Author: tonyjnrnwachi

Written By: Sharon Ayi

Award season is officially underway for the entertainment industry, with January having marked the announcement of nominations across the TV and film landscape. The annual red-carpet rollout from February to April for various events kicks off with the Grammy Awards presented by The Recording Academy, which sets the tone for subsequent ceremonies. Following this is the film industry’s Guild Award luncheons and the all-important BAFTA Film and Academy Awards (Oscars) ceremonies. This year proves to be no different and as the clapperboards are put to rest and the focus is turned to fine cut tuxedos and beautiful gowns, it is only right we delve into the some of the magic behind the silver screen and the world of biographical film.

Biographical films have long been of interest to avid movie-goers and the general viewing public for many decades. Whilst many of us would agree that the general notion or perception around ‘celebrity’ has changed over the years, the inquisitive nature into the lives and backgrounds of prominent figures on our screens and their presence in media continues to be a source of great interest and Captivating subject for many.

Paramount Pictures’ UK cinematic release of Bob Marley: One Love hit the theatre screens last week and films such as Rustin, Maestro & Oppenheimer with lead protagonists are steadily paving the way with nominations for the 2024 awards circuit.  This is not a coincidence for the Hollywood scene…. Over the years we have seen films such as Ali (Muhammad Ali), Walk The Line (Johnny Cash), Rocket Man (Elton John), Straight Outta Compton (NWA), Notorious (Notorious B.I.G), Ray (Ray Charles), Get On Up (James Brown), All Eyez On Me (2Pac), Selena (Selena), King Richard (Williams Family), Respect (Aretha Franklin), 8 Mile (Eminem) and more recent successes such as Bohemian Rhapsody (Queen) and Elvis (Elvis Presley) show just how successful such projects can be. The list goes on and is certainly not exclusive to musicians, movie stars or sports personalities as many will be familiar with films such as Paid in Full, Jobs (Steve Jobs), American Gangster, The Pursuit of Happyness,  House of Gucci, The Krays, Legend, Selma, Just Mercy, Vice, The Theory of Everything, ‘X’ and Hidden Figures.

By way of further expansion, we are also seeing biographical dramas being expanded into series formats, characterised by productions such as Narcos, Wu Tang: An American Saga, BMF, The Crown, Pistol, Godfather of Harlem which are drawing in a core audience of viewership figures for video on demand streaming platforms.  

It is no secret that media companies and film studios have capitalised on the opportunity to bring such stories to the masses with the aid of script writers, directors, screen treatment and some added red carpet stardust to give it the required Hollywood appeal.

Gathering data and researching information by way of interviews, personal accounts, documentaries, biographical books (authorised and non-authorised) as well as pictures and sometimes folklore assembled over the passing of time into big movie budgets has enabled global audiences to gain insight into the triumphs and challenges of public figures we’ve grown familiar with over the years and whilst many of these big screen projects are only a window into such lives, they have very much become a part of popular culture.

So, what are some of the legal aspects that need to be taken into account when bringing such stories to life? 

It stands to reason that rights clearance is a key part of the production process, bringing both the creative and business aspects together through the underlying principles of Intellectual Property.

Copyright (Right of Ownership)

In putting together such a project, the Producer must establish suitable rights of ownership or a chain of title to get the film off the ground. Sometimes referred to as rights acquisition, this will often take the form of an assignment or licence.  Typical avenues for discussion will explore areas such as where the source material is coming from and whether a clearance process has secured legal rights to depict the individual’s life or likeness.

In some instances the source material of a biopic will be based on direct accounts from the subject in question or in other circumstances serve as a follow up to an earlier article, documentary or book. In any instance permission must be sought to prevent legal issues in the future.

Rights in Performances

Actors andperformers consent to record and exploit their performances in the film/drama must be obtained by the production company.

Is the Actor or Performer an Equity member?  Is the project in question compliant with Part II of the Copyright, Designs and Patents Act 1988 (CDPA 1988)?

*Where a performer has an exclusive recording contract with a record label, the label’s consent should also be obtained.

Moral Rights

 Moral Rights exist as a special set of statutory rights under the CDPA 1988 which belong to authors of literary, dramatic, musical or artistic works and directors of film.

They include the right to give the author and director the right to be identified (Paternity Right) and the right to object to derogatory treatment of a work (Integrity Right). The right against false attribution (s84) and the right to privacy in respect of films and photographs (s85) must also be considered when approaching such projects.

Defamation

When delving into a film or drama involving real (living) individuals, the potential for a defamation claim should always be considered. It is important that the basis of the project is fair and factually correct. Whilst artistic licence allows for interpretation and creative freedom, it is essential to be mindful of presenting truthful and accurate information to avoid potential legal disputes.

Key considerations will include (1) the inclusion of allegations about subject individual(s) that may be defamatory or false, (2) careful use of private information which might constitute the misuse of information and (3) obtaining the necessary permission from the individual or their estate.

