Imagine this: a band removes its entire music catalogue from Spotify in protest, only to discover an AI-generated impersonator has replaced it. The impersonator offers songs that sound much like the band’s originals.
The imposter tops Spotify search results for the band’s music – attracting significant streams – and goes undetected for months.
As incredible as it sounds, this is what has happened to Australian prog-rock band King Gizzard & the Lizard Wizard.
In July, the band publicly withdrew its music from Spotify in protest at chief executive Daniel Ek’s investments in an AI weapons company.
Within months, outraged fans drew attention to a new account called “King Lizard Wizard”.
It hosted AI-generated songs with identical titles and lyrics, and similar-sounding music, to the original band. (And it isn’t the first case of a fake Spotify account impersonating the band).
The fake account was recommended by Spotify’s algorithms and was reportedly removed after exposure by the media.
This incident raises crucial questions: what happens when artists leave a platform, only to be replaced by AI knockoffs? Is this copyright infringement? And what might it mean for Spotify?
As an Australian band, King Gizzard’s music is automatically protected by Australian copyright law. However, any practical enforcement against Spotify would use US law, so that’s what we’ll focus on here.
Is this copyright infringement?
King Gizzard has a track called Rattlesnake, and there was an AI-generated track with the same title and lyrics.
This constitutes copyright infringement of both title and lyrics. And since the AI-generated music sounds similar, there is also potential infringement of Gizzard’s original sound recording.
A court would question whether the AI track is copyright infringement, or a “sound-alike”. A sound-alike work may evoke the style, arrangement or “feel” of the original, but the recording is technically new.
Legally, sound-alikes sit in a grey area because the musical expression is new, but the aesthetic impression is copied.
To determine whether there is infringement, a court would examine the alleged copying of the protected musical elements in each recording.
It would then identify whether there is “substantial similarity” between the original and AI-generated tracks. Is the listener hearing a copy of the original Gizzard song, or a copy of the band’s musical style? Style itself can’t be infringed (although it does become relevant when paying damages).
Some might wonder whether the AI-generated tracks could fall under “fair use” as a form of parody. Genuine parody would not constitute infringement. But this seems unlikely in the King Gizzard situation.
A parody must comment on or critique an original work, must be transformative in nature, and only copy what is necessary. Based on the available facts, these criteria have not been met.
False association under trademark law?
Using a near-identical band name creates a likelihood of consumers being confused regarding the source of the AI-generated music. And this confusion would be made worse by Spotify reportedly recommending the AI tracks on its “release radar”.
The US Lanham Act has a section on unfair competition which distils two types of liability. One of these is false association. This might be applicable here; there is a plausible claim if listeners could reasonably be confused into thinking the AI-generated tracks were from King Gizzard.
To establish such a claim, the plaintiff would need to demonstrate prior protectable trademark rights, and then show the use of a similar mark is likely to cause consumer confusion.
The defendant in such a claim would likely be the creator/uploader of the AI tracks (perhaps jointly with Spotify).
What about Spotify?
Copyright actions are enforced by rights-holders, rather than regulators, so the onus would be on King Gizzard to sue. But infringement litigation is expensive and time-consuming – often for little damages.
As Spotify has now taken down the AI-generated account, copyright litigation is unlikely. The streaming platform said no royalties were paid to the fake account creator.
Even if this case was successfully litigated against the creator of the fake account, Spotify is unlikely to face penalties. That’s because it is protected by US “safe harbour” laws, which limit liability in cases where content is removed after a platform is notified.
This example demonstrates the legal and policy tensions between platforms actively promoting AI-generated content through algorithms and being “passive hosts”.
Speaking on the King Lizard incident, a Spotify representative told The Music:
Spotify strictly prohibits any form of artist impersonation. The content in question was removed for violating our policies, and no royalties were paid out for any streams generated.
In September, the platform said it had changed its policy about spam, impersonation and deception to address such issues. However, this recent incident raises questions regarding how these policy amendments have translated into changes to the platform and/or procedures.
This is a cautionary tale for artists – many of whom face the threat of their music being used in training and output of AI models without their consent.
For concerned fans, it’s a reminder to always support your favourite artists through official channels – and ideally direct channels.
- is a Lecturer in Law, University of New England
- This article first appeared in The Conversation
