AI Can Write the Lyrics, But Who Owns the Music Is Up for Debate

Nashville-based country musician Anna Vaus and her brother were curious about the quality of AI songwriting, so they asked a generative AI chatbot to write a country tune, offering the bot nothing more than a title: “River of Love.”

The chatbot generated a verse about the ebb and flow of a romantic relationship replete with imagery of water. The opening line: “I’ve been a river looking for ocean arms.”

Vaus and her brother composed chords, added rhythm, and recorded the song verbatim. The resulting song includes a combination of AI-generated lyrics and human-made musical expression.

Who owns the copyrights? The US Copyright Office is tasked with finding the answer.

The agency says lyrics like ‘River of Love’ can’t receive copyright protection under existing law. The agency, part of the Library of Congress, issued guidance in March 2023 stating that any AI-generated content alone is not copyrightable—only human creativity can receive protection.

Vaus’s experiment from 2020 underscores complex legal questions for musicians and artists as they weigh the advantages and pitfalls of using rapidly advancing AI tools in the creative process. AI could unlock enormous creative potential for artists who may find imaginative uses of AI or use bots to support their own art. For now, uncertainty remains over protections afforded to artists using the new technology.

The lines of copyright demarcation between pure, human art and bot-influenced art are being drawn in federal offices and courts. The Copyright Office, which once had to contend with the novelty of copyrighting photographs and then later computer programs, will release a series of studies on copyright law’s intersection with AI. Among them will be a paper, expected this summer, focused on the copyrightability of AI-generated works.

In the meantime, one federal court has already agreed with the Office’s view that a work created exclusively with AI isn’t protected, but many more close cases are in the pipeline.

“Artists and creators who are interested in using AI generators will potentially use them but not register their works, waiting, hopefully, for a change in the legal position,” said Edward Lee, an intellectual property law professor at Chicago-Kent College of Law. “But some might shy away from even using AI at all.”

Vaus said she agrees that a song created exclusively with AI shouldn’t receive the same copyright protections afforded to humans, and the siblings never sought to own the lyrics. But she said there is “absolutely a skill” in figuring out how to create art with AI.

Vaus said she and other songwriters have wielded AI in creative ways, experimenting with chatbots to help write specific lines for a song or come up with rhymes. Vaus wasn’t that impressed with AI-generated “River of Love” lyrics, but said they could offer a foundation to write her own song.

“It certainly generated some new perspectives,” Vaus said. “It brought up some language that maybe I wouldn’t go to when writing.”

‘Rigid View’

The Copyright Office’s guidance is merely a year old and still evolving. The current policy framework, released in March 2023, fails to account for nuanced uses of AI, and until regulators or the courts provide additional clarity, many artists may be in legal limbo, Lee said.

Copyright Office Director Shira Perlmutter defended the office’s guidance and its recent rejections of registrations for AI-assisted works at an AI and music law conference last week. They include an award-winning piece created with the AI tool Midjourney and a human-made photograph reanimated with AI in the style of Vincent van Gogh.

The guidance asks applicants to disclose and disclaim any elements of their copyrighted work that were created with AI. Requiring the disclaimer “was not to make applicants’ lives more difficult, or to require lawyers to be consulted,” but to “avoid any later questioning of the validity of the registration,” Perlmutter said on April 4.

Lee, who authored a law review article criticizing the office’s AI guidance, said it failed to undergo the proper procedural steps before issuance. The office should have held a public comment period because the guidance include “new substantive rules” about the copyrightability of an entirely new class of AI-generated works, Lee said.

The office said in a statement to Bloomberg Law that its guidance “clarified existing practice” and “was issued in a manner consistent with other policy statements and interpretive rules that the Office has published.”

The office did open a formal public comment period later in summer 2023 for its study on AI, and it will provide updated guidance on registering AI generated works, subject to the notice-and-comment process.

But as a legal matter, Lee argued the office’s approach provides an overly rigid view of authorship. He agreed that an AI work based on one or two word prompts can’t receive copyright protection. But an AI user can express creativity through sufficiently complex prompt engineering and the “selection and arrangement” of AI elements of a work, he said.

In one closely watched case, the office in 2023 granted partial registration for an AI-generated comic book “Zarya of the Dawn,” but only for the human-made text and panels. The artist Kris Kashtanova had to disclaim the comic book images, which were created with Midjourney.

Lee argued Kashtanova’s AI-images should be registered as well, since the artist exercised control over the images with creative prompting and iterations. But the office reasoned that AI text-to-image models include some randomness, so an AI model given the same set of prompts might reproduce completely different images.

“The Copyright Office and the Supreme Court have rejected the ‘sweat of the brow’ doctrine, which is that just because you worked hard at something doesn’t make it copyrightable,” said Stuart Levi, an intellectual property attorney at Skadden Arps Slate Meagher & Flom LLP.

Although the Copyright Office’s rejections of applicants using AI receive far more public attention, it has still granted registrations for AI-assisted works, said Perlmutter. Those include about 200 registrations of the 1,000 applications the office has received that disclose the use of AI, Perlmutter said.

Navigating Uncertainty

The agency’s evolving regulatory posture poses a number of practical problems for creative industries.

The Copyright Office last year sent a letter to the Mechanical Licensing Collective, a nonprofit tasked by the federal government with distributing royalties to songwriters and composers, guiding it to withhold certain royalty payments.

Specifically, copyright owners of musical works shouldn’t receive royalties if “circumstances reasonably indicate” the music lacks sufficient human authorship pending an investigation by the MLC, the agency said.

Amazon.com Inc. will have to navigate similar legal waters as it faces an inundation of AI-generated self-published books, Levi said.

“Everybody is going to have to deal with this dramatic increase in the amount of content generated,” he said. “And there’s going to be a lot of touch points where we will care if it is human generated or not.”

Singer-songwriter Shane Stevens warned the use of AI in the writer’s room without guardrails could cause chaos for authorship credit and royalty distribution.

“Until we really know how they’re tracking the AI that they’re using, it can become a copyright issue for a songwriter in particular,” Stevens said at the AI and music law conference held at Vanderbilt University in Nashville. “We need to get ahead of it in the room now.”

The Motion Picture Association, which represents major film studios and Netflix Inc., argued in a comment to the Copyright Office in 2023 that its rigid copyrightability guidance could be used by infringers who want to rip off AI-generated material that reflects human creativity.

Potential infringers could “cause mischief by challenging the validity of registrations” for works that were touched by AI, the comment said. The association pointed to a copyright infringement case involving video games on the brink of trial that was paused while the Copyright Office sorted out a new registration questions in the case.

Given those uncertainties, providing artists with blanket advice about their ownership of art which used AI remains complicated, said Farrah Usmani, a music and entertainment attorney at Nixon Peabody LLP in Nashville. But musicians shouldn’t stop using AI tools, as long as they have the proper legal conversation before they put it on the marketplace, she said.

“Let’s try to deconstruct what it is that went into the song, whether its AI or whether its samples,” Usmani said. “It doesn’t necessarily change how we advise our clients.”

Until then, the Copyright Office will continue to debate the essence of its AI dilemma.

“When does the AI become a tool that reflects the human’s creativity, rather than being the source of the expressive elements itself?” Perlmutter said.