Other common clearances that will need to be sought include the use of any music, images, film excerpts and registered trademarks/products (i.e. sports brands, beverage manufacturers etc.) which require licence for such use as part of the screenplay

Where necessary, acquiring location permits and permissions are also part of the extensive checklist of prerequisites to be obtained in addition to Errors and Omissions Insurance.  This insurance policy serves as protection for filmed and/or recorded projects mitigating the financial consequences of professional errors stemming from negligence or a breach of contract.

It is important to recognize that the points listed above do not encompass all the legal aspects when bringing such cinematic projects to fruition. The specifics and the circumstances involved will vary depending on the project, particularly when it comes to indemnities and warranties. Legal counsel and advice should always be a priority when undertaking such projects to ensure thorough due diligence.

As we navigate the landscape of entertainment, the contrast between a heightened surge in reality TV (a separate conversation in and of itself) against the steady success of screenplay adaptations depicting real individuals prompts the question; Is Life Imitating Art or is Art Imitating Life?

No doubt the writers behind Black Mirror will probably let us know in due course but in the meantime the cameras will continue to roll, capturing moments in time and shaping box office successes, fueling the anticipation for award seasons and follow up budgets.

For enthusiasts of the biopic genre, you may have caught wind of the latest images and teaser trailers from the upcoming Amy Winehouse biopic, Back to Black produced by Studio Canal slated for release in April.  For the streaming platform aficionados, Netflix film ‘Shirley’ stars actress and director, Regina King as Shirley Chisolm, the first black woman to be elected to the United States Congress and reports around the Bob Dylan project, A Complete Unknown (rumored to be in pre-production) leave us wondering who will be next in line for a cinematic portrayal?

*Intellectual Property and Media Law Companion: Baden-Powell, Bleakley and Eneberi

Written By: Adriana Zahirovic with contribution from Sharon Ayi

Over the past five years, there has been a notable increase and upward surge in the purchase and sale of music catalogues with major music publishing companies (including the likes of Universal Music & Warner Chappell) and large scale investment funds  such as Hipgnosis, Kohlber Kravis Roberts (KKR) and Round Hill Music to name but a few, making waves on the scene through significant investments in music assets and IP. 

Recent multi-million dollar deals have sparked momentum, with various artists such as Dr. Dre, Future, Lil Wayne and Justin Timberlake securing  million  dollar pay cheques  for the sale of their catalogues. This article aims to give an overview of the buying and selling of music catalogues, the legal considerations and  a discussion into who benefits from the overall value exchange. 

What is a music catalogue? 

A music catalogue is a group of songs that are created and registered under an individual artist or entity, and once combined form what is recognised as a catalogue of songs. The owner of the catalogue owns the copyrights in the music and receives income generated in the form of royalties,  each time the music is  played and/or used. 

Usually, the copyrights to songs are divided among the parties who have worked on  creating the music. The performing artist or band, songwriters, publishers, record labels etc may all get a share of the rights and can add them to their respective music catalogue. The same song can be part of multiple different music catalogues and share earned royalties. artists/songwriters can also own 100% of the copyrights, collecting 100% of the royalties depending on the business model being used to exploit their music. 

What is being ‘sold’? 

When purchasing a catalogue, an investor is typically aiming to acquire the ‘music rights’, with a view to profit from the royalties earned via licensing, brand deals and other revenue streams usually enjoyed by the artist. Deal negotiations will vary across the board with some writers choosing to sell anywhere upwards from 50% to 70% of their catalogue allowing them to keep stock of their remaining catalogue or retain an element of control as to how the music is used. Earlier this year, it was reported that acclaimed producer, Dr Dre was in separate negotiations with Shamrock Holdings and Universal Music Group to sell a collection of his music assets for more than $200 million dollars. On the other side of the spectrum, David Bowie’s estate finalised the sale of the prolific singer’s publishing catalogue in 2022 for over $250 million dollars.

Written By: Sharon Ayi

For the past 50 years the culture of HipHop has transcended boundaries in more ways than one becoming one of the most popular music genres to travel worldwide whilst still keeping its core essence firmly on the ground. From its birthplace at 1520 Sedgwick Avenue in the South Bronx to the cultural revolution that it has now become, Hiphop has inspired a generation in various forms giving rise to an unprecedented number of businesses, moguls, executives, and sub-cultures. Some would even argue that Hiphop has profoundly influenced our perception of society, whether viewed through the lens of music or that of socio-politics.  

Now, whilst HipHop continues to evolve and inspire many of us who have been touched by its impact, it remains essential to recognise its foundational pillars: DJing, MCing, Breakdancing and Graffiti. These elements woven together by the common threads of music and community bring together a melting pot of people and culture. As Daymond John would put it, ‘For Us, By Us – FUBU.’

Origins

Widely recognised as the God-Father of HipHop, DJ Kool Herc grew in popularity in the Bronx area during the 70s due to his unique approach when ‘playing only the break sections of his records’ as part of his DJ set. He would layer copies of the same record on top of each other to create an extended break and loop this with other tracks  to create a melodic feeling and hardcore style that spoke to the crowds pulling up to his large sound system (a nod to his Jamaican roots and gathering of the community). This technique represented an early manifestation of what we recognise as Sampling. 

