Joey Stuckey 0:00

Welcome to Stuck on Sound. I'm your host, Joey Stuckey, and today's show is all about AI. Welcome to the program, and we have quite an interesting topic today, one that I'm really passionate about. Over the past year or so, uh AI has really come into its own. It's moving at a rapid pace, it's changing every day, and of course, in the entertainment industry, it's really the current disruptor. And uh one of the things that I don't know about AI is how it applies to intellectual property. But I have sourced two amazing folks to help us understand AI and the law, Alan Clark and Gavin Strooby. Gentlemen, welcome to the program. I appreciate being here.

SPEAKER_00 0:43

Thanks, Joey. Thank you for having us.

Joey Stuckey 0:45

Absolutely. So, so you know, there's there's so much to unpack here. And um and I I really feel like the the first piece of confusion uh is what is protected vis-a-vis copyright when you're using AI. And the big thing here is that there are a lot of people who were not traditionally part of the music space who are using AI to create songs. They're not they're not songwriters, they're not musicians even. Uh, so there's a lot of that going on. And then, of course, there's a lot of musicians that are using AI in various ways uh as a tool, sometimes for composition, sometimes for sound recording. So there's just so much going on with AI, and you know, the the question is uh how how do you protect intellectual property that's being created by artificial intelligence? Is that even a thing you can do? I know that, you know, um, with the recording academy, aka the Grammys, uh, there's a rule that no solely generated work using AI is admissible for an award. And sort of the scuttle butt going around all the chat rooms on the internet is that the Library of Congress and the government has something similar. But there's also uh people saying, well, if I use a certain percentage of AI, I can copyright that. And I was like, you know what, I'm tired of not knowing. Let me see what Alan says. So that's really the thing. I mean, because you know, at the end of the day, if you've chosen music as your career, you have to be able to monetize it. And so, you know, if you want to stay in the business, so what what is the what does the law say that you can protect and how does it look at intellectual property generated by AI?

SPEAKER_00 2:41

I think, Joey, one uh way to start out our discussion is just setting out what uh a copyright is and what a copyright protects, and that is uh an origin a copyright is an original work in fixed form. And when we talk about AI, I think the key word in that definition is original. And uh it copyright protects the expression of an idea, not the idea itself, not a title. Um, and it grants certain rights to the copyright holder, as you know, the copyright owner. But um there are issues uh when we talk about uh works that are created by AI, and when we talk about that, we're talking about generative AI, which is um uh the the type of artificial intelligence that uses machine learning um and databases to create what uh comes out as new or original content, like text or images or videos or music, as you said, uh based on the user prompts. And so the issue comes down to is that original content uh the same as an original work in fixed form and therefore protectable? Gavin, do you have any uh thoughts on uh this?

SPEAKER_03 4:09

Uh no, just that um it the the the biggest issue uh when AI comes into it really comes down to uh how much was created by the AI. Um and and and did the AI essentially it would the AI be the author uh of the work. That's what the the main question is going to be. Um I don't want to jump ahead too much, but but the Library of Congress has uh has hinted that um if a uh if if AI generated content is the result of a of a prompt, then depending on how much work was put in on gener on creating the prompt, then it may be copyrightable. Um but it's it's really it it gets a little metaphysical. You know, where did the creative spark come from? Did it come from the person or did it come from the machine? Um basic oh go ahead, sorry. And then that that that I think is gonna be where the where the inquiry where where the questions are gonna be headed.

SPEAKER_00 5:21

Um tagging on to that, the the basic starting point is that AI-generated works without human authorship generally can't be copyrighted. And that was uh Joey, you said you didn't mind if we got a little bit into the legalese here. Let's do it. But that was uh decided in a case that you may have heard of called Thaler versus Perlmutter in the uh back in 2023, not long ago, in federal court in Washington, D.C. And that uh that court reaffirmed what the copyright office had already said that AI-generated content in and of itself cannot receive copyright protection, but there's some exceptions, like what Gavin's talking about.

Joey Stuckey 6:07

So, I mean, for me, you know, as a music creator, um I I guess the question becomes you know, it if I mean I have a friend who is uh a very clever fellow, and you know, he thinks visually. Uh he's a great visual storyteller. And of course, as a blind person myself, that is not my bailiwick. Um and he created a piece of cover art for me for a single that I was gonna release. Um, and um uh uh he just had an idea and said, hey, you know, what do you think about this? If you want it, it's yours. And he used AI to generate it. And uh, you know, he he very specifically gave AI very specific prompts. You know, I want this, I want this, I want this, I want this, that kind of thing, and came up with an interesting cover. And of course, my first question was, who actually owns this thing? Can I use this? Can I not use it? But but I guess the question is, if if I understand correctly, we're saying that the potential to copyright a work uh would depend on how much originality or how much impact the human has on creating the work through the prompts. And my question is, how how does one prove that? Like, what would what would the vehicle look like to establish you know whether the prompts were sufficient or not?

SPEAKER_03 7:40

That's a very good question, and we will let you know when it's been decided.

Joey Stuckey 7:44

So is it is it a uh is it is it sort of this the same old story of we'll have to have a lawsuit to decide the law?

SPEAKER_03 7:52

Uh essentially. Uh I think some good advice to to artists who are using AI in as an assist is to save your work, um, save your prompts, um, document the process that you went through so that if you end up being that test case, that the information is there. Because what you want to I I promise I'm not going to entirely speak in cliches, but you have to establish that the AI is the brush, not the artist.

