Generative AI, Copyright Law, and Market for Digital Presence, Part 1

On 4th April, 2023 a song named “Heart on My Sleeve” featuring voices of Canadian musicians Drake and The Weeknd was released by Tiktok user ghostwriter977 on various streaming services such as Apple Music, Spotify and YouTube. A few days later Universal Music Group (UMG) requested major streaming services to take this song down. Why?

Drake and The Weeknd had no involvement in the production of this song at all. The audio of the song was produced using artificial intelligence and previous songs of these artists were used to train the AI model. Apparently, this was not an isolated incident. In April 2023, Drake reacted to an Instagram video featuring an AI-generated rendition of him covering Ice Spice's 2022 song "Munch (Feelin' U)." Similar AI-generated covers surfaced, including Rihanna performing Beyoncé's "Cuff It" (2022), Kanye West covering Plain White T's "Hey There Delilah" (2006), Freddie Mercury singing Michael Jackson's "Thriller" (1983), and Ariana Grande covering Drake's "Passionfruit" (2017). In response, Universal Music Group (UMG) urged Spotify and Apple Music to restrict AI companies from accessing its catalog.

The focus of this article (and the following articles) is not to discuss the ethics of these incidents but the legal implications and a possible economic opportunity that this particular application of AI, termed as deepfake or digital replication, brings.

You are not reading it wrong and the use of the word “opportunity” is not a typo. Deepfake technology presents a significant economic opportunity. Although it is often viewed today as a harmful innovation linked to fake celebrity pornography, online scams using fabricated videos or voices, and blackmail, its negative applications may overshadow the immense potential it offers.

In the following articles, we will explore the legal and economic complexities of digital replication. But first, let’s begin with a basic overview of the opportunities this technology presents.?

Consider a production house planning a high-budget movie. With the screenplay finalized, the next step is approaching potential cast members. However, casting is a time-consuming and labor-intensive process. Preferred actors may be busy with other commitments, unable to provide dates, or only available for a limited time. Meanwhile, movie production is costly, and delays can quickly escalate expenses.?

Is there any way through which the stars can be in the movie without physically being in the movies??

With deepfake or digital replication technology, this becomes possible. While it may not be necessary for the entire movie, it can be effectively used for specific scenes.

There are other aspects as well. AI can significantly simplify and reduce the cost of recording dangerous stunt scenes. Additionally, scenes that typically require international travel can be created virtually, eliminating the need to transport the entire cast and crew, thereby saving time and resources.

Now consider dubbing animation and translated movies. With digital replication, dubbing can be carried out without the actors being recorded for the whole movie. They probably have to record some scenes and the whole movie can be dubbed using those samples.

The point is that digital replication has an enormous opportunity to make digital media production easier, not only for movies. We are already witnessing the use of AI personas in news and marketing.?

But, our discussion here is not on AI-created artificial personas but rather on the use of AI to create a digital presence on real human beings. The legality and the economics of these two use cases are quite different. We will discuss details in the next articles but the primary difference is that the creation of artificial personas does not invoke impersonation and possible economic claims. Depending on the type of media the video may invoke other legal actions such as decency, propagation of false information, etc.?

The legality and economics of digital presence are primarily driven by the face value or credibility of the individuals being impersonated. However, this does not mean that a common person being impersonated should not trigger legal and economic liability. The last sentence is very important. Consider the movie production example again. Now, apart from the official cast, there are numerous people (extras) who appear in the movie. Should it be legally allowed to use the digital replicas of less recognized artists in movies as extras without obtaining permission from these artists or not compensating them? I hope not.??

Yes, licenses for digital replication for celebrities must be expensive and proportional to the credibility they bring to the project but the lesser-known artists also have “right to publicity”, a legal term coined by Second Circuit in the Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., case in 1953. The right of publicity covers the right over media presence of a person.?

The idea that everyone has legal and economic claim over their digital presence could help in building markets for digital presence.

We will discuss the intricacies in the later articles.??