AI copyright battles shake music and entertainment law

In Brief:

• AI sparks copyright disputes in music and entertainment law
• Recording companies sue firms over training on protected works
• Venues face new challenges with licensing and AI compositions
• Artists, lawyers, and lawmakers push for clearer AI rules

There may never be a market for performances where an IBM server takes center stage and plays a rock concert, but that doesn’t mean artificial intelligence isn’t already drawing attention from entertainment lawyers.

Before the pandemic, a Boston Consulting Group study found that the music industry alone contributed $21 billion to the New York economy, supporting 57,500 jobs and generating billions of dollars in wages. That’s not including television production or live shows in Nassau and Suffolk. With that much on the line, the stakes are high for performers, songwriters and venues as technology rewrites the rules of creation and ownership.

Seth Berman, a partner at the Lake Success-based law firm Abrams Fensterman who practices entertainment law, says artificial intelligence has become a significant driver of disputes in the industry.

“There are a number of litigations and issues pending their way through the federal courts regarding fair use issues with AI and learning models, but also with what’s considered a creative work using AI, and who owns it,” Berman said.

“There are many new tools available to artists and creators that use artificial intelligence to either create or assist in…creative work,” he added. “Essentially, the U.S. Copyright Office has taken a position that works that have been purely created by AI—even if prompted by a human being—do not meet one of the threshold requirements of copyrightability, which is it being an original work.”

For songwriters and lyricists, the risk is clear. “Someone could prompt a model to give them a horn section that sounds like James Brown, or lyrics in the style of Bob Dylan,” Berman said. “Rather than licensing an existing work, people might just generate their own.” He likens the moment to the upheaval caused by Napster, when the courts struggled to draw the line between “file-sharing and stealing.”

While AI-generated music, video, or written content may not itself infringe on copyrighted works, several big recording companies have begun suing, arguing that the process behind it does.

In a lawsuit against AI firm Uncharted Labs, recording companies say the AI firm had already admitted to training its machine-learning models on protected sound recordings—works that comprise a significant share of what U.S. consumers listen to today, according to a motion filed in U.S. District Court for the Southern District of New York.

The upshot: They say that even if the final AI output doesn’t violate copyright, the AI firm cannot legally use their recordings as the foundation for creating something new.

But the legal issues, as well as technology, extend well beyond music—and have an impact on a new generation of “creators.”

Dan Lust, a sports and entertainment lawyer and counsel for the Garden City-based firm Moritt, Hock and Hamroff, notes, for example, that Major League Baseball continues to own the rights to all content. (Think back to those cautions during every televised ballgame, informing that using clips “without the expressed permission of Major League Baseball is prohibited.”)

“The leagues still own the rights,” Lust said. “But they also know clips can help grow the game. That push and pull—protect revenue or broaden exposure—has become a familiar balancing act.”

And that means content creators have a much bigger pool of video and audio content to use in building their own programming, cutting down on barriers to entry into entertainment streaming.

For local entertainment venues, the legal issues bear watching.

Rich Pawelczyk, a partner at the law firm Horn Wright, which has an office in Garden City, who has long-represented theaters and performance spaces, said licensing structures with organizations such as ASCAP, BMI and SESAC remain in place and workable.

“Those fees have not been deal breakers for venues continuing to operate,” Pawelczyk said. Performance rights groups, he added, know better than to drive venues out of business. “They know that if it’s too burdensome, the venue will throw in the towel, so the deals tend to strike a balance.”

Still, Pawelczyk says AI changes the equation. A venue could, in theory, sidestep musicians and licensing fees by relying on AI-generated compositions. However, he doubts it would catch on with the audience.

“Music is a visceral experience,” he said. “The live music business, notwithstanding the massive uptick in ticket prices…is doing very well. People still want that visceral experience.”

Communities from Huntington to Patchogue rely on music and performance venues not only for cultural life but for economic vitality. Pending lawsuits over the use of copyrighted work to train AI models could quickly ripple into local theaters and clubs.

For some performers and venues, the uncertainty means contracts now include specific language about AI, he said.

Others are pushing lawmakers or the Copyright Office to clarify rules. And many artists are left to decide whether they’ll embrace AI tools in their work or steer clear of them altogether.

What everyone seems to agree on is that artificial intelligence won’t replace live performance, but it will change the way content is created, licensed and sold. This means that copyright disputes, licensing frameworks,and rights negotiations are being tested in real time.

“The reality,” Berman said, “is that every wave of technological change brings both challenges and opportunities. AI is no different. But for artists and venues on Long Island, the legal questions it raises will define the industry’s future.”