Joey Stuckey 8:25

No, I get it. And and that see, that seems more fair to me. Um, because I I I uh this is kind of this is kind of one of those things when when Nixon said I am not a crook, but he but he really was. Uh I I'm I am not a Luddite. I I am not against technology. Um I you know, I'm the I don't wanna I don't want to sabotage or anything like that. I think AI has some really amazing uh things that it can do. And as a blind person, I'm very interested in AI being to help me interface with visual content uh since I can't see. So I'm all about that. Um I'm I'm I'm less clear. I mean, if I like Waymo and want to get in a car that drives itself yet, um give it a couple more years and I'll hop in. But the but the thing is, I mean, some people on the internet, because I am I am I have been proselytizing a little bit. Uh I have been warning of some of the pitfalls of AI uh in the music sphere, and I have been just saying essentially that we need comprehensive federal legislation to put some guardrails around this technology. And I I've gotten a lot of grief for it. Uh and and so, but there are people that have said, well, the Library of Congress says uh if if there's a certain percentage of AIs being used, it can be copyrightable. Is that true? I have not seen that. Um, so I'm just trying to make sure that we have the truth out there.

SPEAKER_00 9:53

It's not uh uh there's not a given percentage, but what the copyright office has said that uh is is that the extent of the human involvement and the level of control that the human creators are exerting are big crucial factors to determine the copyrightability of the uh work that is AI assisted. But at the moment, we don't know what that really means, correct? In terms of a specific percentage, exactly. It's it's a blurry line.

Joey Stuckey 10:28

Yeah, yeah. So so how do you how would you go about if you were wanting to copyright your work uh uh and and there's you know some ambiguity in the law, um, and as as as Gavin rightly said, you know, save your prompts, be able to show what what brought you there. But what do you what do you think? And let's be clear, we're not your lawyer, and this is not legal advice. But but but but what what do you think would be the correct procedure? If you I mean, would you file, would you bother to file a copyright uh if you if it's AI generated or AI assisted? Uh I guess would be the way to think about it. Would you file a copyright at this time? Does it does it have any benefit?

SPEAKER_03 11:08

I mean, it it there's always a benefit to it. The um I mean the the wonderful thing about copyright in the US is that as soon as you create copyrightable work, it's copyrighted automatically. Right. Nothing has to be done. Um but you do need that registration to assert some of the most important rights under under the copyright law. Right. Um I I would suggest one of two avenues. Um based on what the the copyright office has said, um the the probably the the cleanest route would be to either register your prompt and then register the resulting work as a derivative work of your prompt. Uh, interesting. Um, or uh register the work as uh not for the art itself, but for the arrangement and selection of the elements that went into the art. For example, if you put in your prompt and you the AI gives you the result, and then you modify it and change it. So you're essentially selecting the elements that go into the finished work. Right. Um that that can be protected in and of itself. It's how websites get protected by by selecting and curating the elements. It's how phone books can be copyrighted, uh, by selecting what goes into the phone book. It it tends to be um I mean, copyrights are copyrights. They're they're they're they're very important protections to have, but a a you know, editing, arranging, and selecting style copyright can be seen as a little softer or weaker, since what you are protecting is the selection of the elements, not the elements themselves. I gotcha.

Joey Stuckey 12:59

Now, is there a is there a specific form that allows that that uh differentiation uh of selecting elements versus because I always use you know the SR form where I copyright the underlying work and this fixed sound recording. I mean, that's that's all I've ever used. Is there a specific form on there that allows you to sort of spell that out, or how does that work?

SPEAKER_03 13:19

Oh yeah, it's it's part of the the online submission form now. You but when you select the type of the type of work that you're that you are uh registering, and then you are absolutely going to get emails from the copyright office asking for additional detail.

Joey Stuckey 13:38

Okay, I gotcha. I gotcha. Well, that's great. I mean, so that's that's that's really fascinating. Um the um you know, one of the things that, and I hate to go too far afield, but I I do think this is cogent. You know, one of the things that I foresee uh uh being attempted uh is corporations um trying to own AI generated works. And um this this is as you guys remember, I'm sure the the fake artist scandal uh that happened with Spotify years ago, where essentially they uh hired a bunch of session players and said, you know, make music in the style of Jay-Z, and then um we're gonna own these rights, we're gonna own these copyrights. And and when when you listen to Jay-Z, we're gonna say, hey, you uh you may like these artists too, and we're gonna funnel them over to stuff that that we own so that fewer money has to go out of the company, or uh, you know, fewer payments has to go out of the company to to artists like myself. Um, you know, I mean, I I I just I wonder your thoughts on like corporations saying, well, we own the AI, therefore we own the work that it generates. Is that is that is that something that might happen?

SPEAKER_03 14:57

I mean, look, I mean, corporations try and own everything. Um it's it's gonna happen it just like just like corporations can can own other other copyrights. Yeah. Um and you know, it's it'll just involve having the the the person who's sitting in their cubicle putting in the prompts uh to be operating under a work for hire agreement or execute an assignment so that whatever they have goes on to the the corporation. Gotcha, gotcha.

Joey Stuckey 15:27

I mean that seems like you know the the kind of thing that that that uh you know there's there's a there's a lot of people in the sort of I guess you know the distribution uh business of streaming, you know, sort of the utility model of streaming and all that kind of stuff. And then and everything's utility model, right? I mean even the AIs are you know 20 bucks a month or whatever they are. Um and and so you know that that's that's where that's another question for me, you know, and and again, maybe this is too esoteric, but if I'm paying a subscription to use an AI, um, you know, I I just wanted, you know, I'm I'm wondering like what the uh what the the the the law would say uh would the company if the company owns the AI that I'm sort of renting, would they have the claim on my work? Would that be something that should happen?

SPEAKER_00 16:18

One thing I would say, just coming from the lawyer standpoint, is you have to read the fine print of the uh uh service that you're using in terms of what output, what you can do with the output and who owns the rights to the output.

Joey Stuckey 16:35

Um that's something that you should investigate prior to spending a lot of time using a certain service. Right, right. Because I mean, then we all we all you know, I mean, I have a phone uh that I use for for work, and uh if I don't accept the user agreement, I can't use the phone, and so I don't buy you know the user agreement's like 80 miles long. Right, right. Most of us skip and go agree and just keep moving because otherwise the phone doesn't work. So, but that's that's something we should probably not do then with the AI uh generated uh uh stuff.

