Warner Music signs distribution deal with AI generated music app Endel

By Hayleigh Bosher and first published on the IPKat 

AI and copyright is one of the hottest topics of the time in IP at the moment. This is hardlysurprising since it raises so many interesting questions about creativity and 
ownership. As Prof. Bernt Hugenholtz argued at the March Alicante Congress 
on AI and IP [reported here] that copyright protection – if any - for AI-generated 
works needs to be balanced against the overarching goals that such 
protection aims to achieve.

However, this has not stopped Warner Music signing a bundle of code to 
create 20 new albums this year! Warner Music is an American multinational 
entertainment and record label, the third largest in the global music industry, 
with artists from Ed Sheeran, Coldplay, Madonna to Led Zeppelin. 
The latest to be "signed" by the multi-billion dollar company, is an algorithm. 

Endel, developed by a start-up based in Berlin, creates tailor-made custom 
sound frequencies based on personal user inputs such as weather, time of day, 
location, and biometric details such as heart rate. 

 

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Evidently, Endel is not signatory 

to the contract with Warner, as such. 

The company has agreed a 50/50 

distribution deal, covering a total of 

20 albums that will be released 

throughout 2019 with Warner Music. 

(Cat SamplingImage: Andy Miccone

This is not the first time AI-generated 
music has created distribution deals. 
Aiva Music is a composition 
algorithm that famously became the 
first AI to register with a collecting 
society (SACEM) and 
recently partnered with Believe Distribution (owned by Song Records) to release 
its latest album. Sony also has its  Flow Machines project, which involves 
a algorithmic composition tool that is formally credited as a songwriter, 
producer, instrumentalist and/or vocalist in all of the tracks’ liner notes for its 
debut album 'Hello World'. However, the creators also include a list of 
human contributors who provided  songwriting, instrumentation, 
mixing and mastering support.

The Endel-Warner deal is a step forward in that there are no human collaborators
 in the generation of the new sounds. Nevertheless, a human - aside from 
obviously creating the AI - also had to, input sounds and data into Endel. 
Interestingly Stavisky describes the work as being "generated based 
on different combinations of inputs" rather than created. 

Some of these inputs, or instrumental stems, were created by Endel's 
co-founder and sound designer Dmitry Evgrafov. Each sound is then 
allocated metadata according to certain parameters which the app 
can read and use to generate a soundscape. So, whilst it might seem that 
the sounds are created with a click of a button, Stavisky explained that it 
took "1.5 years of work developing our algorithm and creating and 
tagging the stems.” 

In terms of copyright ownership, on a theoretical level some argue that 
the creator of the AI might be the owners of the outputs, others suggest that
 it could be the AI system itself. Other potential owners could be the creator 
of the "inputs" on the basis that this is the personality being expressed. 
Or, perhaps, the investor of the AI project on an economic justification 
of remuneration as encouragement.

Endel: "Personalized sounds to help you focus and relax"

In any event, for Warner and Endel, 
it was practical issue. Stavitsky said 
that  when Warner asked for the 
songwriter information in order to 
register the  copyright of the music, 
they decided to list the co-founders 
and  software engineers, saying 
“I am now credited as a songwriter 
even though I have no idea 
how to write a song."

 

So, whilst we are still discussing what we think the outcome should be in theory, 
in practice some are marching ahead on the basis that the copyright holders 
are the company founders and the AI engineers. At this stage, given the 
extensive skill, labour and effort that went into the development of Endel
 it might not be so controversial. But what happens if [when] it is a self-learning 
machine that doesn't require as much human effort?

So many other questions come to mind - is Endel sampling? Do they need 
a licence? Who would be liable if Endel created an infringing piece of music? 
All of the registered copyright holders? The specific engineer who input a 
copyright protected work? But it is only if Endel uses a substantial part of 
that work in a new song that it would be infringing. Are the engineers able 
to programme the system not to take a substantial part? As we well know,
 its not about quantity in which case that might be viable, but since it is 
something decided on "quality", on a case by case basis, it's not so straight 
forward.

The future for copyright and AI remains to be seen, but it appears 
that the time is ripe to be discussing such issues!

Lets Get It On...Trial - Another Copyright Infringement Case for Ed Sheeran

Hayleigh Bosher writing on the IPKat

Readers may remember a previous post about an ongoing case in the UK against Ed Sheeran, in relation to his is song "Shape of You". Over the pond, Sheeran is accused of copyright infringement of Marvin Gaye's "Let's Get It On" in his song "Thinking Out Loud".

There are two on-going cases relating to "Let's Get It On" and "Thinking Out Loud", before Judge Louis L Stanton in the New York Southern District Court. Neither of the cases are brought by the Gaye Estate. The song was recorded by Marvin Gaye, but was written by Ed Townsend who owned 2/3rd of the royalties for the song when he died in 2003. 

The first is between Structured Asset Sales (SAS) and Sheeran, his co-writer Amy Wadge and their record labels. SAS is a beneficial owner of one-third of all of the copyright rights of Townsend in all of his catalogue of works, including “Let’s Get it On.”

