Let’s imagine you are a talented singer, pouring your heart and soul into your craft. Your voice is your instrument. It captivates audiences, leaving a lasting impact on everyone who hears you. One day, you stumble upon a mesmerizing song online. As you listen more closely, a sense of disbelief washes over you. The voice you hear is unmistakably yours, yet you have never recorded or released this particular piece. Confusion gives way to the realization: Your voice has been replicated and used in an AI-created musical work without your knowledge or consent.
How would you feel in such a situation? Puzzled? Intrigued? Perhaps even violated? Naturally, questions would flood your mind: Who has the right to use your voice in this manner? Do you hold any control over such use? Is it an infringement on your copyright or is it more your performer’s rights? Or does it encroach upon your personality rights, as your unique voice is employed to evoke your identity and persona in a new creation?
Now let’s stop imagining: These are actual issues affecting artists of today. Eminem,[1] Drake, The Weeknd, and Jay-Z are only a few examples of those whose voices have been AI-synthesized and used in songs in the past few months. And by the way, even deceased artists are not left out.[2]
Copyright can’t help you
In this perplexing scenario, the recourse to citing copyright infringement for the request to have AI-generated music removed from streaming services would be futile. Copyright law does not provide the means to halt the utilization of an AI-generated voice that resembles your own. The scope of copyright protection is confined to a set of specific rights, all attached to a specific work, such as the right to reproduce, distribute, and perform a work. But no work has been used here. It was not your lyrics used, not your melody either, both of which would be protected by copyright law. What is at stake here is the replicated voice, and that is not a protectable ‘work’ under copyright law.
Performers Rights Can’t Help You Either
Under performers rights, performers are granted certain exclusive rights, such as the right to control the use and distribution of their performances. “Performers” are defined in the Rome Convention and the WIPO Performances and Phonograms Treaty as “actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works (or expressions of folklore)”.[3]
The need arises here to draw a distinction between two situations: one involving the use of an actual person’s performance in a subsequent music production, and the other involving the AI-generated imitation of a performance. In the first situation, questions of performance rights come into play as the use of the actual performance raises concerns about ownership and authorization. However, in the second situation, where AI imitates a performance, the traditional notions of performance rights may not apply since no prior performance has been replicated.[4]
This distinction is important because it highlights the limitations of relying solely on performance rights in the context of AI-generated music. While performance rights are designed to protect the rights of performers and their performances, they are primarily concerned with actual performances captured in recordings or live settings. In the case of AI imitations, no specific performance has been copied, making it difficult to claim infringement of traditional performance rights. In the introductory scenario, what the singer heard was of course not her performance of the song, but machine imitation of her voice to produce what could have been her performance. Indeed, Eminem did not perform David Guetta’s Future Rave; he was not even aware of it until after the release of the song.
Personality Rights? More likely
While copyright and performance rights have long been the go-to legal frameworks for protecting creative works, they may fall short in our scenario. However, there is a promising alternative that deserves our attention: personality rights.
Personality rights, also known as the right to publicity or image rights, refer to the legal protection of an individual’s name, image, likeness, or other distinctive aspects of their persona.[5] These rights are designed to protect an individual’s reputation and control over their image and personal brand.[6] It has been said that personality rights are the civil law counterparts to the common law right to privacy and the right to publicity.[7] These rights protect every legal person’s physical, psychological, and moral identity, as well as the external expression of that identity, like the way a person sounds or acts, if distinct enough.
Bette Midler’s case illustrates this.[8] In this case, Ford Motor Co. sought to use a sound-alike singer in a commercial after Midler declined to participate. Ford specifically instructed the backup singer to imitate Midler’s voice as closely as possible, successfully deceiving many, including individuals close to Midler. However, Midler took legal action and the court ruled that there was a misappropriation of her right of publicity regarding her distinctive singing voice. The court’s decision emphasized that Midler’s singing voice was under her control, and Ford had no authority to utilize it without her explicit permission.
