Deepfakes and copyright in the music industry

A discussion of copyright law and deepfakes in the music industry when applying the parody or satire defence, and its threats to human ingenuity by Jean-Louis Fourie

Copyright law and music..

Copyright law plays a fundamental role in safeguarding the intellectual creations of artists, including those in the music industry. While the Copyright Act does not explicitly define the term “musical work,” it is generally accepted that this category includes a broad range of sounds recorded in digital form or notated, provided the work is fixed in some form. At common law, musical works are distinguished by the separate copyrights granted to the music and the lyrics. For instance, the Federal Court’s analysis of the renowned Australian song “Love is in the Air”, affirmed that the instrumental music and the sung rendition of the music are distinct from the literary copyright protecting the lyrics. This highlights the concurrent rights associated with musical works. This being said, "Musical work" continues to be an abstract concept in copyright law.

Deepfake technologies in the music industry..

Deepfake technology represents a significant disruption to copyright law in the music industry. At common law, even a spontaneous sound recording of singing or whistling may qualify as a “musical work” if it reflects effort, skill, and creativity. The Federal Court has recognised that music, distinct from noise, is composed to evoke emotional and intellectual responses. Therefore, copyright law seeks to protect all elements that contribute to the final sound.

While deepfake technology replicates vocal inflections, compositions, and other elements of a musical work, copyright law remains focused on the musical score (the tangible culmination of effort and creativity) rather than the sound recording alone. As copyright in a musical work exists independently from the recording, the fixation of sound in a record does not attract copyright protection. This distinction is critical in assessing deepfake technology’s implications, as it imitates not only the sound recording but the core creative elements of musical works.

Parody or satire..

The Copyright Amendment Act 2006 (Cth) introduced a fair dealing exception for the purposes of parody or satire. At common law, imitation constitutes copying, while satire involves distinguishing the satirist from the original artist, often through irony. Copyright infringement arises from imitation, but parody or satire may serve as a defence, provided it is not merely a guise to exploit the original work’s reputation. The work must not only be humorous but transformative in nature, though the latter is not strictly necessary for a finding of fair dealing.

In a case assessing the satirical use of Dee Snider’s “We’re Not Gonna Take It”, Katzmann J concluded that the reproduction did not alter the message or music, nor did it involve transformative use. As the work lacked ironic or critical commentary, it failed to qualify as a fair dealing under s 41A of the Copyright Act.

Deepfake technology often relies on extensive voice recordings to replicate an artist’s distinctive voice. Katzmann J noted that copying a “signature part of the song”, which is integral both quantitatively and qualitatively, constitutes copyright infringement. For many artists, the voice is central to their identity and emotional expression, setting them apart in a competitive industry. While voices themselves are generally uncopyrightable, the musical works associated with them are protected. While deepfakes are often created for humorous purposes, humour alone will also not shield creators from liability where the copying of a holistic body of musical work is evident. The transformative nature of the parody or satire remains a critical factor.

How heavily should this be monitored under Australia’s Artificial Intelligence Ethics Principles?

It may be argued that there remains no sufficient protection for Australians’ copyrighted works under the current AI Ethics Principles. Deepfake technology can be labelled as threatening to the core of Kind McDermott’s natural rights and the incentives of artists to create, both theories being foundational underpinnings of Australia’s recognition of copyright. Deepfake technologies often leverage vast amounts of pre-recorded musical works in order to replicate the human ingenuity possessed within.  In replicating these sounds without the understanding of authorship and originality, the foundational concepts of copyright law, including the natural rights inherent to each individual are lost. While deepfake musical works can result from a creator’s labour and effort, the content itself often heavily relies on pre-existing works or the likeness of individuals. Similarly, where deepfake technology has the ability to create substantially similar musical works, the incentive of a musical artist to create original works may be lost.

A robust and nuanced conversation surrounding the extent of copyright protections against artificial intelligence technology is required to traverse this complicated landscape.