The second case is brought by Kathryn Townsend Griffin (biological daughter of Townsend, adopted as a child by other parents), and the Estate of Townsend. The latest judgement in this case was filed yesterday, here's what happened: 

Background

Townsend filled a complaint for copyright infringement in June 2018. In response Sheeran denied copying and applied for a Summary Judgement to dismiss the case on the grounds that 

1) the scope of the copyright protection is limited to the sheet music as deposited; 2) the songs are not substantially similar; 3) that any alleged similarities are not protected as commonplace elements; 4) that the plaintiff Kathryn Townsend Griffin lacked standing to bring the case since she was adopted by other parents. 

1) The Scope of Copyright Protection 

Add caption

In support of the application for copyright infringement, Townsend submitted the sheet music for LGO. Sheeran argued that the LGO deposit defines the scope of protection, pointing to a previous case (Wolfe v. Zeppelin 905 F . 3d 1116, 9th C 2018) that held the deposit of the plaintiffs work, rather than the sound recording, defined the scope of protection, since the purpose of the deposit is to identify the work in which copyright is claimed.

Both parties agreed that the LGO deposit copy includes the composition's key, meter, harmony (chord progression), rhythm, melody, lyrics, and song structure, but Townsend argued that the composition is embodied on the Gaye recording.

This is important because, as the court noted, hearing the percussion and bass increases the perception of similarity between the works. At this stage, the court left this question open.

2) Are the Songs Substantially Similar? 

Under US law, to prevail on a copyright infringement claim, a plaintiff must establish that the defendant has actually copied the plaintiff's work; and that the copying is of a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's. The test for substantial similarity is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.

In doing so the court considers, whether an average lay observer would recognise the alleged copy as having been appropriated from the copyrighted work. However, where a work has both protectible and unprotectible elements, the analysis must be more discerning, and involves extracting the unprotectible elements from the consideration. The Court then only asks whether the protectible elements, standing alone, are substantially similar.

In the present case, both parties submitted musicologist reports and agreed to some similarities between the songs such as the I - iii - IV-V harmonic progression, harmonic rhythm with anticipated

Ed Sheerans in the 
music video for TOL

second and fourth chords, melody , bass - line , and percussion. Parties dispute the similarity of the vocal melody, harmonic rhythm, harmony, bass-line and percussion. There is no claim of similarities between the lyrics or song structures.

The Judge noted that the key, tempo, meter, and genre of the two compositions are similar , but are unprotectable elements. Sheeran pointed to other elements - song structure , lyrics , and tone - to highlight the difference in "total concept and feel" between the works; submitting that TOL is characterised by somber, melancholic tones, about long-lasting romantic love, whereas LGO is a "sexual anthem that radiates positive emotions and encourages the listener to get it on".

In light of which, the judge held that the question whether TOL is substantially similar LGO should be determined by trial rather than summarily.

3) Is it Infringement or Are The Parts Taken Common Place?

Sheeran argues that the similar elements between the songs are not protected as commonplace elements. The parties dispute whether the basic I - iii-IV- V chord progression used in LGO is common place, or was commonplace prior to LGO. Townsend conceded that Sheeran's expert identified at least thirteen songs that predate LGO that use the same chord progression, and that it appears in at least two guitar method books. However, they noted that only a dozen or so were identified that contained this chord progression prior to LGO. 

Who you calling common place?
Photo: Isola greca

The parties also dispute whether the harmonic rhythm of that four-chord progression - the second and fourth chords being "anticipated" or placed ahead of the beat - is protectable. Sheeran says its a common place technique, Townsend claims its distinctive.

Both disagreements precludes summary judgment since the question of whether the elements warrant copyright protection is a factual question to be determined at trial.

4) Does the Plaintiff Have Standing?

Sheeran argued that the plaintiff Kathryn Townsend Griffin lacked standing to bring the case since she was adopted by other parents. However, the judge agreed followed the decision of the Superior Court of California which previously ordered that Kathryn was an intestate heir of Townsend

and thus entitled to 30% of the royalties from his music.

Lets Get It On Trial, Summary Judgement Denied

The summary judgement was denied because the judge said that the questions relating to the these issues needed to be decided by trial. This is common since the issue of substantial similarity is frequently a fact issue for jury resolution in the US.

A jury might side with either view; it may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between LGO and TOL. However, a jury could find several similarities between the two songs and therefore find Sheeran to be infringing.  

The case is very similar to another that the Gaye family bought against Robin Thicke and Pharrell Williams, where they succeeded in claiming "Blurred Lines" copied "Got To Give It Up". As a result, the Gaye family received a pay out of $5 Million and 50% of future royalties. So if Sheeran looses he could be face the same level of damages.

Katy Perry sued for copyright infringement, is Marcus Grey the Dark Horse?

his update from Hayleigh Bosher writing on the IPKat

Following this Kat's post on the Ed Sheeran copyright infringement case relating to the song "Shape of You" (here), she came across another similar dispute going on over the pond!