SPEAKER_00 17:09

And if you have a question, my two cent plug for lawyers is you can always ask your contact your music lawyer or entertainment lawyer to uh confirm you know who can probably do a quick look at the contract and and weed through all the legalese to let you know what rights you're giving up.

Joey Stuckey 17:25

Yeah, that's that's a that's a really important point, I think, because um the uh I mean people say, Oh, I can't afford an entertainment attorney, and my response is you can't afford not to have an entertainment attorney. Um and you know, um I I really believe in that. And Alan, you know, you when we when we uh first started working together, um I knew you know I knew some things, but I I basically said to you, uh, I'm gonna pay you for several hours and uh teach me what I need to know so I can be on the lookout um when I when I you know get these contracts and stuff like that. Like what are some what are some red flags? You know, how does copyright really work? Uh and so you know we did that. And then later I went to Berkeley uh and started working on a uh you know towards my master's degree in music business. I got derailed for health reasons, never finished it. But uh so I I've been doing this a long time, I know a lot about it, and I still run everything by you.

SPEAKER_00 18:27

Well, you you uh certainly are one of the most educated and knowledgeable non-lawyers I work with for sure.

Joey Stuckey 18:36

Yeah, I but I mean I yeah, I I appreciate that. That's very that's very kind. But I just you know I just wanted to make sure everybody knows, like, you know, even though I eat, sleep, and breathe this stuff every day, if I had if I had you know a contract, uh, you know, I I would uh I always want to make sure that Alan looks at it and and you know he'll he'll definitely find something I've missed.

SPEAKER_00 18:57

Um one thing interesting about uh contracts is that they now address the use of AI. Um and and just like in the uh where you have to disclose in and copyright applications if any AI was used, um the creators of music, you know, if you if you enter into an agreement for distribution or recording, uh most of these contracts now require a warranty in their contracts that there was no use of AI. And there's typically indemnification, which is what you the the the $2 word that you really want to watch out for in contracts saying that if you uh make a false representation and uh the company ends up getting sued, that you're gonna indemnify the company for their losses and legal fees.

Joey Stuckey 19:51

So are you seeing are you seeing a a for lack of a better word, like corporate pushback or or uh on on artists using AI? Is that discouraged or are they just protecting themselves?

SPEAKER_00 20:06

Protecting themselves. Um, and and some are even uh monetizing it. I have, for example, a client that uh is licensing its, and I may be getting a step ahead of in our discussion, but they're licensing their music that they own the rights to uh to be uh used uh in uh AI training. So so they they have contracts that that grant um rights to their music to third parties, allowing them to uh to use it and you know get paid for it. So it's legal.

Joey Stuckey 20:43

Well, I think that's a perfect segue, actually, to our next point, because the training is the whole thing. I mean, and and it's uh the problem from my perspective uh as an artist uh and producer and recording engineer, blah, blah, you know, it's there's not a lot of clarity or or or just you know really good access to how these companies are scraping the data. Um it's it's it's rather opaque. Um, you know, it it's just there's not a lot of transparency involved in in how much you know where they're getting the data from and how much they're using. And uh, you know, I of course um feel like if you use if you use my music to train your your AI, uh I should get some kind of compensation for that. And um the uh you know kind of the thing that I think about is there was a there was a person on Facebook. Generally, Joey does not waste time responding to weird comments uh or negative comments. But but this one I felt was was uh really you know out in left field, and I felt like I wanted to answer. And and what the comment was. Was you know, why are you worried about getting money from your music being used uh by AI to train it? You have gotten for free uh uh all your influences. If you listen to the Beatles, uh then you have you have stolen from the Beatles and you're not paying them. And my response uh to that was essentially, well, you couldn't be more wrong because uh I I bought the album that I of the Beatles album that I wanted, so I paid for that. I uh I went to music school, so I paid for that. Um I I also, even on the radio, where I'm not directly paying the radio, I am being marketed to. So the radio station is making money, then the artists are making money, so I paid for that. So every everything I've ever gotten from an artist, I have paid for in some form or fashion. And that's of course, mostly the more important point, really, is that I'm a living, breathing human being, and uh AI is not. But but uh I wonder, you know, what we I'd like to talk about the whole process of scraping. And as as you as you guys are well aware, there's no, or at least uh to my knowledge, there's no comprehensive federal legislation that addresses this. Uh there's the Elvis Act that Tennessee's passed, uh, which really is more of a likeness thing. I mean, you know, it it doesn't really speak to the whole to the whole uh proposition of scraping data. But what do you what do you think? How do how do we determine, you know, how the artist should be paid, uh, if if they should be paid, how the company should approach you know their training? And what's what's what's the what's the universe look like in that in that reality?

SPEAKER_00 23:48

Well, it's a balance, uh, and and there's uh two different sides uh to the uh equation here. One is the the rights of the underlying IP owner uh whose work is being used for the training. Um and then there's the the AI developers that claim that it's what they're doing with the underlying works is transformative. Um so what these cases that are coming out all the time now are looking at doing is trying to balance those two different sides and make sure there's compensation for the the owners who are providing the data used to uh train the AI.

Joey Stuckey 24:39

Yeah, and I mean is there a mechanism in place or do we need some sort of clearinghouse or something that you know c clarifies if your music's even being used? I mean, what what is the how how are people determining, I mean, not only what what do they what should they be paid, but are they being used? What's what's the landscape look like there?

SPEAKER_03 25:05

It's a giant question mark at this point. Um and and that and that's one of the one of the problems is that um by the time this is one of the situations where by the time the law catches up, it's gonna be too late. These AIs are gonna be trained. Um I mean, scraping the entire universe of the internet for all this material uh happens at the speed of thought. And uh as far as you know, there's nothing official, um at least that I'm aware of right now, um, they're the the best bet right now is to be proactive and as as Alan was saying, license your material to the AI companies ahead of time. And it's a way of them being able to essentially buy uh buy the privilege of not being sued later. Exactly, yeah. But as far as as far as a mechanism or or uh I mean, I personally the the blueprint is already there. Uh there needs to be an ASCAP or a BMI um for AI uses of material. Um you know, a cover cover band sings your song at a bar, you know, you still get uh covered by an ASCAP license. Um you know, there has to be something like that uh in the AI space as well. Uh how that is tracked and monitored is gonna require somebody a whole lot more technically minded than me. But uh that really is I you know what one of the more fair proposals out there to make sure that you know if your material is part of this database that's being used to you know send the AI to music school, uh as it were, yeah, then you should be you should be paid a fair royalty, just like anyone else when their music is used.