Mastering the turntables in such a way would go on to become one of the pivotal ways in which DJ’s would set themselves apart as the music laid bare to the energy and the soul that was being pushed by the youth in America at the time. DJs such as Grandmaster Flash, Jam Master Jay, Pete Rock, Jazzy Jeff, Kid Capri and a host of others would follow in Herc’s footsteps taking syncopated beats, scratches and soul funk melodies to the masses worldwide.

What is Sampling?

So what is sampling? There are various definitions associated with sampling but at its core, sampling (in music) is the reuse of audio from a pre-existing song (or other audio excerpt) into another musical piece.  From a creative perspective, it is an art form in and of itself which weaves its own story when creating an audio experience for the listener. Certainly, the debate between creativity and commerce often halts at a crossroad when the discourse involves copyright and ownership. The topic spans various aspects ranging from reinterpretations, remixes, interpolations and covers and is encapsulated by the saying, ‘where there is a hit, there is a writ.’

For the purposes of this paragraph, we focus on sampling and the approach taken in the UK. 

If you use a sample in a song or another recording (no matter how long (or short) the piece of music or excerpt is) you are required to seek clearance i.e. a licence. There is a right of copy within the sample that must be cleared and it is a two pronged approach i.e. copyright in the sound recording (owned by an artist or record company) and copyright in the song itself (owned by the songwriter/composer or the music publishing company). In the UK, the Performing Rights Society (PRS), the Mechanical-Copyright Protection Society (MCPS) and Phonographic Performance Limited (PPL) are organisations that both rightsholders and individuals seeking clearance for such samples should seek further guidance from when navigating sample clearances. PPL pay equitable remuneration to all performers who are legally entitled to receive such payments in respect of their performances on the sound recordings that PPL license. Additionally, PRS and MCPS independently compensate their members for use of their registered music through royalties. Depending on the sample being used, the involvement of  record labels and publishers (rightsholders) is often crucial and they will play an integral role in clearing the sample. This is especially true during the negotiation of fees and the share of royalties so it is important to seek legal advice from a qualified professional as early as possible.

Why Is Clearance Necessary?

Towards the end of the 80s, HipHop was moving to another level by way of development in technology and a broader approach to melodic sounds and frequencies. The next wave of artists and producers who had seen the b-boys dancing at the local parks and had grown up in and around the bold colours and calligraphy of graffiti were were entering their own creative realm and taking the concept of looping sections of music beyond just the turntables. The use of an Akai Midi Production Center (MPC) and a drum machine to bring another layer of life to records that were becoming hits on the charts would go on to become a staple piece in the studio for many HipHop producers through the years. Figures like J Dilla, RZA, Q-Tip, DJ Premier and Kanye West are among the many names recognised today that honed and refined their production skills alongside the use of these machines, fusing together different beats and sounds to rhymes. 

In 1988, Public Enemy’s single ‘Bring The Noise’ sampled Malcolm X’s “Fire & Fury Grass Roots Speech” demonstrating that the use of sampling wasn’t restricted to just music and could have more of a profound impact on the musical landscape as the culture continued to grow. The following year De La Soul’s debut album, 3 Feet High and Rising was released under Tommy Boy records and would later set precedent as to the dangers of not seeking out clearance for samples used. The album featured over 60 samples and whilst clearance was sought for many of the samples featured, the HipHop trio were faced with a lawsuit from rock band, The Turtles for the sampled use of ‘You Showed Me’ as part of the skit ‘Transmitting Live.’  Although it was only a short excerpt (12 seconds) of the song which was used, failure to clear the sample meant that this was a breach of copyright(s). Howard Kaylan and Mark Volman of The Turtles sued De La Soul and Prince Paul for 2.5 million dollars however the case was eventually settled out of court with reports claiming that damages were reduced to under 2 million dollars. 

Fun Fact: In 2020, 3 Feet High & Rising was ranked as one of the greatest albums of all time and as of this year (2023), the critically acclaimed album alongside other classic albums by the group including ‘Stakes Is High’ and ‘De La Soul is Dead’ has been made available on all streaming services. 

Biz Markie experienced similar fate when his single “Alone Again” sampled Gilbert O’Sullivan’s 1972 hit, “Alone Again (Naturally)” without clearance leading to a payment of $250,000 in damages to O’Sullivan and an injunction to prevent all further sales of Biz Markie’s single and the album upon which it featured. Known for his comedic persona as a rapper,  Markie would go on to name his follow up album in 1993 “All Samples Cleared” as a humorous reference to the copyright infringement lawsuit that he was involved in with O’ Sullivan.

Obtaining clearance is essential when incorporating samples from another person’s music as it is the process of obtaining legal rights to use intellectual property in another person’s work. With technology moving at an even faster rate than before in music creation,  discovering music and platform distribution, the industry must look at ways in which artistic integrity is maintained whilst facilitating the ongoing evolution of the art of sound in time.

