In a lawsuit filed by music publishers against Anthropic PBC for its unlicensed exploitation of their copyrighted lyrics in its generative artificial intelligence platform, “Claude,” Pryor Cashman has asked a federal court in California to accept an amicus curiae brief on behalf of the Recording Industry Association of America (RIAA), the National Music Publishers’ Association (NMPA), and six other trade and rights management organizations that represent creators and copyright owners.
The brief, which supports the music publishers’ summary judgment motion, focuses on the fourth fair use factor—the effect of unauthorized copying on the potential market for or value of the copyrighted works—and underscores the significant risks that generative AI poses to the music ecosystem. The brief explains that generative AI systems can produce vast quantities of songs and lyrics that directly compete with human-created works, diverting audience attention and diminishing royalties:
Unlicensed copying of copyrighted lyrics, sound recordings, sheet music, and other musical content to develop generative AI has enormously damaging effects on the music industry. It floods the market with songs that substitute for and divert royalties away from the very works copied by AI developers to power their products. A consideration of the harm caused by such substitution, including from works that are not substantially similar to the works copied by AI developers in their entirety but that could not have been generated but for such copying, is squarely within the ambit of the Copyright Act and the fourth factor. Such unauthorized copying also threatens to destroy an already existing and growing market for licensing copyrighted works for use in AI “training.”
This substitution effect, long recognized as central to fair use analysis, represents a core harm that copyright law is designed to prevent:
The fair use argument that developers raise is a defense to that infringement, and the fair use inquiry expressly requires examination of whether the conduct of the sort engaged in by the defendant, if “unrestricted and widespread,” could harm the market for the plaintiff’s works including by substituting for them. Market harm and substitution are competitive inquiries, and Amici contend that the risk of harm to the market for plaintiffs’ works from substitution is clear.
The brief also emphasizes that market harm exists even where AI-generated outputs are not identical to the original works. By flooding the market with similar content, AI systems reduce demand for the works on which they were trained and undermine incentives for human creativity.
The brief further explains that Anthropic’s conduct harms an existing and rapidly developing market for licensing copyrighted works for use in AI training. Contrary to claims that such licensing is impractical, the music industry has already established robust frameworks for large-scale licensing of copyrighted works to major tech companies, including those investing heavily in generative AI. By bypassing these licensing markets, AI companies not only deprive creators of compensation but also threaten to destabilize a growing ecosystem built on consent and remuneration.
Pryor Cashman Partners Frank Scibilia, Joshua Weigensberg, and Benjamin Akley, and Associate Nathaniel Kazlow prepared the amicus curiae brief, which was submitted for consideration in Concord Music Group Inc., et al., v. Anthropic PBC. In August 2024, Pryor Cashman also submitted an amicus brief on behalf of amici RIAA, NMPA, and seven other trade organizations in support of the music publishers’ motion seeking an order enjoining Anthropic from copying lyrics to develop and train new AI models and to maintain guardrails to prevent output that reproduces, distributes, or displays lyrics while the case proceeds.
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