The most well-known example happened recently when a song titled ‘Heart on My Sleeve’ using AI-generated vocals identical to that of artists Drake and The Weeknd emerged on various platforms. A TikTok user who goes by the name Ghostwriter took credit for using AI to create the simulated Drake and The Weeknd vocals. Both Drake and the Weeknd are signed to Universal Music Group (UMG). It came as no surprise when UMG took the song down from all major platforms, citing copyright infringement… but not before the song garnered millions of streams and views.
The use of AI-generated music has raised several concerns among rightsholders in the music industry. From a South African perspective, we explore whether AI-generated, when used in the manner of ‘Heart on My Sleeve’, could potentially violate copyright law and/or any other applicable laws.
Copyright
‘Heart on My Sleeve’ is by all accounts an original composition. As such, it would not violate the copyright in any musical and literary works of any composers and/or music publishers. If ‘Heart on My Sleeve’ does not incorporate any sound recordings owned by UMG, can it be said that it infringed the copyright in any sound recordings owned or controlled by Universal? The answer is not a straightforward one.
The reason is as follows: For AI voice models to ‘come to life’, the models are trained by accessing existing recordings (many of which are copyright protected). The models themselves do not incorporate any of the recordings despite deriving their training from the recordings.
There is currently an open question on whether such use constitutes copyright infringement or whether it falls within the copyright infringement exception known as ‘fair dealing’ under the South African Copyright Act 98 of 1978 (the Copyright Act). The question becomes particularly more intriguing when one considers the looming signing of the South African Copyright Amendment Bill by President Cyril Ramaphosa. This bill has been criticised, and rightly so, for, among other things, its introduction of a ‘fair use’ defence, which involves more open-ended exceptions to copyright infringement as opposed to the more closed, determinable list of exceptions under the fair dealing provision in the current Copyright Act.
Personality rights
The sound and style of one’s voice does not fall within the categories of works eligible for copyright protection under the Copyright Act. However, the cloning of a person’s distinctive voice could potentially violate common law personality rights. South Africa does not have specialised protection of image rights. However, the law of delict provides for the actio iniuriarum, which covers all personality rights which include identity, dignity and privacy.
A similar right, referred to as the right of publicity, exists in some states in the US. It was on this basis that singer Bette Midler successfully sued Ford for using a singer who imitated her voice in an advert.
While South African courts have never been called upon to decide disputes concerning voice imitations, the South Gauteng High Court has recognised the protection afforded by personality rights in the case of Kumalo v Cycle Lab (Pty) Ltd. In this case, former Miss South Africa and TV executive Basetsana Kumalo successfully sued a company by the name of Cycle Lab for the unauthorised use of her picture in a magazine advert.
Judge Boruchowitz held: “… the plaintiff’s image has been used in a misleading way. It generates the false impression that she endorses the lady-specific cycling products sold by the defendant and the defendant’s campaign to promote cycling among women. Use of her image in this manner constitutes a violation of her right to identity.”
It is worth noting that personality rights cannot be separated from one’s personality and thus cannot be transferred. Accordingly, a record label or management company, for instance, would not be able to invoke this right on behalf of an artist. Only the artist can invoke this right.
Passing off
Another common law remedy at the disposal of rightsholders is ‘passing off’, a species of unlawful competition. In the case of Capital Estate and General Agencies (Pty) Ltd and Others v Holiday Inns Inc and Others, Rabie JA defined passing off as follows: “The wrong known as passing off consists in a representation by one person that his business (or merchandise, as the case may be) is that of another, or that it is associated with that of another, and, in order to determine whether a representation amounts to a passing off, one enquires whether there is a reasonable likelihood that members of the public may be confused into believing that the business of the one is, or is connected with, that of another.”
Using ‘Heart on My Sleeve’ as an example again, it would not be necessary for Drake and The Weeknd to show that the song explicitly claims to contain their voices for them to be successful in a passing off claim. It would be sufficient to demonstrate that there is a reasonable likelihood that members of the public may believe ‘Heart on My Sleeve’ is a Drake and The Weeknd song.
Trade mark
Could AI-generated music possibly implicate another proprietor’s trade mark? A trade mark is anything capable of graphic representation that identifies the goods and services of one person from those of another. A trade mark serves as a badge of origin and is thus not applicable to the protection of music. An artist’s name may, however, constitute a trade mark. As such, an artist may institute trade-mark infringement proceedings if an AI-generated song is wrongly attributed to the artist.
Interestingly, ‘Heart on My Sleeve’ uses music producer Metro Boomin’s producer tag. A producer tag is a short sound on a song meant to make the listener aware of who is responsible for producing the song. It therefore serves as a badge of origin and can be protected by way of trade-mark law. Metro Boomin could therefore object to the use of his producer tag on the basis of trade-mark infringement.
It will be interesting to see how the industry contends with the increasing sophistication of AI technology. At the risk of sounding too simplistic, there should be a regime in place where AI companies seek licences from rightsholders in the appropriate circumstances.
Bongani Mdakane is a lawyer specialising in intellectual property and the founder of Mdakane Attorneys
