Now these be times unprecedented.
Firstly Andre 3000 releases an album with no words1.
At second place is another conundrum. An album made by many artists. Not singing2. Not playing anything. Silent singers. Put this album on and you will hear nothing.
So what’s next? An album without instruments? Oh by the way – the doo wop era. And bless the Adventists with the acapella.
The Cause
While it remains a wonder what Andre was protesting against, there is some intel on what the “silentos” are raising their voices against.
Artificial intelligence. AI.
Hear, hear.
AI, seems to be becoming a nightmare to creativity. Especially because it includes the training of AI tools using existing information. Including music. This means that AI tools are trained using existing music. The AI tools then learn patterns and styles to generate new outputs based on user queries. The results are therefore inspired by material that is protected by copyright.
So is there infringement there?
Perspective has to be kept in mind here. What music is actually “original”?
Do these artists claim to invent their own tracks with zero precedent from the ancestors? All these latest tunes with breathy-vocals and auto-tune, the one same as the next: are we Mozarts here, suddenly? What of mumble-rap? And do we dare act as if a legion of youth did not jock Drake’s style?
Yet, here we are.
My take on the South African position
South Africa must be reasonable with this copyright issue even though we draw inspiration from foreign law. Music is a heritage.
In the US there is the famous copyright infringement case of the Marvin Gaye Estate v. Robin Thicke and Pharrell Williams for the hit song “Blurred Lines”. Apparently Blurred Lines has a similar feel to Marvin Gaye’s “Got to Give It Up”.
A feel.
I do not know how I can even quantify this, as a judge.
I do not see how we can use this judgement in South Africa. Case law of this kind is scarce in South Africa, but the Copyright Act outlines forbidden acts for protected sound recording, i.e., “making, directly or indirectly3, a record embodying4 the sound recording”5.
Thicke and Williams would definitely have had to be indirect their record would have had to embodying Got to Give it Up.
So What Now?
Well, now is the time for the courts to court. There are plenty of figures who are baying for AI’s blood, such as the legendary Paul McCartney6, a man so fierce that he turned the Bad man Michael Jackson into a lover, not a fighter.
I’d bet my chips on such a man.
One way or the other, the world will flourish from this tussle. Some humans will thrive and the rest left to fend for themselves best as they can, as per the theories of evolution.
Meanwhile my compadres and I are simply going to relish this spectacle like the Roman spectators oohing and ahhing at the sight of blood, bone and sinew of the gladiators.
Let the Games begin.
1. https://www.washingtonpost.com/entertainment/music/2023/11/14/andre-3000-solo-album-new-blue-sun/
2. https://www.bbc.com/news/articles/cwyd3r62kp5o
3. Emboldened for emphasis.
4. Emboldened for emphasis.
5. Section 9(a) of Copyright Act No. 98 of 1978.
6. https://www.bbc.com/news/articles/c8xqv9g8442o
Brian Dube, admitted and duly registered Patent Attorney, South Africa. +27766734288 admin@dubeiplaw.co.za.
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