Media Companies: To Litig-AI-te or License? How to Decide (& The State of GenAI Law)
Leading IP Litigator Chad Hummel (McKool Smith) & Moiya McTier (Human Artistry Campaign) Join Me for An Important & Enlightening Discussion
Yes, your favorite part of Monday mornings is here — your weekly genAI/media brAIn dump! First, “the AI:10” - the 10 key generative AI related media and entertainment headlines from last week. Next, “the mAIn event” - my headline story (another exclusive AI video roundtable discussion). Then, a clip where I discuss new ways for established artists to monetize their content as “building blocks” using genAI. And it’s baaack! My genAI video of the week (a state of the art music video). Finally, “the AI case tracker” - updates on the key generative AI-focused copyright infringement cases.
As always, you can listen to this week’s “the brAIn” companion podcast episode via this link!
You can find all episodes on all major podcast platforms including Apple and Spotify. Please follow it, rate it, and share it. I record it myself (so you get my “flavor”). No AI/synthetic voices here!
I. the “AI:10” - last week’s 10 key AI headlines
(1) You knew there would be a featured generative AI Olympics story this week. You just did. And here it is. Google’s generative AI-focused ad for the Olympics went viral for all the wrong reasons. Instead of being sentimental (its apparent intent), it was both “artificial heart”-felt and tone deaf. Let’s face it. The Olympics are all about real human emotion. And generatively created notes from fathers to athletes about their daughters aren’t exactly the real thing. Come on dads out there. You can do better! Read more here. We need more “AI”lympics stories — and here’s another one. From training to broadcasting, AI has its artificial fingerprints all over this year’s international mega-fest for the first time. Read more here about 3 ways AI is changing this year’s Olympics.
(2) The “smoking gun” left them no choice! Leading Silicon Valley-backed generative music companies Suno and Udio finally conceded, in new court documents, what we all already knew — i.e., that they train their AI models on mass swath of unlicensed music. No reason for them to be coy anymore, since one of Suno’s early investors, Antonio Rodriguez of Matrix Partners, infamously said this quiet part out loud: “Honestly if we had deals with labels when this company got started, I probably wouldn’t have invested in it. I think that they needed to make this product without the constraints.” “Constraints” — apparently that’s what content IP is to that VC. It’s all just rock and roll to him! Read more here.
(3) But Google’s AI-lympics antics aren’t the only generative AI big tech fail - Meta joins the club. Zuck’s company just scrapped its celebrity AI chatbots for lack of interest. Apparently superfans also want the real thing. Read more here. At the same time, Meta slyly dropped a new generative AI model for video and images called “SAM 2.” Read more here, straight from the horse’s mouth (i.e., Meta’s announcement). And relatedly, previous AI celebrity chatbot darling Character.AI effectively sold itself to Google. Apparently AI and celebs are not the match made in heaven that Silicon Valley believed it to be. Read more here.
(4) Microsoft - yes OpenAI’s “owner” - calls for new laws on AI-generated deepfakes. Now read more about it here. And, Senator Amy Klobuchar (from my home, great state of Minnesota) joined a bipartisan group of Senators to introduce the “NO FAKES ACT,” which would create a new federal IP right that allows victims of nonconsensual deepfakes and voice clones to have them taken down and sue. The Act is supported by the Human Artistry Campaign, of course. Read more here.
Oh yes, and relatedly, OpenAI pledges to give the U.S. AI Safety Institute early access to its next model. Has CEO Sam Altman found new religion? My Magic 8-Ball says “signs point to doubtful.” But let’s be optimists! Read more here. And one more important safety issue development worth noting — the Copyright Office tells Congress that there is an “urgent need” to outlaw AI-powered impersonation. Read more here.
(5) Microsoft and TikTok — two great tastes that taste great together? Apparently! TikTok’s spending reportedly drives the giant’s booming AI business, which means TikTok also drives OpenAI’s business (since Microsoft is OpenAI’s biggest investor). Read more here. But what happens if the TikTok ban gets real? Talk amongst yourselves.
(6) If Pink Floyd’s third member can’t do it, maybe AI can? Nick Mason, the legendary band’s drummer (whom I interviewed by the way - you can watch it here), said that perhaps an “AI situation” could bring feuding bandmates David Gilmour and Roger Waters together to make new music. In other words, maybe pigs really can fly! Read more here. (Love music? Listen to my “The Story Behind the Song” podcast on all major platforms. Guests range from Debbie Harry to Brandon Flowers of The Killers. From Don McLean (“American Pie”) to Billy Idol to The Shins. You’ll dig it.)
(7) It’s not a game. It’s a sad state of AI-ffairs. Once again, we now see more Hollywood pAIn. Now video game performers are on strike, largely due to issues related to generative AI. Read more here.