Today HipHop stands as an unstoppable force – it is more than just music;  it is a lifestyle, a feeling, an emotion. It influences everything from runway fashion choices to the colloquialism that we use. Hiphop serves as a storytelling narrative depicting the realities faced along the way and also showcasing the ground-breaking achievements it has amassed over the years. From presidential campaigns to art gallery discussions, Hiphop permeates every aspect of society and is embraced by individuals of all genders and ages. When you see it, you know it and as we celebrate HipHop’s 50^th year, the phenomenon of what it is will continue to evolve and shift culture. The sense of culture, community and legacy  is ever present and continues to give rise to a new generation of artists that are adapting it to express their own voices. So, the next time you hear a Nile Rodgers riff or a drum pattern from the Funky Drummer, laced with a hard hitting beat and a drill music bass, you might just find yourself in the groove of a HipHop beat (and hopefully a cleared sample).

In this two-part article, we discuss the evolution of music consumption in relation to streaming and re-examine the way in which the law will have to adapt traditional principles in favour of a more balanced approach towards exploitation in a modern-day economy.

Digitalisation and technological change have profoundly influenced the evolution of the music industry. Streaming platforms offered a viable solution to the war against music piracy and illegal downloads from the likes of Limewire and Napster.  They combated this by providing consumers ongoing, legal access to vast catalogues of music as part of a subscription.[1] This has now become the dominant means of consuming music in the UK with ‘83% of consumer consumption of music via streaming in 2021, compared to just 3% in 2012.’[2] Despite this growing market, in 2020, 80% of musicians earnt less than £200 a year from streaming out of a sector which generated $4.4bn in revenue.[3] According to the International Federation of the Phonographic Industry (IFPI), the global music industry generated $21.5 billion in revenue in 2020, with streaming accounting for 62.1% of that revenue. This represents a 7.4% increase from the previous year, despite the impact of the COVID-19 pandemic on live music events.[4] This raises concerns about fair pay for musicians and performers in the industry. Under the Copyright, Design and Patents Act 1988[5] (CDPA) radio play in the UK gives rise to a right to equitable remuneration for musicians but a stream of that same song would not. Legislative intervention is required to restructure the law to reflect this change in the music industry.

What is equitable remuneration?

The right to equitable remuneration is a legal concept that relates to the compensation owed to creators for the use of their copyrighted works, such as music or literary works, by others. It is a right granted to authors, performers, and producers of sound recordings, and it requires that they receive fair and reasonable compensation for the use of their works, regardless of whether they have assigned or licensed their rights to third parties e.g. record labels. Historically, this has been particularly important in the context of radio play, where artists receive royalties for their music being played on the radio. However, with the rise of music streaming services, there has been a need to reform the right to equitable remuneration to enable streaming to be treated the same. This right is an important legal protection for creators, as it ensures that they receive fair compensation for the use of their works and helps to support their livelihoods.

The current law

Currently, under the Copyright, Design and Patents Act 1988, the right to equitable remuneration only applies to recordings played in public or communicated to the public via live streams and broadcasts, but not to music streamed on platforms such as Spotify, Apple Music, and YouTube. Musicians have the right to consent and prevent their music from being streamed altogether, but they cannot assign their right to equitable remuneration to anyone except a collecting society for the purpose of enabling it to enforce the right on his behalf e.g. The Performing Rights Society (PRS) for UK songwriters, composers and publishers.[6] This was implemented as a safeguard for musicians as traditional recording agreements typically require the performer to assign all copyright, performer’s property rights and all analogous rights ‘existing pursuant to the laws of any jurisdiction now and in the future existing in or in relation to the product of services of the artists rendered pursuant to the agreement’.[7] As music streaming is specifically excluded from this right, musicians are left to negotiate streaming remuneration as part of the commercial arrangement with their label.

The making available right

The making available right was made to capture streaming and is defined as ‘electronic transmission in such a way that members of the public may access the recording from a place and time individually chosen by them’.[8] At the time the right was implemented, iTunes had been newly introduced as a means to purchase and download music virtually. The making available right was put into effect to deal with this change in consumer behaviour and proved to do so effectively.

However, the legislation was designed to respond to the legal challenges which were posed by the internet in the 1990s. Since then, the vast change in technology has shifted the internet landscape thus causing structural changes in the music industry. There has been a rapid growth in the rise of digital content services and streaming that would not have been anticipated previously. Instead of buying singles and albums on iTunes, individuals are using on-demand music services for a monthly cost. The Competition and Markets Authority (CMA) reported in 2022 that the number of monthly active users of music streaming services between 2019 -2021 increased from 32 million to 39 million.  This doesn’t account for the reality of giving up remuneration rights where streaming has become the top revenue stream. By excluding the right, the adequate safeguards that were once in place are now outdated.

