

[33]. Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 (2nd Cir. 1940) (per curiam).

[34]. What the Gayes’ musicologists did in this case to avoid summary judgment (and ultimately at trial) is the equivalent of an expert in a film case testifying that the word “destruction” was used four times in the first scene of one film and two times in the second scene of the second film. They might go on to say that the word “destruction” was followed by the words “of a house” in the first film, and “of a truck” in the second film, along with an explanation that “house” and “truck” both have five letters, and many trucks are parked at houses. Such testimony would be readily dismissed, if not laughed at, in a film case, and the motion for summary judgment granted. Unfortunately, the musical equivalent—which is essentially what occurred in this case—is not as easy to understand and dismiss.

[35]. Music law is further hampered by the Ninth Circuit’s intrinsic test, in which a lay jury is asked to determine the “total concept and feel” of the works in question. Such a test simply does not work in a music context. One might argue that virtually every disco song has the same “total concept and feel.” One could argue that every blues song or every rap song has the same “total concept and feel.” This notion is antithetical to the reality of musicians’ inspirations and borrowing and is entirely preventative of creativity.

[36]. Duke Law School music copyright law professor Jennifer Jenkins, after noting that “Got to Give It Up” was inspired by Johnnie Taylor’s song “Disco Lady,” writes that “Gaye cannot claim copyright over material that he himself borrowed.” As professor Jenkins further discusses: “Copyright only covers ‘original, creative expression.’ Anything Marvin Gaye copied directly from his Motown, funk, or disco predecessors is not ‘original’ and should be off the table.” She writes further: “In addition, copyright’s “scènes à faire” doctrine allows anyone to use the defining elements of a genre or style without infringing copyright, because these building blocks are ‘indispensible’ to creating within that genre . . . . Many of the musical elements common to ‘Blurred Lines’ and ‘Got To Give It Up’ fall into these unprotectable categories.” Jennifer Jenkins, The “Blurred Lines” of the Law, Ctr. for the Study of the Pub. Domain, https://law.duke.edu/cspd/blurredlines (last visited Nov. 1, 2018).

[37]. This is another practice that should be discontinued. Expert witnesses, if they are to maintain any credibility of non-bias whatsoever, should be allowed to testify for whatever side they agree with, and not be immediately conflicted out from testifying in favor of the second party/attorney that calls them just because they were second. The Court could also retain its own expert(s) pursuant to Rule 706 of the Federal Rules of Evidence.

[38]. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

[39]. Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994) (emphasis added).

[40]. Dr. Harrington has analyzed more than 230 of Marvin Gaye’s songs and uses his music in classes that he has taught. He agrees that the “groove” and “bounce” of the two works are similar, but is adamant that “[o]bjectively, there is NO protectable expression (melody, harmony, etc.) that has been copied by Thicke” and that “[t]here is no copying of copyrightable expression involving harmonies of the two songs. What is extremely close between the songs is the tempo . . . but tempo is not copyrightable.” Peter Alhadeff & Shereen Cheong, The Lesson of Blurred Lines, Music Bus. J. (Feb. 2016), http://www.thembj.org/2016/01/the-lesson-of-blurred-lines; see also Dr. E Michael Harrington, Good News for Robin, Katy & One Direction: Music Copyright Expert Says Nobody’s Ripping Off Anybody, E Michael Music (Aug. 19, 2013), http://www.emichaelmusic.com/good-news-for-robin-katy-one-direction-music-copyright-expert-says-nobodys-ripping-off-anybody.

[41]. Alhadeff & Cheong, supra note 40.

[42]. Adam Pasick, A Copyright Victory for Marvin Gaye’s Family Is Terrible for the Future of Music, Quartz (Mar. 10, 2015), https://qz.com/360126/a-copyright-victory-for-marvin-gayes-family-is-terrible-for-the-future-of-music.

[43]. Ron Mendelsohn, Will the “Blurred Lines” Decision “Stifle Creativity”?, Megatrax (Apr. 1, 2015), http://blogtrans.megatrax.com/will-the-blurred-lines-decision-stifle-creativity.

Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution – Note by David Nelson

January 2005January 2018Southern California Law Review Admin

From Volume 78, Number 2 (January 2005)
DOWNLOAD PDF

“We are at a moment in our history at which the terms of freedom and justice are up for grabs.” Every major innovation in the history of communications – the printing press, radio, telephone – saw a brief open period before the rules of its use were determined and alternatives were eliminated. “The Internet is in that space right now.”

The technology of the Internet has revolutionized communication and information distribution throughout the world. The direction of this revolution, however, will be determined in large part by how the law chooses to regulate this new medium.

Currently, one of the most important debates over the Internet involves the future of copyright law. The outcome of this debate will likely determine whether, as Stanford Law School Professor Paul Goldstein argues, property rights will extend “into every corner in which people derive enjoyment and value from literary and artistic works” with “a price tag attached to each use,” or whether, as Thomas Jefferson advised, ideas will “freely spread from one to another over the globe.”

This Note examines the issue of copyright as it pertains to recorded music and demonstrates that copyright protection for recorded music can no longer be justified as necessary for the promotion of artistic creation.

78_559

INTRODUCTION

I. BACKGROUND: GENERATIVE ARTIFICIAL INTELLIGENCE

A. How the Technology Works

B. Generative AI in the Music Context

C. Copyright Office on AI

II. LEGAL BACKGROUND: COPYRIGHT LAW

A. Requirements for Protection

B. Rights Conferred by Copyright Ownership

Reproduction Right

Adaptation Right

Distribution Right

C. Additional Music-Specific Considerations

1. Musical Composition Versus Sound Recordings

Licensing and Sampling

D. Copyright Infringement Actions

Ownership of a Valid Copyright

Copying

Fair Use Defense

III. APPLICATION AND ANALYSIS

A. Sample Song A

Factual Copying

Legal Copying

B. Sample Song B

Factual Copying

i. Extrinsic-Intrinsic Test

ii. Ordinary Observer Test

iii. Fragmented Literal Similarity Test

The Sound Recording

Fair Use Defense

IV. POLICY IMPLICATIONS

CONCLUSION

98 S. Cal. L. Rev. 663

INTRODUCTION

I. THE MUSIC COPYRIGHT LANDSCAPE

A. Mechanics of Music Copyright

1. Copyright Basics

2. Understanding the Compulsory Mechanical License

B. Complicating the Picture: The Rise of Streaming

C. The Underlying Theory: Access, Incentives, and Transaction Costs

1. Balancing Incentive and Access

2. Reducing Transaction Costs

D. Framing the Issue: Where Are We Before the MMA?

1. Compulsory Mechanical License Causes Drastic Disincentive

2. Compulsory Mechanical License Overflows with Transaction Costs

II. SHIFTS UNDER TITLE I OF THE MUSIC MODERNIZATION ACT

A. Addressing the Black Box Royalty Problem

1. The MMA’s Solution: Creating the MLC

2. Unfolding Reality: The MLC in Action

B. A New Regime for Royalty Rate Setting

1. The MMA’s Solution: A Willing Buyer–Willing Seller Rate

2. Unfolding Reality: Phonorecords IV Under a Willing Buyer–Willing Seller Rate

III. CONSIDERATIONS FOR THE FUTURE

A. Approaching the First MLC Five-Year Review

B. Reconsidering the Compulsory Mechanical License: Theoretical Shifts Versus Industry Realities

C. Songwriters’ Continued Plight Post-MMA

CONCLUSION

98 S. Cal. L. Rev. 205

From Volume 92, Postscript (February 2018) DOWNLOAD PDF

From Volume 78, Number 2 (January 2005) DOWNLOAD PDF

From Volume 92, Postscript (February 2018)
DOWNLOAD PDF

From Volume 78, Number 2 (January 2005)
DOWNLOAD PDF