(8) It’s simply unnatural … and it shows. Take a look at what happens when AI models train on AI-generated material (what is known as “synthetic” content). The results ain’t pretty. See and read more here. What does this mean? Generative AI companies real, human, quality content. Content owners, hear that? They need you. The appetite is voracious. I’m deep in the thick of a new solution for you. Reach out to me to tell you more (peter@creativemedia.biz).
(9) Maybe not that innocent? Canva — the seemingly innocuous design platform from the land down under — reportedly plans to acquire an AI startup criticized for generating deepfake porn. Read more here.
(10) It’s Cuebric, not Kubric, to you! The leading generative AI virtual set pre-visualization company just released “Generative Mesh,” a new tech package that “aims to revolutionize digital background creation and environment-building.” Read more here.
II. the mAIn event - The State of Generative AI Law: The Key Cases & Why They Matter (Experts Weigh In)
A few days ago, I organized and moderated an important roundtable discussion for Digital Hollywood with two leading experts and voices in the world of generative AI, media and entertainment — and how those worlds collide amidst critical copyright issues. All of you who read my “stuff” know where I stand. I welcome new technology (I led several pioneering tech-forward media companies, in fact), but that tech must be done right. That means properly licensing the IP that is used for generative AI training — not just taking it.
I was joined by Chad Hummel of McKool Smith, perhaps the best and most successful IP and complex litigator on the planet, and by Dr. Moiya McTier, the spokesperson for the Human Artistry Campaign (an organization that represents over 200 media and entertainment organizations).
Watch it to learn more about these critical issues — and where they are going in the courts. It impacts all of us across media, entertainment and tech.
And here’s a fascinating excerpt from the roundtable, where attorney Chad Hummel lays out how he counsels his clients about deciding whether to license now — or instead go to court to get the compensation they believe they deserve..
What do you think? Send me your feedback and reach out to me at peter@creativemedia.biz and check out my firm Creative Media.
III. generative AI’s groundbreaking creative possibilities: content “building blocks” for fans to create (and monetize … for Artists)
I recently joined Curt Doty on his podcast to discuss how established artists and content franchises can use generative AI to give their fans their creative "building blocks" on top of which to build and create their own new creative works (and then share in the economics created by those new derivative works). Innovative artist Grimes is Exhibit A - she created her Elf.Tech platform to do just that - making her music stems and voice freely available to her fans. Her only requirement is to share 50% in any revenues flowing from the commercial success of her songs. And that in no way cannibalizes Grimes' own entirely new works - her fans still await them.
To be clear, this is an exciting new generative AI-enabled opportunity for established Artists and IP franchises. Not so much for emerging Artists and future franchises. But in these cases (Grimes, etc), the Artist and rightsholder has full control to set the rules of the game. It’s their choice to do this and enable their content to be scraped.
That is completely different than generative AI companies simply taking the content they want -- without license or consent -- to give their technology the "food" it needs. That is not "fair use." And I believe the courts ultimately will see it that way.
That's why we need to establish an industry wide solution that shares in the new generative AI economics fairly (and also give the Artists and rights-holders the opportunity to say "yes" or "no" to whether they want their content/IP to be part of the scraping game).
I'm working with others right now to do just that. Stay tuned.
IV. the generative AI video of the week - music video for the song “
Watch this video from artist Hardy. What do you think?
Here’s some background about it from David Usher, a voice I have come to respect via his LinkedIn posts. This is what he says about the video:
“A full AI music video that works. You have to wait for the 2:44 minute mark when it opens up, but we are starting to see how the tech is really developing to create usable clips. To build something like this old school would have cost a fortune —cameras, location, DP, catering, VFX etc etc. From my music days, our most expensive video cost $250,000.00, paid by EMI but recoupable from us, the artists, of course.”
V. the AI legal case tracker - updates on key AI litigation
I lay out the facts - and the latest developments - via this link to the “AI case tracker” tab on “the brAIn” website. You’ll get everything you need (including my detailed analysis of each case) of the cases listed below. Lots of legal AI-ctivity this past week! Generative music services Suno and Udio try their best in court to defend their relentless — and now officially conceded — unlicensed scraping of music. They just filed Answers to the major music labels’ lawsuits against them. But we know they’ll settle. Read more in my AI case tracker (which will also soon include an update on one of the Sarah Silverman court cases).
(1) The New York Times v. Microsoft & OpenAI
(2) UMG Recordings v. Suno
(3) UMG Recordings v. Uncharted Labs (d/b/a Udio)
(4) Universal Music Group, et al. v. Anthropic
(5) Sarah Silverman, et al. v. Meta (class action)
(6) Sarah Silverman v. OpenAI (class action)
(7) Getty Images v. Stability AI and Midjourney