Loyola Law School Entertainment Law Review image of Capitol Records

Looking Beyond the FN Meka Scandal: AI & Copyright

Reni de la NuezNews & Insights

By Reni De La Nuez

As the music industry continues to grapple with rapid digitization and evolving technology, one question that must be considered is how artificial intelligence (“AI”) and copyright will coexist in terms of music ownership. The recent signing of AI-generated artist FN Meka to Capitol Records exemplifies not only the social issues within tech, but also the significant legal issues that will require resolution as AI becomes more commonplace in the entertainment industry.

Capitol Records signed AI artist FN Meka to a recording contract in August 2022.[1] FN Meka was developed by Factory New, a music company self-described as “specializing in virtual beings.”[2] While the terms of the signing are not public, Capitol Records released one song with FN Meka before terminating the record deal due to backlash regarding blatant racial stereotypes surrounding the character’s appearance, social media presence, use of racial slurs, and fictional criminal background.[3]

The FN Meka matter raises copyright issues of tantamount importance. Copyright law is not structured to adequately regulate the creation of AI music. For an AI system to generate a creative product, a human must input information into a man-made algorithm that the machine can then use to create a new computer-generated work.[4] By organizing the information inputted by a human, the computer effectively undermines the human’s role as the author, making the computer the true “originator … to [which the work] owes its origin.”[5]

Previous decisions by the US Copyright Office Review Board have considered whether a copyright for an AI product exists at all. Earlier this year, The Review Board reaffirmed its stance that human authorship is necessary for a work to be afforded copyright protection when Steven Thaler attempted to register the copyright in a “two-dimensional artwork” generated by his AI-powered Creativity Machine.[6] Although Thaler invented the AI system by which the image was created, he was denied a copyright registration based on the Board’s finding that the image lacked the necessary human authorship to satisfy copyrightability.[7]

One of Thaler’s unavailing arguments was that the artwork was a work made for hire, by which Thaler intended to show that the Creativity Machine transferred all rights in the work to him.[8] The Board noted that even if an AI could be considered an employee for purposes of applying the work-for-hire doctrine (which it could not) there would still be no copyright to transfer to Thaler due to the lack of human authorship.[9] Given that many major-label deal structures categorize artists’ songs as works made for hire, this decision is particularly relevant to the music industry because it reaffirms that ownership over a creative product does not necessarily equate to the existence of a copyright in that product.[10]

Another issue to worth considering is whether the author of any copyrightable work inputted into such a machine could claim copyright infringement over the outputted product which relied on their work in its development. This type of problem would likely turn on whether the AI-generated product would have protection as a fair use of the preceding work. A work that draws on a copyrighted predecessor may have a fair use defense depending on four main factors: the purpose and character of the use, the nature of the final product, the amount used in relation to the copyrighted piece as a whole, and the effect upon the market value of the original piece.[11] The “purpose and character” factor looks to whether the use was transformative and whether it is commercially motivated.[12] In the context of music, it is difficult to see how a song generated via an AI’s interpretation of other songs, coupled with commercial intent, would succeed on this first, crucial factor to establish fair use.

In addition to the question of fair use, if the AI machine embellishes the previous work with completely original additions, then it could be considered a derivative work entitled to its own copyright protections.[13] Even so, the creation of a derivative work requires permission from the owner of the original work’s copyright, as such copyright carries with it the exclusive right to prepare derivative works.[14] In the case of music, and depending on what type of information is necessary for the AI machine to process the work properly, this could require permission from both the composition’s copyright owner and the sound recording’s copyright owner.[15]

While the FN Meka / Capitol Records relationship was not meant to be, copyright and AI will likely continue to have great overlap moving forward. Given the rapid growth of AI-generated and AI-assisted musical works, current legal presumptions of authorship and ownership will be challenged, with further developments in this area of law anticipated.

[1] Murray Stassen, Capitol Records just signed a virtual artist, FN Meka. He has over 10 million followers on TikTok., Music Business Worldwide (Aug. 12, 2022), https://www.musicbusinessworldwide.com/capitol-records-just-signed-a-virtual-artist-fn-meka-he-has-over-10-million-followers-on-tiktok/.

[2] Joe Coscarelli, Capitol Drops ‘Virtual Rapper’ FN Meka After Backlash Over Stereotypes, N.Y. Times (Aug. 23, 2022), https://www.nytimes.com/2022/08/23/arts/music/fn-meka-dropped-capitol-records.html.

[3] Evan Minsker, Capitol Records “Severs Ties” With AI Rapper FN Meka, Issues Apology After Facing Criticism for “Gross Stereotypes”, Pitchfork (Aug. 23, 2022), https://pitchfork.com/news/capitol-records-has-severed-ties-with-ai-rapper-fn-meka-issues-apology-after-facing-criticism-for-gross-steretypes/.

[4] A Short History of AI in Music Production, MusicRadar (Jun. 14, 2022), https://www.musicradar.com/news/the-history-of-ai-in-music-production.

[5] Goldstein v. California, 412 U.S. 546, 561 (1973) (discussing the constitutional meaning of the term “Author”).

[6] Letter from Shira Perlmutter, U.S. Copyright Office Review Bd., to Ryan Abbott, 4 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf (affirming the Board’s refusal to register the copyright).

[7] Id. at 3.

[8] Id. at 6.

[9] Id. at 7.

[10] Kevin Zimmerman, Watch Out for Work-for-Hire, BMI (Nov. 22, 2006), https://www.bmi.com/news/entry/Watch_Out_for_Work-for-Hire.

[11] 17 U.S.C. § 107.

[12] Authors Guild v. Google, Inc., 804 F.3d 202, 219 (2d Cir. 2015).

[13] 17 U.S.C. § 101.

[14] 17 U.S.C. § 106 (2).

[15] What Musicians Should Know About Copyright, U.S. Copyright Office, https://www.copyright.gov/engage/musicians/.