Musicians Test AI Litigation Waters With Biometric Privacy Claim

Singer-songwriters are turning to a novel approach to go after AI companies for training music generators on their songs without permission, leaning on Illinois’ unique biometric-privacy law.

A group of independent musicians’ proposed class actions targeting Suno Inc., Uncharted Labs Inc.'s Udio, and Google LLC’s Lyria 3 depart from the dozens of existing copyright infringement suits against artificial intelligence companies by also accusing the developers of illicitly collecting and exploiting their voiceprints. Those violations of Illinois’ Biometric Information Privacy Act have propelled the AI companies to billion-dollar valuations, the lawsuits say.

Bringing claims under Illinois’ BIPA is among plaintiffs’ latest gambits for combating the unauthorized use of their works and likenesses by the AI industry. The wave of copyright lawsuits began in 2023 with infringement assertions over inputs and outputs. As rightsholders have experimented with new strategies, those lawsuits have expanded to include claims of trademark infringement and piracy, and publishers have begun going after pirate sites directly.

The new playbook should concern AI companies because BIPA claims allow the artists to avoid the hurdle of fair use, developers’ most-common defense to copyright claims over training, said Northwestern University law professor Matthew Kugler.

Unlike arguments around copyright infringement, “the biometric case turns on exactly what did you collect, it turns on nothing to do with fair use,” he said.

The cases represent a “major threat” for AI companies, said David Oberly of Baker, Donelson, Bearman, Caldwell & Berkowitz PC, because “the volume of data and the amount of data subjects that are implicated in whatever data process is being alleged, it just leads to huge classes.”

In the last several years, big tech companies have become familiar with the eye-popping settlements generated by Illinois’ privacy law. Then-Facebook Inc. paid $650 million and TikTok Inc. $92 million in 2021 in settlements over their use of facial recognition technology.

The biometric-privacy risk associated with AI “deserves much more attention than it has received,” said the musicians’ attorney, Ross Kimbarovsky of Loevy & Loevy.

The fate of the new strategy will begin to unfold in the next few months when federal judges rule on motions to dimiss the Suno and Udio cases.

New Frontier

Two main centers of litigation have emerged in the flurry of AI copyright cases: California and New York. The indie musicians led by Chicago-based firefighter and songwriter David Woulard are among the few to sue in Illinois federal court.

Illinois “was definitely the place that made the most sense to sue,” Kimbarovsky said, pointing to its landmark privacy law and noting several plaintiffs in the lawsuits reside there.

BIPA is unique in that it grants a private right of action, unlike similar biometric-privacy laws in states such as Texas, which requires the state’s attorney general to sue.

While the plaintiffs have made out “all the elements of a BIPA claim,” Kugler said, the AI companies are likely to argue the data they collected doesn’t constitute biometric information. The artists eventually will have to prove the voiceprints can be used to identify them like a face scan or fingerprint can, he said.

“If what I am storing is fundamentally a composite of 10 different voices and they’re all tagged ‘country,’ but nowhere in there is something that is identifiably James Wesley’s voiceprint, then I may not have collected a voiceprint,” Kugler said. “On the other hand, if there is a file there that is basically Bob Dylan’s voice and I can make things in the style of Bob Dylan’s voice, that sounds very much like a voiceprint.”

In the Suno case, the plaintiffs said their music includes “distinctive vocal tags clearly identifiable as their own voices” that therefore contain “protectable biometric identifiers as defined by BIPA.” Suno computed and stored their data in ways that could identify the individuals across recordings, the musicians alleged, and each “scan/capture is a separate violation.”

If the data is covered by BIPA, the plaintiffs must convince the court that the defendants collected and had possession of it, Baker Donelson’s Oberly explained.

“In this instance, it seems pretty clear cut that those two elements are there, and so you’re going to be able to at least get past that threshold issue,” he said.

Testing BIPA

Some plaintiffs have succeeded in extracting settlements over claims their voiceprints are personally identifiable information. In 2023, Whole Foods Market Group Inc. paid nearly $300,000 to settle a lawsuit brought by warehouse employees over implementation of a system using voiceprints to verify workers’ identities without their consent.

Last year, voice actors suing Lovo Inc. over the training process for its AI-powered voice generator were able to overcome a bid to dismiss right of publicity claims. A New York federal court rejected Lovo’s argument that the actors failed to demonstrate their voices were recognizable, pointing to declarations from industry professionals that the voice clones were identifiable as the plaintiffs.

The privacy approach may insulate the musicians from an unfavorable court decision that could plague copyright cases against AI developers.

At any moment, “one of the federal circuit courts could come down with a new fair use ruling that either makes or breaks the copyright argument,” Kugler said.

While the strategy’s success could inspire more AI-related lawsuits in Illinois, many artists would be barred from bringing similar claims because their rights likely fall under settlements like the one Warner Music Group Corp. reached with Suno last November.

Recording artists’ contracts often include language giving labels the right to use their voices, said Fox Rothschild LLP partner Cynthia L. Katz. “They don’t call it biometrics, but they lump it in with name-image-likeness rights that often specifically call out voice.”

There’s also a potential jurisdictional hurdle as plaintiffs have to demonstrate they have a connection to Illinois to pursue BIPA claims.

But new and creative claims are still worth pursuing, Kugler said.

“At this point no one knows, so you plead it and hope to prove it.”