The “Fake Drake” Debate: Does AI-Generated Music Which Mimics an Artist’s Sound Infringe on Intellectual Property Rights?

​The use of artificial intelligence (AI) to create various forms of media raises interesting legal issues relating to the protection of intellectual property. Generative AI is being used to create songs that have vocals and other characteristics that mimic the sound and style of famous musicians. Recently, AI was used to create a song that listeners would understand was created by musicians Drake and The Weeknd. This song has come to be known as the "Fake Drake." Whether the Fake Drake violates intellectual property rights is an open question, and the commercialization of such songs may implicate an artist's right of publicity.

What You Need to Know:

• Generative AI is a type of AI technology that is used to create content, such as images, songs, and written text.
• Recently, generative AI has caused a media stir because of its use to create songs that mimic aspects of songs created by famous musical artists.
• The use of AI to create such songs does not seem to be prohibited by the Copyright Act, but may be protected under a state's right of publicity laws.
• The right of publicity protects against, among other things, the unauthorized use of an individual's name, image, or likeness for commercial purposes.

AI is no stranger to the media and entertainment industries. If you use social media, it is likely that you have received AI-created content suggestions and targeted ads (yes, you really did need those socks adorned with the face of your adorable puppy). Or, you might have watched videos which use AI to create "deepfakes." Deepfakes are a type of media that digitally manipulate, alter, or replace a person's image or voice, including to make a person appear or sound as if they are somewhere or someone else. But until recently, you may not have heard of AI being used to mimic the sound and style of a particular musician – from the literal tone or cadence of an artist's voice, to the typical bassline of an artist's track.

Insert "Heart On My Sleeve," a track streamed more than 20 million times last month. This song purported to be the latest drop from musicians Drake and The Weeknd. It was unmistakably Drake – from witty lyrical references to ex-girlfriends and his hometown of Toronto, to a bassline that inevitably stuck in your brain for days. Except it wasn't Drake. It was AI software trained to think, write, and rap like Drake. How does the technology work? Put simply, the AI was trained to create Drake-like music by studying every facet of existing Drake songs.

Is this use of AI an infringement of Drake's copyrights? Probably not. While Drake's voice and typical style were intentionally mimicked, no protectable elements of Drake's existing songs – think lyrics or melody – were "copied" in the literal sense. In fact, the Copyright Act allows for "soundalikes." However, that may not be the end of the inquiry. While the creator of the "Fake Drake" may not be liable for copyright infringement, he or she may have violated Drake's right of publicity.

According to the International Trademark Association, the right of publicity is "an intellectual property right that protects against the misappropriation of a person's name, likeness, or other indicia of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit." Seehttps://www.inta.org/topics/right-of-publicity/ (last visited June 2, 2023).

Unlike the Copyright Act and Patent Act, for example, there is no federal statute that protects an individual's right of publicity. Instead, those protections are enshrined by state laws. Not every state, however, has enacted right of publicity laws. Notably, California and New York – which have substantial media and entertainment industries – have such laws in place. See Cal. Civ. Code § 3344 ; N.Y. Civ. Rights Law §§ 50-51. As pertinent to this discussion, California's right of publicity statute protects against the use of a person's name, voice, or likeness without their consent and for commercial purposes. Cal. Civ. Code § 3344(a). Protection of the right of publicity can extend to the deceased as well. See e.g., Cal. Civ. Code § 3344.1; N.Y. Civ. Rights Law § 50-f. Notably, it does not appear that "Heart On My Sleeve" was used to advertise or sell products or services.

Nevertheless, right of publicity laws have been used by celebrities to protect arguably their most valuable asset, their identities. Some well-known examples which you may be familiar with are listed below:

• Actress Katherine Heigl, who rose to superstardom in her role as Dr. Izzie Stevens on the television show Grey's Anatomy, was photographed by paparazzi as she exited a Duane Reade drugstore in New York. Duane Reade then used the photo to promote its brand by posting it on social media with the caption "Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite [most convenient] drugstore." The actress sued the company for violating her right of publicity.
• NBA star Lebron James jokingly took a Great Lakes Brewing Co. beer from a court-side vendor during a playoff game. A photo of the interaction went viral and the beer company shared it on its social media. The basketball star threatened a lawsuit for violating his right of publicity.
• Rapper Ice Cube sued stock trading app Robinhood for allegedly advertising their app using a photo of him with the caption "Correct yourself, before you wreck yourself," a tweaked version of a hit lyric from Ice Cube's song "Check Yo Self."

While AI-generated music like the Fake Drake is not the subject of right of publicity litigation, it is hard to imagine that lawsuits will not follow if such AI-generated songs are used for commercial purposes. The use of generative AI to create music that sounds like an artist could negatively impact the artist's business and possibly be used to damage their reputation. We anticipate seeing these issues continue to make headlines and arise in courtrooms in the future.