Where Melodies Emerge From Algorithms: A Dissection of the Need for A Licensing Structure in A World of AI-Generated Music

Abstract

Generative Artificial Intelligence (“AI”) camouflages its products among human-made creations, expanding the boundaries of the music industry as we know it. Since the widespread introduction of generative AI systems, and since the announcement that many major companies intended to develop their own AI programs, there has been little response from legislators regarding how to reconcile projects made by human creators with those created by artificial intelligence. The current method of generative AI infringes on artists’ copyright of their work and does not constitute fair use. To accommodate for artists’ consent and compensation, the best option for resolving this divide would be to enforce the compulsory licensing scheme provided by the Copy-right Act of 1976. This would allow artists to receive a marginal amount of money in exchange for allowing their songs to be copied into the program while still following the decision of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

The doctrine of fair use has enabled countless parties to claim that the process of generative AI is transformative and, thus, fair use. However, this Note provides that such a construction of the fair use defense fails to recognize that generative AI encourages users to appropriate music’s expressive value. This factor of generative AI qualifies it as an infringing use and not a fair use. Since this constitutes an act of infringement, the best remedy would be to create a compulsory license for generative AI, as this license would allow artists to use the technology in a beneficial way instead of endorsing infringement. This suggested compulsory license for generative AI would mirror many elements that are already accepted in the Copyright Act. By supplying a license, this Note argues that Congress would be effectively allocating economic incentives in order to foster a creative environment that benefits the public.