Radio vs streaming

The differing approaches to radio broadcasting and streaming create inconsistencies in the law. Streaming can be seen as a sophisticated version of radio for the new generation.[9] However the general rule is that if the transmission is interactive, it cannot be a broadcast.[10] The mere ability to select any song at any given time creates an interactive element which bars musicians from this protective right to equitable remuneration.  Record labels are relying on contract clauses conferring all ‘rights existing now or that come into the existence in the future’ to defend their assumption of ownership of the making available right, paying musicians the same royalty rate as that paid for a physical sale. There is logic behind this rule since equitable remuneration is a right given for the use of recordings in linear media, such as radio and television, while on-demand access to music is more comparable to the sale of sound recordings, which are better suited to receive royalty payments.[11] However, the sale of a digital download spares the record company the cost of making, storing, transporting, and distributing physical products yet the labels still insist that they should receive the same royalties as CD sales. It is not appropriate to categorize the definition of making available into either a sale or broadcast.  Streaming requires a clearer provision in the law to reflect the ongoing impact it has within the music industry. Without this, the legislation is not clear, leaving its interpretation open to argument and further questions as to whether creators are truly being compensated for their artistic works.

It is worth noting that over the course of the last few years, Musicians have been more vocal in their response to the current state of play across the music industry and what this means in real terms. Highly acclaimed songwriter, musician and performer Nile Rodgers gave evidence at the 2021 DCMS Inquiry into the economics of music streaming stating in a later interview that as musicians, ‘We don’t know what a stream is worth…there is no way you can find out what a stream is worth and that’s not a good relationship.’

Keep a look out for Part 2 next week as we discuss the intention behind the ‘making available’ right and its impact on performers working in the industry.

[1] Competitions and Market Authority, ‘Music and Streaming – Market Study Update’ (2022).

[2] Competitions and Market Authority, ‘BPI Submission to the CMA Music and Streaming Market Study Statement of Scope’ (2022).

[3] ‘8 out of 10 music creators earn less than £200 a year from streaming’ Ivors Academy News (7 December 2020).

[4] International Federation of the Phonographic Industry, ‘Global Music Report’ (2021)

[5] s.182D Copyright, Design and Patents Act 1988.

[6] s.182D(7) Copyright, Design and Patents Act 1988.

[7] Encyclopaedia of forms and precedents, Recording Agreement – short form, Entertainment and Media commentary, music industry documentation 15(1).

[8] s.182CA Copyright, Designs and Patents Act 1988.

[9] Horace Trubridge, ‘Safeguarding the income of musicians’ (WIPO Magazine, May 2015).

[10] Alexander Ross, ‘Implementation of the Copyright Harmonisation Directive in the United Kingdom’ [2004] ELR 15(2) 47-51.

[11] Ibid.

Written By: Lily Kalati

Written By: Ayo Adebajo

Use of artificial intelligence (AI) and machine learning is accelerating within society and across the media and entertainment space. Music is a key area within the latter in which this is evident. This article provides an overview of how AI music generators are affecting the music industry and the potential consequences under UK copyright law.

AI Music Generators

There is increasing interest and investment worldwide in AI music generation. Companies such as AudioShake, OpenAI, Splice, Stability AI, Dessa and BandLab have made significant developments in this space. Bytedance (TikTok’s parent company) acquired Jukedeck in 2019, a UK-based AI music start-up, Shutterstock acquired AI-driven music platform Amper Music in 2020 and HYBE recently acquired Supertone.

Utilising Lingyin Engine technology, Tencent Music in China has reportedly released over 1,000 songs with human-mimicking AI vocals, some synthetically recreating those of deceased artists. One track, titled “today”, is claimed to have surpassed 100 million streams!

In 2020, Jay-Z filed DMCA takedown notices against anonymous YouTuber, Vocal Synthesis, who created deepfakes of Jay-Z reciting William Shakespeare’s ‘Hamlet’ and a Billy Joel song. More recently, AI deepfake technology was used to create a posthumous track by Depzman, a grime artist from Birmingham who tragically passed away in 2013, called “Life Cut Short.”

(Holographic image of Depzman (Joshua Ribera) from Life Cut Short music video)

Elsewhere, last year GRM Daily reported FN Meka, a controversial AI-powered rapper that amassed over ten million followers on TikTok, as the first AI artist to be signed by a major record label (Capitol Records, distributed under Universal Music Group) before being dropped due to social backlash on stereotyping. This begs the question, how far are we from the likes of Stormzy, Adele, Dave or Ed Sheeran battling with AI artists for chart-topping singles?

(AI powered virtual rapper, FN Meka)

These instances of automation within music raise questions around whether AI music generators are capable of creating musical compositions that are protected by copyright,  whilst also infringing them.

AI Legal Authorship

The increasing prevalence of AI music generation is likely to have significant consequences on intellectual property (IP), especially copyright law. Whilst the requirements under copyright law are dependent on jurisdiction, the author of a work is generally the copyright owner, and this right is infringed upon if another entity copies and reproduces that work without consent or an adequate licence to do so.

Under English Law, the Copyright, Designs and Patents Act 1988 (the “Act”) delineates the requirements for authorship, copyright protection and infringement. A primary question in this area is: can AI or machines be authors for the purposes of copyright protection?

