In 2023, the song Heart on My Sleeve became a viral sensation featuring two recognizable voices, Drake and The Weeknd. However, neither collaborated on the single. According to Vice magazine, the song was entirely generated by artificial intelligence, at the direction of a social media user operating under the name Ghostwriter.
The ability of artificial intelligence to replicate human creativity with high fidelity is increasing, as are legal concerns regarding copyright infringement, false endorsement, and artists’ rights to their personas, reputations, and intellectual property. What legal strategies can protect parties in this new era?
Measuring AI Confusion
“Heart on My Sleeve” spread rapidly across social media platforms, and novel questions arose amongst listeners and litigators: Did listeners believe they were hearing an authentic Drake or The Weeknd performance? If a dispute arose, who might the parties be, and how might the celebrities or the platform recover commercial losses?
Likelihood-of-confusion surveys are used in trademark litigation as evidence of how consumers perceive source, sponsorship, or affiliation. Could a consumer survey be adapted to measure perceptions of AI-generated music? A likelihood of confusion survey would need to interview consumers of the relevant music genres; a relevant survey population would likely include listeners of hip-hop, R&B, or pop music, encompassing the broader market in which fans of Drake and The Weeknd reside.
Further, respondents would be divided into a test group and a control group. The test group would listen to the original version of “Heart on My Sleeve,” while the control group would hear an adapted version, in which the vocal characteristics and artist references were altered. Both groups would be asked who they believed wrote or performed the song. When properly designed and administered, a survey could isolate whether consumers attributed the performance to Drake, The Weeknd, both artists, or neither.
The AI-Generated Arts and Intellectual Property
AI arts disputes will shape how courts address these novel legal questions, which would include allegations related to copyright, false endorsement, and the protection of personal identity in the context of emerging technology. Consumer survey evidence may play an important role in shaping outcomes. Surveys can provide decisionmakers with insight into consumer perception, helping to determine whether AI-generated content misleads audiences or infringes on protected rights.
The Litigation Surveys and Consumer Sciences Group at IMS Legal Strategies designs and executes scientifically rigorous consumer surveys for use in trademark, false advertising, and other intellectual property disputes. Contact IMS for reliable litigation surveys and rebuttals.