This case, brought in the US District Court of California, is between Plaintiffs Marcus Gray, Chike Ojukwu, and Emanuel Lambert who are Christian rap/hip-hop artists and Defendants Katheryn Elizabeth Hudson (Katy Perry), Jordan Houston (Juicy J), Lukasz Gottwald (Dr Luke) as well as a number of other individuals and music publishers. 

The allegation was first filed on the 1st July 2014, which claimed that the song “Dark Horse” infringed upon the Plaintiffs’ copyright in the song “Joyful Noise.” On 25th June 2018 the defendants filed a motion for a summary judgement and the Court hearing took place on 13th August.

Kitty Perry - by Molly Marshall

“Joyful Noise” appears on Gray’s 2008 album titled Our World Redeemed. The album debuted at #5 on the Billboard Gospel Chart, #1 on the Christian Music Trade Association R&B/Hip-Hop Chart and was nominated for a number of awards. There are at least five videos of "Joyful Noise” online which have a collective total of 1,365,041 YouTube views, 1,531,856 plays on Moore’s Myspace page and 933,868 on Gray’s Myspace page. 

“Dark Horse” was written by Walter, Gottwald, Sandberg, Perry, Hudson, and Houston in March 2013. The song charted at #1 in three countries, reached top 10 in almost 20 countries, and was nominated for Best Pop Duo/Group Performance at the 57th Annual Grammy Awards. The song sold 13.2 million units (combined sales and track-equivalent streams), becoming the second best-selling song worldwide in 2014.

Was there copying?

As in the UK, in order to establish copyright infringement, the plaintiffs must show (1) ownership of the copyright (not disputed in this case); and (2) that defendant copied protected elements of their work. 

The writers of “Dark Horse” claimed that they had never heard of any of the Plaintiffs or their music, including “Joyful Noise.” However, the Plaintiffs dispute the defendants’ claim and maintained that the defendants copied “Joyful Noise” when they wrote “Dark Horse.” Proof of infringement therefore required that (1) the defendant had ‘access’ to the plaintiff’s work and (2) that the two works are ‘substantially similar.’

1) Access

In order to prove access, the plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work. Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) a particular chain of events between the plaintiffs’ work and the defendants’ access to that work (such as through dealings with a publisher or record company) or (2) showing that the plaintiffs’ work has been widely disseminated.

In this case the Plaintiffs’ focused on widespread dissemination. The Defendants argued that this required a high burned of proof, and that that the mere existence of copyrighted materials on YouTube and Myspace would not justify an inference of access. However the Court stated that at this stage all plaintiffs must do is set out specific facts showing a genuine issue for trial as to whether there is a reasonable possibility that defendants had the chance to view the protected work. It recognised that whilst the mere existence of YouTube and Myspace videos did not justify an inference of access, but the Court was persuaded that the plaintiffs demonstrated more than just mere posting of “Joyful Noise” on the internet. 

As a result of millions of views of “Joyful Noise” on YouTube and Myspace, and the success and popularity of “Joyful Noise” in the Christian hip-hop/rap industry, a reasonable jury could conclude that there is more than a “bare possibility” that defendants—who are experienced professional songwriters—had the opportunity to hear “Joyful Noise.” In addition, it did not matter that the song did not receive commercial success, since it did achieved critical success, including a Grammy nomination.

[On a side note, comparing this to the Sheeran v Switch case - Switch went for varying degrees of both approaches in that they argued the two had mutual friends and that the 'Oh Why' song was on several platforms, but his YouTube video only has 41,122 views and there's no Grammy nomination...]

But back to the matter at hand - having convinced the Court that there was a reasonable possibility that the writers had access to the work, the next question was whether or not the songs were substantially similar. 

2) Substantial Similarity

Kitty Kat performing on stage... - Matt Buck

To determine, for purposes of summary judgement, whether two works are substantially similar, a two-part analysis is undertaken - an objective extrinsic test and a subjective intrinsic test. 

The Plaintiffs relied on a musicologist report, which stated that the “most obvious, pervasive, and substantial similarity” between the two songs is a “descending ostinato 8 figure which serves as the primary formal building block for both tracks.” It went on to say that the ostinatos in both songs are identical, both ostinatos are nearly identical in pitch content and melodic contour as is the mechanical style, and that the timbre of the upper and primary voice are remarkably similar.

However, the Defendants relied on the report of their own musicology expert who opined that “‘Dark Horse’ does not share any significant structural, harmonic, rhythmic, melodic, or lyrical similarities, individually or in combination, with ‘Joyful Noise.’” 

The Court found that the Plaintiff’s expert testimony was sufficient to raise a genuine issue of material fact as to substantial similarity, as it identified particular features of the works which, taken in combination, could support a finding of substantial similarity by a reasonable jury. 

As such, the Court concluded that the defendants’ motion for summary judgement was denied... and we wait to see how this one plays out!