How the BPI action against Jammable highlights the conflict between rights-holders and generative AI

The UK’s recorded music trade association, the BPI, has publicly threatened legal action over AI voice cloning technology Jammable, previously known as Voicify (the company did not respond to a request for comment from Music Week). It comes as the music industry continues to grapple with the rapid growth of generative AI technology. Together with other recent AI copyright infringement cases, this latest action might signal the beginning of the end of the ‘Wild West’ era of unlicensed AI music generation. Here, Nick Eziefula (partner, pictured above), Andrew Wilson-Bushell (associate) and Catherine Clover (trainee solicitor), music, AI and copyright lawyers at specialist media and entertainment law firm Simkins, look at the implications of the BPI action… Jammable uses voice models to allow its customers to strip out vocals from recorded music and insert AI generated vocals mimicking the sound of an artist’s voice. Jammable has built up an extensive library of thousands of voice models including Rihanna, Drake and Taylor Swift. The BPI argues that this involves using recordings owned by its members to train the model and that, without permission from those owners, Jammable is infringing copyright. The BPI’s case is persuasive. For AI models to generate output, they must be trained using extensive data sets. It is hard to see how AI cloning of well-known artists’ voices can be achieved without using recordings of those voices. In the UK, the sound of a voice cannot be copyright protected but a recording of that voice might well be and, in the case of well-known artists, the recordings are highly likely to be copyright works, owned by the artist or their label. Broadly speaking, the use of a copyright work without the owner’s permission will be copyright infringement unless any of the relevant exceptions or defences to copyright infringement apply. The question is whether any of those might be relevant to the use of recordings as training data in this way. Although UK law does involve an exception for text and data mining, it is currently limited in scope and is unlikely to permit broad use of this kind. Exceptions for parody, caricature and pastiche may be more relevant to this scenario, but they all require “fair dealing”, and only apply to limited use, for particular purposes (such as for criticism, review, or reporting events). Whilst we do not yet have a definitive case applying these principles to the AI training scenario, semi-analogous cases in other situations indicate that courts do not apply these exceptions to infringement lightly, nor often. Generative AI is the latest step-change, but lessons learned from the last one are pertinent Simkins The legal position is complicated by the fact that international laws in this area are not fully cohesive. In the EU, similar copyright exceptions apply, although the EU approach to text and data mining, whilst potentially broader, involves an opt-out mechanism, enabling copyright owners to determine whether the exception is even available in relation to their works. The US law concept of “fair use” is typically more permissive than the UK’s “fair dealing”. As yet we have no concrete guidance or case law applying this to the use of AI training data but that may soon change – last year, the New York Times sued OpenAI and Microsoft in New York for copyright infringement for allegedly using the newspaper’s content to train its AI tools. The case is ongoing and the outcome will be significant. Similarly, in the UK, Getty Images took legal action against Stability AI for allegedly using millions of copyright images to train its AI model, Stable Diffusion. Getty has accused Stability AI not just of copyright infringement but also breach of trademark and database rights and passing-off (a form of claim based on misappropriation of a brand identity). While we await decisions in these cases, some direction has been given in Europe by the passing of the EU AI Act. The new rules will require “general purpose AI models” to meet transparency requirements and to comply with EU copyright law. For example, generative AI platforms will need to publish a summary of information about the content that was used to train their model, which will likely deter unauthorised use and facilitate copyright owners’ efforts to pursue infringers. As far as we are aware, no formal legal proceedings have yet been issued by the BPI as at the date of this article but, by issuing press releases about its intended action, the BPI has effectively taken the matter straight to the court of public opinion. This confident approach seems to have had an impact, as Voicify has changed its branding to Jammable and big-name voice-models such as that relating to Rihanna seem to have been removed from the platform. The music industry has long had to adapt to changes in technology. Generative AI is the latest step-change, but lessons learned from the last one are pertinent. The widespread adoption of file-sharing technology was disruptive almost to the point of destruction. The recorded music business was eventually restored through a multi-faceted approach: clamping down on unauthorised use through legal action (against platforms such as the infamous Pirate Bay); legislative change; and the development and licensing of lawful services that offer consumers a quality customer experience. In summary: enforce, enact, embrace, evolve. We are beginning to see examples of such enforcement and enactment in relation to generative AI. We can expect soon to see licensing regimes that embrace the change, as business models evolve.

