Drake vs. Kendrick Lamar Proves AI Music Is Regulated

Culture

from the if-anything-it-may-be-too-regulated dept

In the last year, the Canadian rap artist Drake has embroiled himself in several high profile controversies involving AI-generated music. The ongoing saga underscores how existing laws apply to artificial intelligence, dispelling the myth that AI, including AI music, is unregulated.

In April 2023, TikTok user ghostwriter977 released “Heart on My Sleeve,” featuring AI-generated vocals of Drake and The Weeknd. The song went viral, racking up millions of listens. In response, Drake’s record label filed a takedown notice, and streaming services removed the song.

Bloomberg disparaged “Heart on My Sleeve” as “unregulated AI music, which has driven a wedge through multiple intellectual property rights.” In fact, intellectual property law clearly applies to AI-generated music. The current beef between Drake and Kendrick Lamar proves it.

This April, Drake released “Taylor Made Freestyle,” featuring AI-generated impersonations of Tupac and Snoop Dog. The irony was palpable. The following week, Tupac’s estate sent Drake a cease and desist letter alleging “unauthorized use of Tupac’s voice and personality” and “a flagrant violation of Tupac’s publicity and the estate’s legal rights.” Drake removed the song.

Intellectual property law and state law are at play in Drake’s ongoing AI feud. Last year, when internet users uploaded songs featuring AI-generated vocals of Drake, Universal Music Group used copyright law — specifically, the DMCA notice and takedown process — to remove the allegedly infringing content. Universal also contacted streaming platforms like Spotify and Apple, demanding the services block AI companies from scraping musical elements like melodies from copyrighted songs.

The AI content creators could have filed DMCA counter-notices contesting Universal’s copyright claims, perhaps arguing, for example, that “Heart on My Sleeve” is fair use. In response, to maintain the takedown, the label would have had to file a copyright infringement suit in court. But the creators did not contest, and the songs were removed.

A year later, Drake himself released an allegedly illegal AI-generated song, and Tupac’s estate threatened to sue. The estate invoked Tupac’s right of publicity, an IP right protecting against the misappropriation of a person’s likeness — in this case, the late rapper’s voice — for commercial benefit. Drake could have left the song up and forced the estate to litigate; instead, he removed it, probably at the behest of his lawyers. Meanwhile, Kendrick Lamar waived copyright claims on his diss tracks aimed at Drake, allowing content creators to monetize reaction videos and remixes.

Ultimately, the extent to which existing laws apply to AI music depends on the jurisdiction of the legal challenge. California, for example, has strict publicity rights favoring artists. Law Professor Mark Bartholomew indicated that Drake likely violated the law “because the rights holders [Tupac’s estate] are in California, and California has a pretty vigorous right to your identity in various forms that extends years after death.” But “if we were talking about a celebrity who is from a different state, we’d have a different analysis.”

How exactly an artist uses AI to craft a song is also relevant to the legal analysis, especially under copyright law. Copyright applies to both the melody and lyrics of a song. ghostwriter977, for example, declined to clarify which elements of “Heart on My Sleeve” were AI-generated versus self-written. Although the beat and lyrics appear original, the song featured a producer tag from Metro Boomin, which Universal considered an unauthorized sample.

Record labels would love to see more regulation of AI music. Last July, for example, UMG urged the Senate Judiciary Committee “to enact a federal Right of Publicity statute.” But stricter IP laws would hurt content creators, handing record labels yet another tool to squash creative, fair uses. If anything, Congress should consider legislation clarifying how the fair use doctrine applies to AI.

Unfortunately, Congress appears receptive to the labels’ pleas. Earlier this spring, Senator Thom Tillis (R-NC) opened his testimony before a Senate subcommittee on IP by playing Drake’s AI-Tupac verse. Tillis called for “legislation addressing the misuse of digital replicas” in order to ensure AI-generated music is “under control.”

Everything is under control. This April, just as last April, existing law was sufficient to resolve Drake’s AI-related legal disputes, providing concrete remedies despite relatively novel facts involving new technologies. The saga underscores the legal system’s ability to cleanly manage fact patterns involving AI. There may be gaps in the law, but the fact remains: AI music is already regulated.

Andy Jung is associate counsel at TechFreedom, a nonprofit, nonpartisan think tank focused on technology law and policy.

Filed Under: ai, ai regulation, copyright, drake, publicity rights, tupac