Peter Cramer
Last summer, a California jury found that Katy Perry’s 2013 hit “Dark Horse” infringed “Joyful Noise,” a 2008 song by rapper Flame, despite the defendant’s claim to never have heard “Joyful Noise” before and the relative simplicity of the disputed element of the song.[1] The suit was part of a current wave of claims against pop stars by lesser-known artists, such as rapper DOT’s suit against Ariana Grande, claiming her song “Seven Rings” copies the chorus of his song “You Need It I Got It.”[2] These suits have caused widespread fear in the music industry, even forcing some well-intended songwriters to purchase insurance or even not release songs they worry are too similar to others that they discover after the fact.[3]
Damien Riehl and Noah Rubin, a lawyer and coder duo, have responded to this litigious trend by using a specially built algorithm to generate more than 68 billion music files, representing every possible melody that uses the eight most common notes in popular music and is limited to twelve notes or less.[4] Of course, many of these melodies have already been written by other artists, and many will have no musical appeal to the human ear. But by generating them, fixing them in a hard drive, and releasing them using a Creative Commons Zero license (reserving no rights for themselves and functionally putting them in the public domain), Riehl and Rubin have attempted to make all possible new melodies free for all artists to use without fear of infringement suits.
Whether Riehl and Rubin actually own the melodies created autonomously and automatically by their algorithm is doubtful, however. Though the UPSTO is collecting comments on the possibility of artificial intelligence owning the intellectual property it generates,[5] the Copyright Office’s position is that works “produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author” are not protectable,[6] and similarly, courts have suggested that only humans can be authors.[7]
But Riehl and Rubin’s point, they say, is not actually to obtain legally sound copyrights, but to illustrate that there are a finite number of ways to combine notes to create pop melodies, and these combinations existed before any songwriter actually put them to paper.[8] All of these melodies can be generated and represented mathematically, suggesting that writing the melody for a pop song is, in some ways, a lot like selecting and portraying a pre-existing—and non-copyrightable—mathematical fact. Riehl and Rubin hope this perspective can help spur legislative change to the copyright system for music—they don’t actually expect or want their project to adjudicated in court.[9]
In the meantime, artists will have to make do with the current system, relying on judges and juries to strike a balance between protecting against infringement and chilling the creation of new music. While the trend seems to be concerningly towards the latter, at least Katy Perry has reason to celebrate: Earlier this month, Judge Christina Snyder overruled the jury’s verdict against Perry, finding that the elements allegedly infringed were not “particularly unique or rare” and so were not protectable expression.[10]
[1] Gray v. Perry, No. 2:15-cv-05642-CAS (JCx) (C.D. Cal.).
[2] Stone v. Grande, No. 1:20-c-00441 (S.D.N.Y.).
[3] Amy Wang, How Music Copyright Lawsuits Are Scaring Away New Hits, Rolling Stone (Jan. 9, 2020), https://www.rollingstone.com/music/music-features/music-copyright-lawsuits-chilling-effect-935310/.
[4] Alexis C. Madrigal, The Hard Drive With 68 Billion Melodies, The Atlantic (February 26, 2020), https://www.theatlantic.com/technology/archive/2020/02/whats-the-point-of-writing-every-possible-melody/607120/.
[5] Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation, 84 Fed. Reg. 58,141 (Oct. 30, 2019).
[6] U.S. Copyright Office, Compendium of U.S. Copyright Office Practices §313.2 (3d ed. 2017).
[7] See Naruto v. Slater, No. 15-cv-04324-WHO (N.D. Cal. Jan. 28, 2016), aff’d 888 F.3d 418 (9th Cir. 2018).
[8] Samantha Cole, Musicians Algorithmically Generate Every Possible Melody, Release Them to Public Domain, Vice (Feb. 25, 2020), https://www.vice.com/en_us/article/wxepzw/musicians-algorithmically-generate-every-possible-melody-release-them-to-public-domain.
[9] Madrigal, The Hard Drive With 68 Billion Melodies.
[10] Gray v. Perry.