Joey Stuckey 26:58

Yeah, I like that. I think that makes a lot of sense. And you know, uh, most of us in the music business aren't getting rich. And uh and and and you know, the the work for for most of us, at least for all the people I associate with, the work is its own reward. We just gotta make sure we can eat. Uh so you know, but so I do think that um, you know, being compensated is a good idea. You know, will are the are the AI companies open to uh you coming in and if if you're a small fry like myself, are they open to you coming in and signing an agreement or are they still just working with the majors?

SPEAKER_00 27:35

In terms of that, you know, it it definitely is an it depends on which one you're talking about. We're talking to. I mean, there there are I I have uh smaller clients that have definitely licensed their works. Uh the ones that I have worked with are kind of niche music. Okay. Um you know, a particular style without going into specifics, but uh, you know, that that would be uh a unique um thing, not just a uh you know pop or rock artist. But uh but uh definitely, I mean, just like licensing for a commercial, um, you know, you you you definitely have the the indie artists that can uh get their music used.

Joey Stuckey 28:24

So is is the is the licensing process with the AI companies, is it akin to sync licensing? Are they are they doing, you know, uh are they doing it kind of that way? Uh or or do you know? But I'm just curious about some of the nuts and bolts. Uh you know.

SPEAKER_00 28:39

Well, as as you know, I mean that you're looking at at two different uh cop you're looking at the copyright and the sound recording, right? Um, which would have to also involve the uh the the composition. So just like in sync licensing, um there are two rights, two copyrights um that are having to be licensed. When when a quote unquote song is licensed, you're you're looking at the two different copyrights.

Joey Stuckey 29:07

Yeah. So it's so they're they're doing they're doing a similar a similar look, uh, uh a licensing kind of thought. Um and as far as far as the sound recording goes, um you know, I I I this now this is my ignorance, so I apologize. But I mean, are the AIs scraping more than just the composition? Are they scraping like you know guitar styles and and and stuff like that? I mean, uh, you know, do you what are we seeing legally when you when you adjudicate this stuff or when you talk about it? I mean, are they are they mainly scraping you know for the compositional uh elements or or the sound recording elements or both? All of the above. Okay. Because that's that's the other thing, is like, you know, uh, there's a c there's a we won't we won't name names, but there, but there's a company uh who is making a lot of uh noise using AI uh with uh the voices of dead celebrities. Um and uh and and you can have your emails or or anything you want said in the voice of this celebrity. Um and uh and it's absolutely creepy because I had a friend send me a text message uh with using one of these voices, and I mean I could hear the person breathing. Uh when they when they spoke, their the pauses were natural. Uh when when there was something that was exciting, they were saying, their voice went up in pitch and became excited. Uh it it just was, it was uh from a technological standpoint, extremely impressive. Um, but when we're moving, and this is sort of a a side trip, but when we're moving into you know likenesses and and the voices of people that are you know no longer with us, I mean, uh uh how are they what what is the protection there from having your likeness and your your it's not your image per se, it's your your sonic you know footprint, I guess, um taken. What what what's happening there? Because I I find that you know again, that's part of the entertainment business. If you if you're able to have James Earl Jones, you know, um, do do a commercial for you and he's dead. I mean, what you know what what what does that look like as far as what what's protected and what's not protected?

SPEAKER_00 31:35

I like the uh the the term that is used for this. It's called digital resurrection. Um here we are, Easter weekend, how appropriate. Yeah, how appropriate. That's great. But uh the nice thing about it is is that it is legally authorized. As you know, there are lots of uh lawsuits over sound alikes where uh uh advertisers and companies try to use people that sound like whether it's uh you know a Donald Trump or a uh whoever that has a really distinctive voice. Yeah, like somebody. Yeah, to sell their products. But this is uh uh where you've got, and and I think the company, one company that that you're talking about is Eleven Labs. Yeah, that's the one. They uh they officially partner with um the estates of famous people, whether they're actors or or otherwise, and uh and license them from those people, and then um they they reproduce the the cadence, the timber, the tone, um, and and allow these dead celebrities to read audiobooks or text and p PDFs in their uh app. So um they they uh it allows uh you know various brands to license these voices legally um for their commercial commercials and commercial projects.

Joey Stuckey 33:10

So as we've said already, the law is usually you know 10, 10, 15 years behind the tech, uh, and it it takes a while to catch up, and and as you know, as Gavin said, it's too late that it's all done. Uh and so you have to you know kind of take a step back. Uh so uh when we talk about the Elvis Act and and these other sort of um uh somewhat protective um you know laws that are out there, I mean, what is the status of of you know protection um when we're talking about your likeness, which is another important thing that someone in the music space um or or the entertainment space has as a as a you know a way of generating revenue? What I mean, what are we seeing as far as guardrails and protections there?

SPEAKER_03 33:57

Well, that's actually one where um it may not have been intended uh for this use, but the there's a suitable law already in place. Um and it requires a brief detour into trademark land. Right. Um but but it's uh it's 15 USC 1125, false designations of origin. Um it's it's usually used for um it's usually used for uh unregistered trademarks, uh you know, trademarks that people have that haven't been you know registered through the US Patent and Trademark Office. Um but in in but the wording of the statute is that if anyone uses any name or indicator to falsely imply uh endorsement or sponsorship by another person, then they're liable. And it's actually been the hook for um uh for for most you know um NIL name, image, and likeness cases where you know you're using this person's name or their face or their voice uh to imply that they endorse a product or a message, you know, that they can face liability under this statute. Um interesting. And it just goes to show that you know the law may move slowly, uh, but lawyers recognize that, and creative lawyering can help uh you know plug the gaps, as it were. Gotcha.

