Copyright law Archives - SHOPPE BLACK

Published on April 24, 2023April 25, 2023

8 mins read

Fake Drake: Exploring the Legal Risks of Using AI to Create Music

Every day, we are discovering the mind-blowing power of creating content using artificial intelligence (AI). Though exciting to many, there are risks associated with what we create and how we go about doing so using this groundbreaking technology. It is well-known that the law has often lagged behind the development of technology.

In many instances, we have to look to laws drafted decades before much of the technology we use today was created. Thus, the use of AI has spawned many unprecedented legal questions that we just don’t have clear answers to right now.

For example, last week, a creator by the name of Ghostwriter977 (Ghostwriter), set the internet ablaze when they released an allegedly AI-generated song entitled, “Heart on my Sleeve.” The song features vocals that sounded extremely similar to that of Toronto-born superstars, Drake and The Weeknd.

The song was released on many major streaming platforms, including Apple Music, Spotify, YouTube, Amazon, SoundCloud, Tidal, and TikTok. The song reached over 15 million plays before it was taken down in response to complaints from the artists’ publishing company, Universal Music Group (UMG).

Copyright

UMG argued the song was in violation of copyright law, however, it is unclear if this is actually true. Copyright ownership allows you the exclusive right to use and profit from creative works such as art, books, and music.

The United States Copyright Office only allows a copyright to attach to a creative work if there is human authorship. In this case, there is an argument that the content was generated by artificial intelligence, not by a human.

However, the question remains whether a compilation of the artists’ music was used to generate the sound-alike voices in the song, which may allow copyright ownership to attach.

Additionally, though the end product, the song recording itself, may have been generated by artificial intelligence, it was still prompted and potentially written by a human. And in that case, the lyrics of the song themselves, if originally developed by Ghostwriter, may actually belong to them.

There are some defenses to copyright infringement, such as fair use, which permits the unauthorized use of copyrighted material for the purpose of criticism, comment, news reporting, education, scholarship, or research. Ultimately, copyright issues of this novel nature are very subjective and would be determined in court.

Name, Image, and Likeness

The argument could be made that Ghostwriter violated the right of publicity of Drake and The Weeknd by creating a song featuring voices that sound like theirs without their permission. The right of publicity grants you a right to profit from your name, image, and likeness, including your voice.

However, there is a clear distinction between using a person’s actual voice versus a voice that only sounds like the person’s voice. The First Amendment allows one to imitate the sound of another even when they specifically intend to do so – think cover artists.

However, there may be an exception to this rule when the imitation is connected with the intent to sell a product. See Midler v. Ford, 849 F.2d 460, 463 (9th Cir. 1988).

If so, there may be a showing of a violation of a right of that person’s publicity. In Midler, the Ford Motor Company used a Bette Midler sound-alike to sing one of her songs to sell cars. In the case of “Heart on my Sleeve,” it is not clear if anything was actually sold in connection with the song.

We’d also have to know how much the Ghostwriter tried to connect the song to Drake and The Weeknd and whether Ghostwriter received or attempted to receive any compensation in exchange for the song via the streaming platforms. Without more information, it is difficult to say there is a publicity right violation in this instance.

Consumer Protection

Although a less sexy topic, “Heart on my Sleeve” may also violate consumer protection laws. The Federal Trade Commission (FTC) and state governments enforce laws that protect the public from deceptive or unfair business practices.

One may argue that the Ghostwriter used deceptive or unfair business practices to stream and popularize a song that misled consumers by using vocals that mimic Drake and The Weeknd.

We would likely have to determine the lengths the Ghostwriter took to connect the song to the artists; like if the artists were listed in the credits and if their imagery was used in the cover art on streaming platforms. The developer of the underlying AI technology that facilitated the creation of the song could also be liable under consumer protection laws.

The FTC may come after you if you make, sell, or use a tool that is effectively designed to deceive – even if that’s not its intended or sole purpose. The FTC warns developers of AI technology to consider how their products could be used to deceive consumers and mitigate the risks where possible.

However, this may be a stretch since it does not appear that consumers were actually led to consume anything other than listening and sharing the song.

As you can see, the law is not very clear when it comes to the issue of using AI-generated content that mimics a real person. These types of analyses are extremely fact-specific and require a full investigation to determine what laws are implicated, what types of damages should be attached, and ultimately who should be held liable.

There have been many lawsuits filed to address some of these unclear issues and we will be sure to update you when we have more answers.

— Contributed by Ashley Cloud

Ashley Cloud is the founder of The Cloud Law Firm, servicing creative entrepreneurs in all 50 states. Follow her on Instagram and TikTok for more information.

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. This website contains links to other third-party websites. Such links are only for the convenience of the reader, user or browser; Ashley N. Cloud and The Cloud Law Firm PLLC do not recommend or endorse the contents of the third-party sites.

