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Artificial Intelligence Ushers in the Era of Music Moneyball (Guest Column)

Entertainment litigator James Sammataro explains why non-human creation shouldn’t be dismissed as merely monkey business.

Monkeys cannot create copyrightable works. This is an actual rule. Seriously.

In 2011, British photographer David Slater was photographing a troop of macaques when Naruto, a six-year-old, smiled into Slater’s lens, pressed the shutter button, and captured this toothy selfie:

After going viral and popping social media metrics rivaling Ellen DeGeneres’ Oscar-selfie, the photo was posted on Wikipedia. Slater fired off a cease-and-desist letter, but Wikipedia refused to take down the photo because a monkey, not a human, created it. PETA jumped into the fray and sued Slater to establish Naruto’s ownership of his selfie. After entertaining some giggle-inducing, “monkey-see, monkey-do” briefs, a federal court held that Congress did not intend to extend copyright protection to works created by animals. A recent settlement – in which Slater will donate a portion of future royalties to conservation charities – mooted the Ninth Circuit appeal. Nonetheless, this seemingly frivolous lawsuit has significant consequences.

Following the “Monkey Selfie” decision, the United States Copyright Office compendium amended its eligibility requirements. “Photograph[s] taken by a monkey” were excluded. The Copyright Office also declared 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” were ineligible. Copyright requires a human touch.

This means musical works purely created by artificial intelligence (“AI”) are not protected by copyright law. Sounds like far-fetched sci-fi? Not to the music industry. Algorithmic music is not new: it is fifty years in the making. AI has been steadily infiltrating the music industry’s

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