SPEAKER_00 35:38

So we're pending uh sorry, Joe, I was just also pending federal legislation. There was a 2025 um bipartisan actually Senate bill to protect um uh likenesses and voices from AI generated, unauthorized, I should say, AI-generated um digital replicas, and that's the No Fakes Act, um, which uh holds companies as well as individuals liable for um putting out and sharing, reproducing unauthorized digital replicas. And um it it's if it passes, it'll create a national standard for the right of publicity, uh, because right now it's just it exists in various states um you know different at different levels. Uh, but it'll it's got a process for removing infringing content. And um uh there, but you know, as as with other bills, there are certain organizations that have raised concerns um about how it's gonna impact fair use and free expression and um and and that kind of thing, but we're keeping an eye on that bill.

Joey Stuckey 36:57

So so for people that don't know, and and I'm I'm I'm not the one to talk about this, when we talk about fair use, that's that's an important uh argument, I suppose, that that can be made when we're talking about all of these things. Um basically the the way I understand it, and and I'm sure this is imperfect, uh, but it's it's if you're using uh something um uh for educational purposes, um you you have you you you know you can do that. Is that is that basically the the the encapsulating idea of fair use? Let's look you know we should probably talk about that with all this stuff.

SPEAKER_00 37:36

You know, that's part of it, but that doesn't mean you can go out and photocopy a textbook. Gotcha. You know, it's and and one thing that's important as far as fair use goes, it's actually a defense of a copyright infringement lawsuit. Um so that's what when we were talking before um about copyright infringement lawsuits against AI companies for um uh using the uh underlying works in their training, uh AI training, um they claim that it's fair use because it's uh uh a transformative use. Um but of course, as we mentioned, the uh the owner of the copyright is claiming that it's uh uh illegal, um unauthorized copying. So um fair uh transformative fair use happens if uh a new work changes the copyrighted material with new expression or new meanings or messages. Um but and and in addition to education, fair use can be parody, it can be criticism, um, but something other than just copying.

Joey Stuckey 38:57

Now, my recollection uh is that the parody defense is is a weaker defense. Is that is that true? Is that mean that because you have Weird Al out there doing all kinds of parodies, making a lot of money on it. I mean, how does you know how did that work? If is that is that a weak defense or a strong defense?

SPEAKER_00 39:18

If you're my understanding as an aside is that we're Weird Al gets licenses. Okay, he may, yeah, I don't know. That's you're probably but uh but uh as far as that goes, it's got to be uh for for it to be a parody, it's got to be a parody of the underlying work itself, um, and not using that work to make fun of something else.

Joey Stuckey 39:41

Oh, I see. Okay, okay. Well, and and then and the other thing is, you know, just talking about this, like as far as fair use goes, when you when we say transformative, um to me, and I'm not a lawyer, so you probably have a different understanding of this, but that sounds like a very nebulous, hard thing to define. Um, how do we define you know transformative? You've taken my work and you've made it to something different. And you know, and and and even if that's true, I mean, one would think that the sort of embryo of the of the work would still be my composition. So, I mean, how how do we how do we balance those ideas uh when you're talking about it?

SPEAKER_00 40:24

The courts look at a couple of things. One is um added value, like if then if the new work adds new um insights or understandings, or one word that they use is aesthetics. Um they also look if they're at if there's a new purpose or a new character, like put in a context different from the original. Um and then uh the one of the big thing things that courts look at is um whether it is a market substitute or not. So in other words, the tri if it's transformative, it's not gonna affect the original uh owner's ability to profit from the original work.

Joey Stuckey 41:09

Oh, okay. That's interesting. So so I mean, do you remember uh I I forget the artist, forgive me, I know I should know this. Uh, but you know, the police had that song Every Breath You Take, and then and then they took it and uh a hip-hop artist or um changed it every day. I pray, I think, was the was the line. Um and and but they kept the essential melody, um, you know, was the was the same and and and uh for the for the uh chorus, but then the verses were I think rap. I mean, how how strong is that as a transformative vehicle? I mean, is that is that enough? Is that I mean, what if you know, how how do we how do we judge uh you know what what amount has to be transformative? How do you have how do you kind of have feeling or a or a or or a baseline to decide if your work is transformative or not? The short answer is the jury will tell you.

SPEAKER_03 42:05

But uh, you know, in the in the in that case, you know, that you know, a big part of being in the intellectual pro in the intellectual property space as a as a lawyer is being in the risk management business. Um and in that in that situation, you know, you know, that that's that's a recipe for um a co-author credit and a substantial settlement. You know, that that is you know uh in the better safe than sorry land, that's the kind of thing you would want to get permission for, or um, you know, be be prepared to to litigate and probably eventually settle. Um the the famous one is uh two life crew. Right. Um where even if you win on the fair use side, you know, you're gonna win after, you know, a six-figure legal bill. Sure. Um and you know, this is where the intellectualism of it, you know, runs smack into the brick wall that is practical reality. Um and the the reality is that there is no bright line. It's all gonna come down to the the famous words that every lawyer hates. A question of fact, which is we which is that we can't, you know, argue our way out of that on the law. It's gonna come down to you know, the the finder of fact, whether that's a judge or a jury, is gonna have to sit there and listen and compare them and say, Did you take from what's called the heart of the matter? Is it, you know, as Alan was saying, is it transformative enough? Is it a market replacement? Um, you know, all those elements. And and you know, the whether you read it in a in a case book in law school or on a a blog post talking about um Um, you know, IP law or listen listen about it on a podcast. Um that that little nugget of of information and guidance costs somebody a lot of money to be very unhappy. Right.

unknown 44:13

Right.