Published on January 11, 2023January 11, 2023

8 mins read

From Afrochella to AfroFuture: 4 Lessons in Navigating Trademark Law

To celebrate the New Year, I journeyed from New York to Accra, Ghana for “Detty December”, a pilgrimage of Black people from all over the world to celebrate all things Black and beautiful through cultural events, sightseeing, eating good food, and lots and lots of partying.

When I tell you everyone was in Ghana this past month, I mean EVERYONE.

My girls and I checked out a popular hotspot called, “FrontBack” where we ‘casually’ partied alongside some of the greats like Jidenna, Masego, and none other than Wizkid, himself. We also grabbed dinner where we spotted Chance the Rapper and the extremely talented Michaela Coel.

The energy was so exhilarating that I watched the sun come up on more than one occasion while dancing to Afrobeats. To say we had a time is an understatement!

While in Accra, I attended Afrochella – a 2-day festival celebrating Africa’s diverse culture and the vibrant work of African creatives and entrepreneurs. The people were beautiful and the vibes were unmatched. There’s nothing like hearing your favorite Afrobeats and Ampiano artists singing and dancing to your favorite songs along with thousands of other beautiful Black people!

Although I was having an amazing time on my vacation, it’s often hard for me to turn off the “lawyer” in me and I caught a few things that had me thinking.

First, I noticed that there was a huge banner at the festival that stated, “Afrochella is…AfroFuture.” Then shortly after Burna Boy’s electric closeout performance, one of the showrunners thanked the crowd for their support and stated, “This will be the last Afrochella you will attend,” which left everyone a bit puzzled.

Then I remembered that Goldenvoice – the organizer of the Coachella Music Festival – filed a trademark infringement lawsuit in an attempt to block Afrochella from promoting its festival because it caused a “likelihood of confusion” with Coachella.

Upon hearing the news, I hoped that the parties would come to an amicable agreement that would allow Afrochella to continue the amazing work it has done for the African diaspora without going bankrupt with legal fees.

Thus, when I learned that Afrochella announced its official rebrand to “AfroFuture” and its commitment to continue producing amazing events in the name of African culture, I was relieved.

Though it is safe to say that Afrochella built an amazing brand in its own right, when the name of your brand can be considered “confusingly similar” to other brands that were in the marketplace before you, it is extremely risky business to proceed.

Here are a few lessons we can learn from the rebrand of Afrochella:

1. Conduct a Comprehensive Clearance Search BEFORE Launching Your Brand

The very first thing I ask my clients when they tell me the name of their brand is if they’ve done a search to make sure no one else already has their name. Before investing all of your time, energy, and money, make sure there is no one else that can stake a claim to your brand. And I’m not talking about a simple Google search. This search is best left to an attorney who understands the way intellectual property protection works.

2. Consider Rebranding Sooner than Later

If you conduct a comprehensive clearance search and find that there is another brand already using the name you chose for similar goods, it would be wise to consider rebranding before you’ve made those hefty investments we talked about. An alternative to rebranding would be to reach out to the brand owner and see if you can buy the brand from them. If you have the means to do so, then it’s worth a try.

3. OWN Your Brand

It may come as a surprise, but you don’t legally own your brand until you have a registered trademark that says so. A trademark is anything that you use to associate your brand with your goods or services. So, a trademark can be a word, slogan, tagline, hashtag, or even a color or smell. Once you register your trademark, you will receive a certificate from the federal government that states you are the exclusive owner of your trademark.

4. ENFORCE your Rights

Having your registered trademark will not, on its own, stop others from using your trademark for their own purposes. This is why you must monitor the market and make sure that you reach out to those who are using your trademark without your permission. Some websites and social media platforms even allow you to file a takedown request but only if you can show that you have a registered trademark.

Though I learned so much about my people and was reminded of how amazing and resilient we are while in Ghana, it was made clear to me how important it is for us to ensure that we own and protect what we create. At the end of the day, we are the culture and the culture must be protected at all costs.

by Ashley Cloud Esq.

Ashley is the founder of The Cloud Law Firm, servicing creative entrepreneurs in all 50 states. You can visit thecloudlawfirm.com or follow @thecloudlawfirm and @yourfashionattorney on Instagram for more information.

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. This website contains links to other third-party websites. Such links are only for the convenience of the reader, user or browser; Ashley N. Cloud and The Cloud Law Firm PLLC do not recommend or endorse the contents of the third-party sites.

Published on October 5, 2022October 9, 2022

1 min read

Attorney Talk: The Connection Between Intellectual Property & Social Justice

Sommer Blackman is an Attorney at Grant Attorneys at Law PLLC. Her practice areas include entertainment, trademark, and copyright law.

She is admitted to practice law in Ontario, Canada and admission is pending in New York.

Sommer grew up deeply immersed in music; she is a classically trained pianist and played the alto and tenor saxophones for 7 years. She also enjoys educating the community about their intellectual property rights.

In this episode, she shares:

The connection between intellectual property and social justice.
Notable past examples of exploitation of Black artists in America, the Caribbean, and Africa.
Some current intellectual property cases that she finds interesting.
IP trends she expects to influence the near future.
Best ways for creators to protect their IP on larger platforms.