What does competition in the world of music look like without copyright? We may be on the cusp of finding out.
Over the summer Emanuel Maiberg published a story on 404 Media about Spotify publishing AI-Generated songs attributed to dead artists that have nothing do to with the artists. The story captures the dystopia of managing cultural data at scale, but also contains this interesting (to me) note about trying to track down the source of the not-from-the-artist songs:
There’s a copyright mark at the bottom of the Spotify page for the AI-generated “Together” from a company called Syntax Error.
Why is this interesting? Because, as things stand right now, AI generated works are not eligible for copyright protection. Anyone could download and repost an AI generated song on their own Spotify artist page without infringing on any copyright.
This may not matter very much for this particular song, but it isn’t hard to imagine a situation where multiple AI-powered artists are pumping out the hits. If that becomes a reality, anyone can copy RobotBand’s Robot Party Hit #1, post it to their own artist page (or youtube channel or tiktok account or whatever) and start monetizing it without infringing on copyright.
What could the originator of the song do? Maybe not that much.
Copyright?
If the song is AI generated, the human team that runs the original “artist” account can’t bring a copyright infringement claim. The song is not protected by copyright so it is in the public domain. That means no copyright infringement lawsuit, or even sending a DMCA takedown targeting the uploader. You don’t even need to pretend that you made the copy via psycho-acoustic simulation
Of course, the team may argue that the song is collaboratively written between them and AI, so the human contributed elements get copyright protection. That argument has had mixed success thus far, and is fairly fact-dependent. So I don’t want to dismiss the possibility out of hand, but that would pull the song outside the scope of this blog post.
Trademark?
I may not be infringing on any copyrights if I copy Robot Party Hit #1 and release it on my own Spotify artist page, but am I infringing on RobotBand’s trademark? There is a claim in trademark law called “reverse passing off” where you sell someone else’s goods under your own name. Is that happening here? Maybe? But the Supreme Court has been wary of attempts to use trademark to control things in the public domain.
Beyond that, the USPTO actually has a page all about trademarking band names. That page says that goods featuring musical recordings can be registered under International Class 009. But those registrations aren’t for the song itself. Some sounds can be registered as source identifiers (more examples from the USPTO) but, again, those sound marks are things like the NBC chimes - not a pop song.
DMCA (1201)?
What about a DMCA Section 1201 claim? That provision prevents circumventing technical protection measures (aka DRM) to access a work. I would probably need to circumvent a technical protection measure to download RobotBand’s song from Spotify in the first place. Could RobotBand bring a 1201 claim against me?
Nope. 1201’s prohibitions against circumventing a technological measure only apply to measures “that effectively control[] access to a work protected under this title,” which is to say a work that is protected by copyright law. The whole premise of this post is that the song is not protected by copyright law, so no 1201 problem.
ToS?
What about Spotify’s Terms of Service? Even if it does not violate Section 1201 or copyright law, downloading a song directly from Spotify likely violates its Terms of Service.
This could be a problem for the downloader, but it is also a problem for RobotBand. If the downloader is violating Spotify’s Terms of Service, that’s not something that RobotBand can deal with directly. Spotify could decide to sue the downloader for violating its ToS. It would not be so easy for RobotBand to do the same thing (although maybe they are a third party beneficiary with an enforceable interest)?
Payola?
This might be the most straightforward solution: if every Spotify artist can release Robot Party Hit #1, the most successful one might be the one who pays Spotify for the most prominent placement.
But even that raises some interesting questions about pricing. If the winning version of Robot Party Hit #1 could expect $1.00 in Spotify royalties, a competitive market would drive the amount an artist is willing to pay Spotify for that winning spot up to $0.99. Unless, of course, there were collateral ways to monetize being the most prominent source of Robot Party Hit #1. Or Spotify figured out that it was more profitable to just run the song under their own house band name. What would those ways look like? I’m not sure.
This is all very back-of-the-envelope stuff, and I have no idea how (or if) any of it will manifest. But it is an interesting thought experiment, and one that might play out in the real world before too long.
Feature image: Musician and Dog from the Smithsonian Open Access collection