SPEAKER_00 44:14

That oh sorry, Gibb. That uh old expression of uh don't ask permission first, ask ask forgiveness later doesn't apply with with copyright. Um it's always better to um get the license on the front end, like the case you were talking about, um they did not request permission to sample the police uh before they released their track. And so the police sued for infringement and were awarded 100% of the royalties. So uh that is uh uh uh a good example uh of uh licensing uh what what should have been done on the front end. Gotcha.

Joey Stuckey 45:01

And so that's that's I mean, bringing it back to AI, I mean, these are all sort of you know related uh subjects because you know if if you know the if the AI um manufacturer authors or or or creators or whatever you call them, you know, are wanted to use fair use, I mean, then they have the same hurdles uh to to jump through, I would assume. Um and uh it's just it's so everything's so murky. Um but um let me ask you, uh, as we're starting to run near the limit of our time, uh, are there any things that that we have not talked about that you feel people should know about how to use AI, for lack of a better word, responsibly with fewer legal headaches?

SPEAKER_03 45:47

I mean, the the big thing is read the the let you you read the user agreement um or talk to a lawyer who can give you some advice on it. I know they're long. Um you know, Verizon hates when I go in because I read everything kind of thing. Um but you need to know what you're agreeing to because you may have, from the second you started using a program, already given away the rights to what you create. Uh especially for the the browser-based, like the cloud-based platforms that are out there. Um you know, if you have you know a siloed instance of an AI, it might be different. Um but the you know, read that agreement and you know, as we as I said at the pretty close to the beginning, save all your work. You know, if you you you're gonna have to, you may someday have to prove that you know put in the work and had uh had a a major part in the creative expression that was ultimately created, and you you've got to hold on to that proof so that if the copyright office or somebody in a litigation needs to see it, you've got it right there.

Joey Stuckey 47:04

Yeah, I uh that that makes sense. I I will say um one I'd like to, I'm gonna sidetrack a second. Uh I I went to several AI symposiums in LA uh during in in January of 26, and uh uh there was a lot of talk about uh you know AI and what using it different ways. And sadly, there was no real legal representation uh to answer some of the questions we've been talking about. There wasn't a there was a music attorney present, but he didn't really, I don't I don't know that he was up on the latest. Um he didn't really seem to speak to uh any of the stuff that I was worried about. But anyway, um the uh the I I want to go to what you said though about siloed, because Will I Am was present at one of these uh discussions uh during Grammy Week, and his uh sort of idea that he floated about making AI uh more uh more intelligible from a legal perspective was to own the AI you used, to own the data you fed it, and to make sure you owned all elements of your digital identity. Um but uh the problem with, and I thought that was brilliant. But the problem I have, and you may have a quick, you know, I you've thought about this, how do you how do you do that? I mean it's like how you know how do you how do you own the AI, quote unquote, that you're using? I mean, if if you're if you're paying a monthly fee, you stop paying that fee, you stop getting access to the AI, or I mean what what are your thoughts about that kind of idea?

SPEAKER_03 48:54

I mean, I I don't want to sound glib, but what's gonna give open AI the most money? And that's move forward. Um and and and operating software or really any digital content on a license model has uh people may not even be aware of this, but that's been the reality uh for uh at least a couple of decades now. Yeah. Um when you buy um software, you're buying a license to use the software. Even if you have a physical disk, which I mean, how many computers even have optical drives anymore? Yeah, right. None. Um even if you buy a physical disc, you know, if you have a video game, for example, you know, most most of the most video games need to be connected to the internet for constant uh rights authorizations. Um, you know, I've got I've got a Kindle with you know 600 books on it, but I don't have 600 books on that Kindle. I have 600 licenses to access books on that Kindle. Um so even things that are you know, you know one purchase, download it, put my put the Kindle back into airplane mode, I don't own those books. Um and really outside of legislation or a consumer uprising, um, just refusing to refusing to go along with this um model of doing business in every aspect of life. Um voting with your wallet is is the only way that's gonna make a difference, and it's gonna have to happen on a massive scale. You know, it was I I think you see it when there was uh uh commentary about some newer cars uh needing uh licenses to keep certain um certain options functioning, you saw that kind of leak out a few years ago into into the public sphere, and there was a huge outpouring of negative uh publicity about it, and the companies except for a a certain electric vehicle company, um you know, the other manufacturers all kind of backed off of that. Um you know, the subscription model is is uh a really valuable way to maximize profits on the corporate side. And until it isn't, you're gonna see a lot of resistance from the corporations at abandoning that and and allowing people to you know own uh a given product.

Joey Stuckey 51:46

That's that's that's exactly my thought as well. I was, I was still I was thinking the same thing. Um but that's that is that is a brilliant, a brilliant point. Um and it and it really segues beautifully to the last thing I want to talk about, which is I'm taking a personal point of privilege here and moving a little bit away from AI. But I, over the last handful of years, you know, the first thing Alan said to me uh when when when I was younger and more handsome, uh was uh was that um you know the law takes the theft of your car and the theft of your song as the same thing. Like it's you know, it's it's it's theft, both things are you know your property and and if they're stolen, they're stolen. Um and so you can think about those things in the um, and apologies if I'm not making it as eloquent as you probably did, Alan, but uh but um you can think about those things uh as the same thing. And and and recently in the last uh handful of years, um, it occurred to me that um in one important way that doesn't appear to be true. And um that way is that uh I can leave my car uh as my property to somebody else if I want to. Uh I can leave it in my will, I can leave it to a friend, I can do whatever I want to do with it. Uh, but my song uh runs out of protection um, you know, 75 years after I'm dead or whatever. Um and I just wondered like why we can't leave to our heirs or or or our or or you know, what if I want to leave my song to St. Jude so they can monetize it for their hospital? I mean, you know, what why is it that we we can't leave our intellectual property in the same way we can leave our our physical property?