Within the UK legal framework, s9(3) of the Act indicates that where a literary, dramatic, musical or artistic work “is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” So, in instances of AI/computer-generated music (i.e., where there is no direct human author (s178)), the person(s) responsible for organising the AI systems may be deemed as the author. It is unclear how far back in the AI generative chain UK courts will go to identify such authors and the extent of originality required. Note that in other jurisdictions, computer-generated works may be unprotectable by copyright.

Copyright Protection and Infringement for Automated Music

UK person(s) responsible for arranging AI-generated music, such as programmers, may be considered authors of music even if they do not provide direct creative input into the musical process, but are these works protected by copyright?

For copyright to subsist in a musical work, it must be an original creation of minimum effort that has been recorded. The level of originality required for works to be protected by copyright law has been highly disputed across Europe (see the landmark Infopaq case) but the basic summary of the UK’s originality threshold is that the work in question must originate from the author’s independent skill, labour and judgement. In the absence of much case law, it is unclear how to apply this requirement to AI-generated works which has led to varied interpretations i.e. originality is required within the human author’s arrangement of the AI, originality of AI-generated works should be assessed objectively as if they were authored by humans, or whether AI-generated works are exempt from the requirement altogether. We await legal clarity as to  whether originality simply applies to the training and designing of AI systems, the music generated by AI, or if the threshold for originality is still applicable in this context.

AI-induced copyright infringement may occur under s16 of the Act, if the ‘whole or substantial part’ of an original musical work is reproduced by AI (perhaps by copying excessive data from existing tracks) without the licence of the copyright owner or an adequate legal exception. AI lacks legal personality and liability would be attributed to the acts or omissions of the relevant human individual or company, such as an AI developer.

AI Generated or Assisted Music

The use of AI to create music is highly complex and several parties may be involved, for example, those inputting data may be separate to those creating the AI system itself.

Copyright infringement lawsuits between human musicians can take years to conclude and so you can imagine the difficulty in getting a musicologist to prove that AI has copied a musical composition. How can we identify the original works and the copyright holders if AI combines, or is trained on, innumerable short extracts from existing songs to create a new single? Whilst the hypothetical questions on where AI music generation leaves the industry are endless, there is a critical distinction between two forms of AI outputs which underpins many of these quandaries:

• AI Generated Works – works created by AI without a human author;
• AI Assisted Works – works created by a human author using AI as a tool;

These two AI outputs can be easily conflated – and perhaps rightly so – because there is no clear distinction between them in practice. Is it the level or timing of human interaction that dictates whether a work is ‘AI-generated’ or ‘AI-assisted’? Is it even possible for works to be AI-generated in a pure sense, without any human involvement? AI is increasingly more than a “tool” for creating music, but this appears to be a sliding scale dependent on the use case. Where AI is clearly an assistive “tool” used by a human musician, the musician is recognised  as the ‘first owner’ and copyright holder of the protected musical work (s11(1) of the Act).

Research scientists and engineers generally agree that some level of human interaction is currently required in programming AI (at the very least at its inception), which further indicates that individuals or companies are ultimately liable for the infringing acts of AI. Liability may be shared where there are multiple parties, for example, involvement from AI software engineers and data programmers from different companies; however, greater legal clarity is required to establish exactly how liability for infringement should be apportioned.

Automation Outstripping Legislation

AI and machine learning is developing at a fast pace, leading to concerns that guidance and legislation has been outstripped by technological advances. The UK IPO (UK Intellectual Property Office) has provided a consultation to begin to address this. The body has also been reviewing the proposed new text and data mining (TDM) copyright exception, which would permit a third party with lawful access to a dataset to train AI on that data for commercial use.

Whilst considering the interests of stakeholders within the music industry, the UK could employ various solutions in the future e.g. substantively change legislation to directly cover AI, add AI-related exceptions to existing laws, rely on precedents from cases to clarify application of existing laws, rely on licensing to protect human authors whilst enabling AI-training on musical data with consent, or a combination of these.

The general consensus from stakeholders seems to be that updated regulation is required to deal with the complexity of AI, but opinions on the ideal form of such updates differ widely.

The Future of AI within Music

AI will continue to affect the music industry and challenge existing legal frameworks on ownership. There will be concerns that AI and machine learning could exacerbate music piracy, further saturate music streaming by generating innumerable tracks, as well as making human artists and producers redundant.

Creating music is often a collaborative process and so AI could simply become a more prominent part of this chain, rather than replacing humans altogether. However, the trajectory indicates that AI will be more than a “tool,” eventually generating music with minimal human involvement (or, depending on your definition, possibly none whatsoever).

How we regulate the use of AI within music, such as mimicking artists or sampling existing production, is an ongoing issue that requires updates in line with technology. Whilst some suggest that new legislation is required to deal with the novel impacts of AI, others argue that it is the application of existing legislation and licensing practices that requires further delineation. What is clear is that the increasing use of AI will have substantial consequences on copyright protection. Whether your favourite artists and producers will be replaced by dystopian AI remains to be seen!

As we fully gear ourselves into 2023, we figured it would only be right to delve into some moments in Law and topical stories that shaped quite the narrative in the world of Media over the past 12 months from copyright action cases to libellous rulings that uncovered hidden truths behind social media handles. 2022 took us all on a wild ride that left many lessons in Law to be learned.