Unlike some other jurisdictions,[9] Nigeria currently has no specific law in place to protect the name, voice, image, and personality of celebrities. Also, there has been no pronouncement as to whether privacy rights as provided by the Constitution actually extends to this. However, limited protection may be sought through actions under common law torts, such as passing off, malicious falsehood and defamation.
In some other jurisdictions, personality rights have even been extended to even post-mortem protection to respect the privacy and dignity of the deceased. An example is the case of Nelson Mandela.[10] After his death in 2013, his image and likeness were heavily commercialized and used in various products, including clothing and accessories. The Nelson Mandela Foundation took legal action against several companies for unauthorized use of Mandela’s image, arguing that this violated his personality rights. The foundation was successful in securing compensation and an injunction to prevent further unauthorized use of Mandela’s image, protecting his legacy.[11]
Therefore, of all creative-industry-focused rights as currently administered, personality rights provide a more likely safeguard in the growing market of replication-based AI-created musical work. This is because the unique qualities of one’s voice arguably contribute to one’s personal identity and artistic expression; and the use of a voice that aims and indeed resembles your voice without your consent may encroach upon your rights to control and exploit your own persona.
Conclusion
Like the invention of photocopying and recording devices, the rise of AI-generated works signals the need to rethink the jurisprudence of intellectual property rights and the extent of the protection granted by them. However, pending legal clarification and possibly amendments, the artiste might choose a collaborative, rather than an adversarial approach. For example, the pop star Grimes has declared that she would welcome songs created using AI-generated versions of her voice, provided she gets a cut of the royalties earned by their output[12]. But this suggestion of a collaborative approach is made cautiously, as these issues transcend financial considerations.
[1] Thania Garcia, David Guetta Replicated Eminem’s Voice in a Song Using Artificial Intelligence, Variety, 8 February 2023; see also Eminem AI Cat Rap, available: https://www.youtube.com/watch?v=fDfRgMOLbdA
, https://variety.com/2023/music/news/david-guetta-eminem-artificial-intelligence-1235516924/
[2] Menon, Pranav, “Technology Immorality and Its Legal Issues” (2020). SJD Dissertations. 19.
https://elibrary.law.psu.edu/sjd/19
[3] International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations and the Rome Convention, 496 U.N.T.S 43, article 3(a) and WIPO Performances and Phonograms Treaty of 20 December 1996, articles 2(a).
[4] For example, in Eminem and David Guetta’s situation, Eminem did not perform David Guetta’s Future Rave; Eminem was not even aware of it until after the release of the song. See ibid 1.
[5] Daniela Kammerer, “Personality Rights: The Right of Publicity in the United States and Germany”, Duke Journal of Comparative & International Law (Vol. 26, No. 1, 2016).
[6] J. Thomas McCarthy, “The Right of Publicity: Protecting Personality in the Digital Age”, California Law Review (Vol. 91, No. 6, December 2003).
[7] Juliane Kokott, “Personality Rights in European Contract Law” European Review of Contract Law (Vol. 1, No. 3, 2005).
[8] Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)
[9] An example of such laws is the Washington Personality Rights Act (WPRA), passed in 2008; many European countries have laws which specifically exist to safeguard personality rights.
[10] Eric Goldman, “The Right of Publicity: Protecting an Individual’s Likeness and Identity” available at https://www.nolo.com/legal-encyclopedia/the-right-of-publicity-protecting-an-individuals-likeness-identity.html.
[11] Note, however, that in South Africa, Personality rights cease to exist when the individual dies. See International Trademark Association, ‘Right of Publicity State of the Law Survey’, 2019, ROP committee: https://www.inta.org/wp-content/uploads/public-files/advocacy/committee-reports/INTA_2019_rop_survey.pdf accessed 10 February 2023
[12] Chloa Veltman, ‘Grimes has welcomed the use of her voice in AI music, sparking legal questions’, 27 April 2023:
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- Source: https://www.theippress.com/2023/06/06/losing-yourself-embracing-personality-rights-in-ai-generated-music/