SPEAKER_00 53:36

Before I pass the torch here, because Gavin I think has the the the real answer to this, um uh the uh term of a copyright is the life of the last surviving author plus 70 years. If you were saying I'm sorry. Yeah. If there's a couple of authors or more than, you know, as you see in a lot of uh popular music these days, you know, four, five, six writers, it's gonna last as long as the last surviving author plus uh 70 years. And and Congress, when this was when this was being determined, uh it's had a lot of changes over the years, uh, but they're balancing the in the interests of the owner with the interests of people who want uh the rights of those who want to be able to uh use songs and uh uh uh the First Amendment rights, basically, to be able to uh use expression that's that's already out there. But Gavin has the I think the clearer answer.

SPEAKER_03 54:44

I really, I mean, well, just to be clear, you can uh pass along to your heirs, but eventually the rights do expire. Gotcha. Um and and you know, everyone expected Disney to spearhead a new extension when Mickey Mouse was about to enter the public domain, and lo and behold, they didn't. Um but why it's limited is you know, blame James Madison. Um and and it it's in the Constitution, not even an amendment. It is in the Constitution that copyrights will be issued for a limited time. And and that all goes back, I mean, it's I could talk for like five hours about this, so I'll keep it, I'll try and keep it brief. Um, it just goes back to the Enlightenment era and changing the idea of the role of government in protecting art. Um and you know, one key thing to bear in mind is that personal copyrights like this are very young. You know, the concept of a personal cop of a personal copyright is is barely 300 years old. Um before the statutes of Anne in 1710, the the right to republish and copy works was owned by the publisher who or the printer who held um who held a license from the king to be able to distribute printed works um uh and reproductions. And that itself was just an outgrowth of the old patronage system, where you were able to produce art because the king or the prince or the pope paid you to produce the art. Um, you know, the the the Sistine Chapel doesn't belong to Michelangelo, it belongs to the Catholic Church. Gotcha. And and the concept of it belonging to the artist what was brand new in the 18th century. And then you come along to the United States in its infancy, and they didn't want uh the right to produce art to be beholden to the whims of a king or an executive. Good thing, you know, looking at current events. Yeah, so so um so they wanted to balance the rights to commercialize the art with the whole idea of the marketplace of ideas and making sure that that art would eventually enter that marketplace. And you know that that you know the you set a time and you'll monetize it and you'll be able to distribute it and even provide for you for your children and to an extent maybe even your grandchildren. Um, but at some point it's time for the public to take it and run. And the extensions to copyright terms actually came about not from artists but from corporations. Um you know, the the old the old joke used to be that they'll extend copyrights until Mickey Mouse has no value. Yeah. And the that turns out to be to be incorrect. I think um I I think that they saw that uh it was a hard enough fight to get the the last copyright extension through Congress, and it just wasn't in the cards for another one. Um so until there's another extension if that that ever happens, you know, what the terms are now is what they are. And it's it's just that that tension between um providing for the artist and also making sure that um art is creating art is seen as a worthy endeavor, that you know you can put food on the table uh by by creating art, but at some point that has to belong to the public. So can't can Disney they can they can still use if it's public domain now, then they can still use it uh as well or uh Oh absolutely absolutely you can still use it, but but and the important thing is is that um the the the other aspect is to you just keep changing it because when you when you change uh a piece of a piece of art, uh if it's changed sufficiently, it's a brand new copyright. So what entered the public domain was Steamboat Willy. And Mickey Mouse now is nothing to do with Steamboat Willie. Um and there's there's plenty more to go into on Disney. They were very smart and also made Steamboat Willy a trademark, which lasts forever. Um uh so people who think they can just start making Mickey Mouse cartoons are in for a rude awakening.

SPEAKER_00 59:47

Um but they can make Screamboat the uh the horror film with the Steamboat Willie uh character that that came out last year.

SPEAKER_03 59:57

Yeah, so you can do that. You you can do that, but but good luck trying to do a knockoff uh Mickey Mouse Clubhouse to compete with Disney Plus. Um and that kind of idea of evolving and changing the work applies not just to corporations, but to individuals as well. Um you know, if if the copyright passes to um passes to your heirs, then they can always take that and evolve the work a bit and make something new. You can see that famously um in literature with uh with Tolkien's works, where the copyright passed to his son, and he his son then took some of Tolkien's notes and made um more complete versions of some of some of the stories in the appendices of Lord of the Rings. And I apologize for going off on a super nerdy tangent.

Joey Stuckey 1:00:59

Oh, I love it.

SPEAKER_03 1:01:00

I love it. I feel like Stephen Colbert now.

SPEAKER_02 1:01:02

This is great.

SPEAKER_03 1:01:04

But but but those works are are authored by by Christopher Tolkien, not J.R.R. Tolkien. So that copyright is gonna last for a whole nother term. Um and and that kind of evolution of the work can help extend extend the term and and allow it to remain, you know, an asset in the estate.

Joey Stuckey 1:01:29

That is absolutely fascinating and and really really interesting and and I think important for people to know because you know there's sort of I I don't know if I mean people will probably not agree with me about this, but anyway, um there's there's sort of not a real large middle class in the music business. Um I mean you tend to be at the beginning or at the top, kind of, and um you know, you you transition through the sort of the middle class um uh uh of music as you're as you're working. But um, you know, it's for some of us, I mean, you know, that that little bit of that little bit of extra money, you know, um uh having a longer copyright of uh work, um, you know, having having that that we can leave or pass on, it you know, could be a real important thing. But I I get I get the argument, and I do find it compelling that it was part of the First Amendment and and why. And that is absolutely fascinating stuff. So I mean, thank you for clarifying that because I I've just, you know, obviously I'm not a lawyer and and uh I have a brain that likes to uh think think like a lawyer if I if I you know when I can, but um that is really fascinating stuff and uh I think important to understand. So I I can't I can't thank you for the time uh enough today. It's been absolutely very enlightening. I I've I have been feeling untethered and like it's the wild west out there with AI, you know, and and just not really sure, you know, what um you know how how to how to use it or not use it, or you know, what was gonna happen. Um and boy, what a lot of clarity I've gained today. And uh and I mean it really it really is a thing where um uh you know I was thinking about this cover I mentioned earlier, this cover art that my friend made. And and uh on one hand, um I'm not gonna make t-shirts and posters and stuff, so I don't really care if somebody steals it. So I don't really, I don't really care. Um I just I just need a cover for my single for Spotify or whatever. I mean, you know, but then but then I was like, you know, but then like how much how much of this can I actually own? Uh, you know, how how can I really use it? Um so there's a lot, there's a lot that we've unpacked.