1. Sheeran v Chokri (Copyright Action Case)

Centering on the biggest selling single of 2017 in the UK & USA, the UK High Courts had the hefty task of assessing whether Shape Of You by Ed Sheeran,  had infringed copyright from an earlier piece of musical work created by the defendants, (Sami Chokri & Ross O’Donoghue).  As the Claimant in this case, Ed Sheeran sought a declaration from the courts to assert and confirm that ‘Shape Of You’ had not infringed any copyright work following a suspension of royalty payments from the Performing Rights Society (PRS). The defendants subsequent counterclaim stated that there was in fact a case for copyright infringement based on the similarity of songs, previous knowledge of the earlier song and previous performance of such activities by the artist. Following numerous statements and evidence presented by both parties including musicologists on both sides, the final ruling by the courts on the 6^th April 2022 held that Chokri and O’Donoghue had failed to satisfy the burden of establishing that copyright infringement had taken place and that the arguments relating to the ‘Oh Why/Oh I’ phrasing and hook were insufficient to support the case. For further analysis of this case and copyright law requirements, check out our previous article here.

2. Broadcasting In Crown Court Cases – New Ruling For 2022 Under The Crown Court (Recording And Broadcasting) Order 2020

July saw a reform in UK law which now allows UK broadcasters such as the BBC, ITN and Sky to broadcast sentencing remarks in Crown Court cases (such activity previously only done in the Supreme Court and Court of Appeal). The stipulations are such that permission will need to be sought from the deciding judge in each individual case prior to filming and if granted access, it is only the judge that will be filmed when making their sentencing remarks to protect the privacy of others i.e. court staff, victims, jurors and witnesses. Live Broadcasts will also incur a 10 second delay to ensure reporting restrictions are adhered to and copyright of content will be retained by the Ministry of Justice.

Further guidance states that ‘broadcasters must make footage publicly available online within one working day of the hearing on YouTube’ whilst taking into account that the contents of any broadcast must present sentencing remarks in ‘a fair and accurate way having regard to the overall content of the report/presentation and the context in which the broadcast is presented,’ so as to prevent bias.

3. Apple Acquisition Of UK Startup, AI Music

In a burgeoning world of Artificial Intelligence  as well as its demonstrable presence across the media and entertainment sector (did someone say Lensa?) we are seeing more big budget acquisitions taking up space in this machine learning space. It stands to reason that the world’s largest technology company in 2022 (according to Forbes 2022 Global 2000 Report) would make some head waves by buying London based, AI Music to hone in on research and development technology that can be used to generate tailor made music based on user interaction. A soundtrack for every mood, instance, emotion or environment you are in but with the Apple magic deep within the tech DNA. Some would argue that such a  is not too dissimilar from what we currently have in the audio streaming space but if the dawn of the iPod was anything to learn from by way  of historical success then who knows what Tim Cook and the team have in store for us for the near future?  As one of only two reported acqusitions that Apple made in 2022 (both UK startups) is this a signpost for what is to come in the future for Apple or maybe them taking a more cautious and diligent approach to Compettion Law/Antitrust issues?

4. Prince Harry Brings Libel Case against The Mail (Associated Newspapers Limited)

Depending on what was on your watchlist for 2022 (or who you were following on social media the past 12 months), you probably came across a documentary or two. First half of the year would have been ‘Jeen-Yuhs’ chronicling the rise of Kanye West as a Chicago native to worldwide music producer, second half of the year might have been ‘Harry and Meghan ’ the Duke and Duchess of Sussex. If you did catch the latter, you would have learnt a little more about the Duchess of Sussex’s copyright infringement and privacy case against the Mail on Sunday (ANL) during a three year legal battle. Following the Duchess’s win in the Court of Appeal case last year, the Duke (alongside celebrities and public figures) has also filed a claim against the Daily Mail (ANL) for invasion of privacy with claims that there had been misuse of private information and illegal methods of obtaining such information by way of accessing personal bank accounts, recording private phone calls and other illegal methods.

A hearing is set to take place in the first half of 2023 in which the courts will hear evidence and make a decision as to the outcome of such findings against the tabloid newspaper.

5. DCMS 2022 Report Into Online Influencer Culture – Influencer Culture: Lights, Camera, Inaction?

If the influencers are influencing the masses, then who is influencing the influencers and how is the online space being regulated and protected for users alike? A question within a question, but a small peek into the myriad of questions and answers within the 2022 Report that was published by the Digital, Culture, Media and Sport Committee.

At this point in the 21^st century, it is fair to say we are all (Adults and children alike) a tapped into social media in one way or another whether that be for professional or social use. In doing so, the strategy and acceleration  of promoting ‘brands, products or services with selected individuals’ has arguably become a woven thread within society rather than an anomaly with which we used to associate with celebrity stardom. The 69 page DCMS report discusses the progression of technical innovation in online influencer culture in addition to the need for advertisement regulation and measures required for child labour protection in the sector. It is a conversation which we should all be aware of – click here for a link to the report.

