The Lawsuit
Another week, another lawsuit against generative AI. This time, a group of music publishing companies, including Concord Music Group, Inc., ABCKO Music, Inc., and Universal Music Group (“Plaintiffs”) sued AI start-up Anthropic PBC (“Anthropic”) on October 18, 2023, in the United States District Court for the Middle District of Tennessee “to address the systematic and widespread infringement of their copyrighted song lyrics” by Anthropic. See Concord Music Group, Inc. et al v. Anthropic PBC, M.D. Tenn, 3:22-cv-01092, ECF No. 1 at ¶ 1.
They allege that Anthropic copies Plaintiffs’ copyrighted song lyrics and its AI chatbot, Claude, then generates those lyrics in response to user prompts—all without a license. This practice, they allege, harms not only Plaintiffs’ interests, but also the interests of those music lyric aggregators and websites that provide similar services, but with a proper license from Plaintiffs.
Plaintiffs further allege that Claude generates their copyrighted lyrics even in the absence of a user’s express prompt to do so and in response to more general requests, such as when users ask it “to write a song about a certain topic, provide chord progressions for a given musical composition, or write poetry or short fiction in the style of a certain artist or songwriter.” Id. at ¶ 10. For example, in response to a prompt asking Claude to write poetry in the style of Lynyrd Skynyrd, Claude “responds by providing a nearly word-for-word copy of the lyrics to ‘Sweet Home Alabama,’ in violation of Universal’s rights[.]” Id. at ¶ 78.
Claude’s reproductions of Plaintiffs’ copyrighted lyrics are often done, Plaintiffs allege, without providing critical copyright management information, such as the song title or songwriter, denying Plaintiffs the acknowledgement they are due. For example, when asked to write a song about “Born to Be World,” Claude responds with the lyrics of Mars Bonfire’s “Born to Be Wild,” stating: “Here is a song I wrote about being born to be wild[.]” Id. at ¶ 87.
Plaintiffs describe their lawsuit as presenting “straightforward and long-standing” legal issues: “A defendant cannot reproduce, distribute, and display someone else’s copyrighted works to build its own business unless it secures permission from the rightsholder.” Id. at ¶ 2. Plaintiffs state that AI technology is no differently situated than the traditional printing press or copy machine, and must adhere to these foundational principles of copyright law.
Predictions & Recent Rulings
The Anthopic lawsuit builds upon several other copyright infringement cases recently brought by content creators against generative AI technologies. While many of these lawsuits are in the initial stages of litigation, defendants are sure to assert “fair use” and constitutional defenses should plaintiffs’ claims survive pleadings. The application of these defenses to AI technology is far from certain, though recent decisions are shedding some light on how courts are likely to view these issues.
In its last term, the Supreme Court ruled that the late Andy Warhol infringed on photographer Lynn Goldsmith’s copyright when he rendered silkscreen prints of Goldsmith’s photograph of the late singer Prince. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 143 S. Ct. 1258 (2023).
The ruling focused on one question: whether the first factor in a fair use analysis, the purpose and character of the use, barred Goldsmith’s claim. Id. at 1273-74. The Andy Warhol Foundation argued that the purpose of Warhol’s work was “transformative” and conveys a different meaning or message than Goldsmith’s photograph. Id. at 1273. But the Court tilted the scales in a different direction, instead giving great weight to whether the work was commercial in nature:
[T]he first fair use factor considers whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree, and the degree of difference must be balanced against the commercial nature of the use. If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying.
Id. Finding that Warhol’s use of Goldsmith’s photograph had a clear commercial purpose, the Court affirmed the Court of Appeals’ ruling for Goldsmith on the first “fair use” factor. Id. at 1258.
But a more recent decision from the District of Delaware declined the plaintiff’s invitation to give greater weight to commercialism. Thomson Reuters Enter. Ctr. GmbH v. Ross Intel. Inc., No. 1:20-CV-613-SB, 2023 WL 6210901, at *7 (D. Del. Sept. 25, 2023). In Ross, Thomson Reuters sued Ross Intelligence, an AI-powered legal research platform, claiming Ross copied content from its legal-research platform Westlaw to train its own systems. While the court recognized that Ross’s use of Westlaw’s content was “undoubtedly commercial” in nature, the court “decline[d] to overread” the Goldsmith decision, especially because the [Supreme] Court recognized that ‘use’s transformativeness may outweigh its commercial character.’” Id. (citing Ross, 143 S. Ct. at 1280). The court concluded that “the first fair use factor comes down to the jury’s finding of transformativeness.” Id. at *8. Given the Supreme Court’s focus on commercialism in Goldsmith, striking a balance between transformative use and commercial nature is likely to play a role in the Anthropic lawsuit and other generative AI lawsuits in the near future.
