AI and the Issue of Likeness: Drake, The Weeknd

Photo, which has been cropped, by Brian Ziff

"Heart on My Sleeve," a song purportedly created using fake, AI voices of Drake and The Weeknd, feels like a sea change moment for the music industry.

The track, written and produced by Tik Tok user ghostwriter977, was released on April 4 to multiple platforms including Apple Music, Amazon Music, Deezer SoundCloud, Tidal and YouTube.

Later that month, Universal Music Group – the parent company of Republic Records, the label to which Drake and The Weeknd are signed to distribution deals – requested the song be pulled, citing copyright infringement.

But given that the song itself likely appears to many to be the work of someone not signed to UMG, it wouldn't be unreasonable to wonder what their grounds were for that request. In what might feel to some like a technicality, "Heart on My Sleeve" features audio of Metro Boomin's producer tag, and that short clip is protected by copyright. According to Bloomberg Law, that was "likely" their only "direct copyright [claim]."

But could UMG have another gripe? While I don't exactly have access to copies of the recording contracts Drake and the Weeknd have signed, it is common for record contracts to be exclusive, so artists could not record elsewhere without their label's permission. But, to go down the rabbit hole further, they didn't actually record with anyone else, so how does a label enforce exclusivity (assuming they have it and wanted to) if no true recording took place?

It's unknowable how this potential crisis for labels and artists will play out, so for now, let's talk about Bette Midler, shall we?

The three-time Grammy-winner and two-time Tony Award-winner was approached in the '80s to have her version of the Beach Boys' song "Do You Want to Dance" used in a Ford's Mercury Sable commercial. She did not accept, later saying that she didn't do commercials.

But Ford got creative.

Instead of using Midler's actual voice, they asked her former backup singer Ula Hedwig, whose credits include 1978's "Sgt. Pepper's Lonely Hearts Club Band" film and a 2010 episode of "Pokémon," who agreed to do the ad impersonating Midler.

Midler was not happy and sued the car company.

The 1988 case, Midler v. Ford Motor Co., resulted in this conclusion, which reads in-part, "The Court found that in the media context, the First Amendment protects reproduction of likeness and sound," as authored by Cecelia Hubbert.

"When reproducing a person’s identity, the use will be immune from First Amendment claims if the purpose is informative or cultural. However, if the purpose of reproducing is only to exploit the individual portrayed, then immunity from First Amendment claims will not be granted. The Court determined that television commercials have become a primary source for advertising in society and thus a main part of American culture. Therefore, the Court found a First Amendment claim was not applicable to Midler’s situation because Ford’s use in reproducing her identity was cultural in nature."

The Midler case isn't the only lawsuit of this nature. In a more recent example, rapper Yung Gravy got permission to interpolate Rick Astley's "Never Gonna Give You Up" in Gravy's 2022 hit "Betty (Get Money)," but is being sued by Astley, as of January. The allegation is that the song "flagrantly impersonated" Astley's voice. Also on the track is singer Popnick, also named in the lawsuit with Gravy's record label, coincidentally, UMG's Republic Records.

In fact, Astley mentioned Midler's case in his complaint.

How does the Midler case revolving around an artist's likeness impact the fake, AI Drake and the Weeknd recording (and the future of AI music)? That's a question for a lawyer, which I am not. But what I can say for certain is Ford used Midler's likeness for cultural purposes in their commercial. However, it still remains to be seen who, if anyone, will make money from ghostwriter977's viral AI track.

Billboard said that because "it was pulled from platforms, its royalties may be withheld," while speculating that the millions of streams "Heart on My Sleeve" received "translates to thousands of dollars."

Superstar solo artist Grimes seems to have tried to shed some light on that issue with regard to her own likeness.

“I’ll split 50 [percent] royalties on any successful AI generated song that uses my voice,” she said in a recent tweet.

That update from the Canadian lo-fi artist was referenced in music producer-turned-YouTuber Rick Beato's excellent recent video examining the Drake and the Weeknd soundalike song. Also, he drew parallels to how the music industry wasn't ready for illegally filesharing using the original incarnation of Napster.

Beato also further commented on the issue of someone's voice and likeness, claiming impressionists do this sort of thing all the time and that parody is fair use. While that's true, here's how copyrightalliance.org defines parody: "By definition, a parody is a comedic commentary about a work, that requires an imitation of the work."

Does "Heart on My Sleeve" meet that definition? UMG certainly didn't think so.