SPEAKER_00 1:03:49

Um Joey, just to interject real quick on that point. Um the uh one important thing, and and I know I I browbeat all my clients with this, but uh if you if you are working with somebody like that to create something, as you know, it as a co-creator or creator of the work without anything in writing to the contrary, they have ownership rights in the work itself. Absolutely so you would want to have a written agreement with that person in which they warrant and represent that uh either that they have all rights, that they're not copying anything that's out there, um, that it's original to them, and they warranty that they warrant that to you, and they uh will indemnify you if it turns out not to be the case so that your bases are covered. You know, you could even add some AI language in there as well. So AI is used.

Joey Stuckey 1:04:47

That was gonna be my question. Like, so so today, when we're doing our our our indemnification clauses, uh, we want to make sure we include, you know, using AI as a tool or whatever. Uh that they're they're saying that they have all the correct uh permissions and and usages of the AI tool, right? Um and all that kind of stuff. And you know, there have been people that uh have argued uh uh, you know, we have these things called digital audio workstations, DAWs, and that is the software in which uh the music professional records their music. And uh a lot of these uh DAWs now include some form of AI tool. Um, you know, the most famous one, I suppose, is Isotope, uh, and they have a thing where uh the AI will suggest your initial balance for your mix. Uh I'm offended by that. I I don't want that. Uh I'm a recording engineer. I don't need you to tell me what my balance should be. But but you know, these tools are are being included um in in in the very software that we make our our our music with. And so there has been a question of like, well, is that, you know, how does that? How does that apply to the law? Does it, you know, does it apply? Um, so anyway, that's that's another, you know, we've talked, you know, talked your ears off. But I mean, that's another thing that that you kind of you know wonder about when you're when you're uh doing this stuff. As I say, I I refuse to use that. I don't I don't want your prompt. You know, uh I'm a recording engineer by trade and experience, and I don't need someone's suggestions of where to start my levels. But but there are a lot of people that you know find that helpful. Um and and you know, so I I think what I'm what I'm saying in a roundabout way is that what is is would you just say to to close that it would be a smart thing to have your mixer or your uh whoever's doing your mix work, uh, you know, give you a work for hire and include that they had the rights to use any AI tools.

SPEAKER_00 1:06:48

Right, right. Just like they, you know, in many agreements like that, they they have a license to use the software that they're using, as Gavin was mentioning earlier.

Joey Stuckey 1:06:56

Yeah. So I mean that's that's I I think I think I'm gonna uh I mix my own stuff, but if I ever go to somebody else, uh I I'm I may uh I may uh I may put an AI clause in that too.

SPEAKER_00 1:07:07

Right, right, right. One one last little thing that that kind of uh I don't know if this is uh necessarily segued, but I wanted to make sure we mentioned it. Um when you register your your copyright, as we discussed earlier, um there's a disclosure uh that you have to make if you used AI. And uh I have heard of people kind of skipping up fudging on that. Uh and uh and I just want to put out a warning there that you can uh potentially lose your copyright and face a law lawsuit for providing false information to the copyright office. So if if you do use AI when you uh uh file your copyright, be sure to um to note that too. And and there still may be protection um even if you can't register the uh the output necessarily. If someone infringes on your output, if you uh it doesn't mean the output is necessarily without protection, because the copyright owner could have a claim against third parties um uh based on their rights in the original IP that they use to uh to train the AI, their ownership. Um looking at the the cartoon, since we we're on a uh cartoon kick a little bit today, like if you were uh an animator that trains an AI on uh using your cartoons, you could potentially prevent third parties from copying anything generated in the output, even though you wouldn't be able to necessarily uh copyright the output, but you've got the copyright in the original. So there is protection for the output.

Joey Stuckey 1:09:02

Okay, that that's a really important point. Um, because that is where I think a lot of people have gotten confused. Um that because a lot of people, as I say online in these forums, are saying that the Library of Congress, you know, will protect uh elements of your copyright, uh, even if it can't be you know fully protected. And that's where the confusion, that's where the confusion is because because and so what we're saying is that you know there would be there would be some protection from the original copyright that would protect third parties from stealing that while while the AI portion of the copyright might not be protectable, and we don't really know yet until everybody gets in court and has a has a battle royale. Right, right, right. That's so is is that I want to make sure I'm stating that correctly. So um that that's and and and also would this be just as an esoteric point, like if you if you falsify information to the Library of Congress, I mean, is that perjury or what is that?

SPEAKER_00 1:10:06

They it it it yes, it is illegal. I don't know if it's necessarily called perjury, but it's uh providing false information to the government agency. Gavin, do you know the specification?

SPEAKER_03 1:10:20

Um I I'm I'm trying to think back to the the authorization on a um in the cover application, it might stay under penalty of perjury, but usually the um the penalty is just gonna be lose your copyright. Gotcha. Okay. So provided you weren't in an attorney who signed it, and then you're in a whole different held to a higher standard.

Joey Stuckey 1:10:46

I gotcha. That's that is absolutely awesome. You guys are absolutely the best. It has been such a privilege and such a pleasure to chat with you. Um, I wish I could do it more often. Just just uh we've covered everything from copyright to cartoons. It's been a pretty good day. Absolutely.

SPEAKER_00 1:11:02

Well, let's do it again, Joey.

Joey Stuckey 1:11:04

I appreciate you all. Thank you so much. And uh this has been uh certainly an education for me, and hopefully I will be a better steward of uh of uh all the all the paperwork I have to do now.

SPEAKER_00 1:11:16

Right. Thank you. Absolutely, thank you, Joey. Thanks, Gavin. Thank you.