Charts analysis: Taylor Swift scores fourth No.1 single and third chart double

Taylor Swift simultaneously registers her 12th No.1 album, The Tortured Poets Department (TTPD), and fourth No.1 single, with lead track Fortnight (feat. Post Malone). It is her third chart double. Far out pacing the chasing pack – including all 30 of the other tracks on the album – Fortnight enjoys a terrific first week, achieving consumption of 93,451 units (1,534 digital downloads, 91,917 sales-equivalent streams), the highest figure for a No.1 single this year. It is also the highest of Swift’s career, replacing the debut week of her introductory (2017) No.1, Look What You Made Me Do (88,247 sales). Swift’s fourth No.1, Fortnight is the second No.1 and 34th hit in all for rapper Malone, who previously reached the summit in 2017 with 21 Savage collaboration, Rockstar. Swift also bags a No.3 debut with the TTPD’s title track (60,243 sales) and a No.4 debut (59,225 sales) with Down Bad. Under primary artist rules, only the top three are allocated chart positions – but the 28 other tracks on TTPD are ‘starred-out’ between No.4 and No.32, while all are among the top 65 titles in the Top 200 Combined Tracks chart, where neither VAR or primary artist rules are in operation. Of those missing the cut, the top titles are: I Can Do It With A Broken Heart (58,271 sales), So Long London (57,946 sales) and My Boy Only Breaks His Favorite Toys (54,959 sales). The least popular track is Robin (14,590 sales). They all help to massively increase Swift’s already incredible career singles consumption, which rises 1,426,710 units week-on-week to 76.689,117. Although all of Swift’s albums suffer reduced consumption as TTPD takes precedence, her career album consumption is up 298,209 units week-on-week to 9,105,235 units. Its two-week run at No.1 rudely curtailed, Too Sweet slips to No.2 (66,073 sales) for Hozier. Swift has now had 73 Top 75 entries, 54 Top 40 and 29 Top 10 hits putting her second to Madonna in the first two categories amongst women, and fourth behind Madonna, Kylie Minogue and Rihanna in Top 10 hits by females. On a more whimsical note, Swift spends much of her time on TTPD dissing two British former boyfriends, if the tabloids are to be believed, and she also seems to have absorbed some English idioms and words, not least Fortnight itself. The term, commonly used here for two weeks or 14 days, is rarely heard in America, and has never been used in the title of a hit song before, although most other words for the passage of time have, with second (first used on a hit title in this context in 1989), minute (1962), hour (1963), day (1953), week (1960), month (1995), year (1965), decade (2004) and century (1973) all preceding it. Fortnight has been used in some hit lyrics previously, including Bitch (No.2, 1971) by The Rolling Stones, Just Checkin’ (No.59, 2000) by The Beautiful South and Samantha (No.63, 2017) by Dave & J Hus. Swift mentioned whiskey in her 2017 No.15 hit Gorgeous but not on Fortnight, ending the sequence of No.1 hits using the word ‘whiskey’ in their lyrics (Texas Hold ‘Em and Too Sweet). The only drink-related lyric in Fortnight is ‘functioning alcoholic’. Espresso became Sabrina Carpenter’s first ever Top 10 hit last week, and continues to grow, advancing 6-5 (58,053 sales). The rest of the Top 10: Beautiful Things (2-6, 49,161 sales) by Benson Boone, I Like The Way You Kiss Me (3-7, 48,067 sales) by Artemas, Lose Control (4-8, 42,174 sales) by Teddy Swims, Texas Hold ‘Em (5-9, 36,133 sales) by Beyonce and Austin (7-10, 35,050 sales) by Dasha. Their chart positions negatively impacted by Taylor Swift’s Top 10 triple, the tracks by Boone, Artemas and Dasha nevertheless increase consumption. Taking their leave of the Top 10: We Can’t Be Friends (Wait For Your Love) (8-11, 28,748 sales) by Ariana Grande, Illusion (9-19, 20,526 sales) by Dua Lipa and Forget About Us (10-31, 15,348 sales) by Perrie. Drake’s new diss song Push Ups debuts at No.14 (23,328 sales), becoming the Canadian rapper’s 143rd Top 75 and 94th Top 40 hit. With two joint Top 10 hits to their credit – Audacity in 2019 and Ain’t It Different in 2020 – London rap heavyweights Stormzy and Headie One have joined forces again for Cry No More. Debuting at No.33 (14,471 sales), the track also features US producer Tay Keith. It is Stormzy’s 44th Top 75 single, Headie One’s 28th and Keith’s second. Two foreign language hits impact the Top 75 for the first time this week: Gata Only (76-58, 8,882 sales), is the Spanish language introductory hit of reggaeton artists FloyyMenor (18-year-old Alan Felipe Cepeda Galleguillos) and Cris MJ (22-year-old Christopher Andrés Álvarez García), possibly the first Chileans to make the chart. Meanwhile, Pedro (No.67, 7,953 sales) is an Italian language hit by Jaxomy, Agatino Romero & Raffaella Carra. The first hit for German DJ and producers Jaxomy (from Berlin) and Romero (Hamburg), it is effectively a remix of Carra’s 1980 No.5 Italian hit whose titular hero is cast as a juvenile tourist guide in New Mexico, and is namechecked no fewer than 64 times in the 2m 24s song. It is the second UK hit for Carra - who died in 2021 – exactly 46 years after her first, Do It, Do It Again, which reached No.9 in 1978. Also new to the chart: Malicious Intentions (No.41, 11,443 sales), the second hit for Croydon drill/rap artist Pozer; Starburster (No.62, 8,683 sales), the first hit for Dublin band Fontaines DC; and Joga Bonito (No.69, 7,495 sales), the 30th hit for London rapper AJ Tracey. Shaboozey’s rap/country hybrid, Bar Song (Tipsy) surges 41-16 (22,224 sales), while 19-year-old Philadelphia singer/rapper Lay Bankz’s Tell UR Girlfriend, jumps 31-19 (20,921 sales). Both are first hits on their second week in the chart. There are also new peaks for: Belong Together (13-12, 27,116 sales) by Mark Ambor, Good Luck Babe (33-21, 19,100 sales) by Chappell Roan, We Ain’t Here For Long (52-47, 10,446 sales) by Nathan Dawe, Cry (68-55, 9,582 sales) by Benson Boone and Outside Of Love (62-59, 8,838 sales) by Becky Hill. Overall singles consumption is up 2.22% week-on-week to 29,802,552 units - their highest ever level, and 11.72% above same week 2023 consumption of 26,677,015, units. Paid-for sales are up 15.25% week-on-week at 305,776 – 1.05% below same week 2023 sales of 309,006.

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