6. Vardy v Rooney (Wagatha Christie Trial)

Another top ranking lawsuit for Libel cases in 2022 which caught the media by storm and adapted into a two part drama for Channel 4.

Rebekah Vardy and Coleen Rooney came head to head in court last year following Rooney’s accusations that Vardy, wife of footballer Jamie Vardy was leaking private information about her to The Sun newspaper. Through her own efforts as a modern day Agatha Christie/Jessica Fletcher protagonist Coleen Rooney, wife to former footballer and now football manager Wayne Rooney, uncovered the truth using her Instagram account to uncover such suspicion and revealed that her mystery had been solved. So there was only one thing to do…..expose the culprit aka Rebekah Vardy on Twitter and Instagram (double whammy).

Fast forward to 2022, Vardy’s retaliation by way of attempting to sue Rooney in a Libel case resulted in a showdown trial with evidence presented from both sides. The courts ultimately found that ‘significant parts of (Vardy’s) evidence were not credible’ and that the allegations raised by Rooney were substantially true, particularly around evidence that was shared with the tabloid journalist revealing information that Rooney did not want to share publicly. The Public Interest defence was also dealt with briefly by the presiding Judge, Justice Steyn DBE stating that the defence had failed on this point as Rooney had not put the matter to Vardy prior to the publication of the post but that in this instance it did not affect the overall result of the case.

7. BFI National Lottery Audience Project Fund

The British Film Institute publish details in October of its £15million fund to support the UK exhibition and distribution sector to encourage wider audiences for UK independent film and extended reality/broader screen work.

As part of the BFI’s 10 year strategy to benefit the public and industry over the next decade, the organisation has stated there will be measures to support UK screen culture as the sector evolves over the coming years.

“The fund will make awards of between £20,000 and £200,000 depending on the scope and reach of the project, with an upper limit of £500,000 for projects of “exceptional scale and ambition,” – BFI

For further information about how the BFI is seeking to advance knowledge, programmes, National Lottery funding and leadership to build a diverse UK screen culture, click here.

8. Channel 4 Privatisation – To Be Or Not To Be? That Is The Question….

Earlier on in 2022, talks and conversations were being widely discussed around the possible privatisation of the state owned broadcaster. Proposed plans detailed its intention to increase  spending on TV shows commissioned by production companies outside of London and moving staff to regions such as Birmingham, Manchester and Glasgow. Further points in the proposal also covered plans towards a joint venture partnership with external investors moving the broadcaster to a fully commercially funded business model thus releasing funds back to the public purse as part of major purchase and the sale of its London headquarters. Following a majority pushback against privatisation as part of the government’s consultation, it has now been confirmed plans for privatisation have been terminated with  (Secretary of State for Digital, Culture, Media and Sport), Michelle Donelan stating that ‘there are better ways to secure C4C (Channel 4 Television) sustainability  and of the UK independent production sector.’

9. Damages &  Defamation – Eddie Hearn Files Case Against Youtuber, Jake Paul

A claim by Jake Paul that boxing judge, Glenn Feldman was paid by Matchroom Boxing to ‘score Anthony Joshua to win the fight’ in the much anticipated heavyweight word title rematch against Oleksandr Usyk in August has landed the popular YouTuber in hot water with Matchroom Boxing boss, Eddie Hearn.

Reports stated that a defamation claim was filed against Paul in New York by both Hearn and Feldman seeking damages in excess of $100m (That’s a lot of YouTube clicks!). Eddie Hearn in a seperate interview following Paul’s comments made the point that Paul had crossed the line in his interview and  accused Matchroom of ‘committing a crime of corruption.’ Hearn further stated that they had asked Paul to take back the comments which he had made, but this wasn’t done.

Is a settlement out of court likely to be on the cards for 2023? It doesn’t appear to be on a New Year’s resolution list for either side at this stage, but we shall be keeping our eyes peeled for any developments in the coming months.

10. Will Dua Lipa ‘Levitate’ Above Her Copyright Lawsuits?

We kicked off with Ed Sheeran so we’ll round off with Dua Lipa as a defendant in two music copyright lawsuits that were brought in 2022.  The superstar singer has been accused of plagiarising songs by Artikal Sound System and songwriters L Russel Brown and Sandy Linzer in her hit 2020 hit song, Levitating. The lawsuits filed in March 2022 speak to the similarities we have seen in copyright infringement cases in recent years (i.e. Blurred Lines (R.Thicke), Shape of You (E. Sheeran) and Good 4 U (O.Rodrigo ).

Is it an original work? Is there substantial similarity? Did the defendant have access to the plaintiff’s work?  These are some of the questions that the courts will ultimately have to rule on when coming to a decision if matters proceed to trial.

Dua Lipa’s lawyers claim that the singer has never heard of the songs that form the basis of the claim, Don Dablo and Wiggle and Giggle All Night (written by Brown and Linzer) and have requested that the lawsuit be dismissed.

Listen to the songs and let us know if you think this case deserves to go to trial.

by Author Sharon Ayi