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Protecting creatives from the unauthorized use of intellectual property is essentially the heartbeat of copyright law. In 1991, Warner Brothers and Biz Markie were taken to court by Grand Upright Music for using a portion of the song "Alone Again (Naturally)" by Gilbert O’Sullivan.
The court ruled that because copyright holders withheld permission to use the song and the label still released the song "Alone Again" by Biz Markie, the label had willfully committed copyright infringement.
The defense argued that sampling was widely and customarily used in the genre to which the judge responded by beginning his ruling with the biblical commandment "Thou Shalt Not Steal". A precedent was established that samples that have not been cleared are clearly copyright infringement.
Fast forward to today with the rapid penetration of AI in the music industry, existing legal precedent and the protective purpose of copyright law in the mix and we land on this question : Without licensing, how does compensation and credit attach and benefit the creator/copyright owner?
On September 25, 2025, the Recording Academy brought music industry advocates and lawmakers together nationwide for Music Advocacy Day. Among the topics discussed was safeguarding against AI misuse through legislation such as the NO FAKES Act. The NO FAKES Act was developed to protect artists against AI-generated digital replicas.
In tandem, cases are making their way through the legal system that have been filed by record
labels against the AI music generator companies Suno and Udio, which include the theory of piracy. Universal Music Group, Warner Music Group, and Sony Music Entertainment added new claims to their lawsuit that music has been illegally pirated by AI using "stream-ripping" methods on YouTube to train AI models.
The allegation is that copyrighted music, which has not been licensed, is taken by use of both “diffusion” and “transformer” models to create AI music.
AI does not seek clearances. What we must be clear on is that without an agreement to license
under our current laws, there is no agreement for compensation and credit for the use received by the creator/owner.
Fair use is an exception to the requirements of copyright law. It allows for the use of work without the copyright owner’s permission and without compensating the copyright owner for such use in certain instances.
Content being published and available does not make it legally available for use.
Section 107 of the Copyright Act lays out the considerations courts use to analyze whether the utilization of an existing work is a fair use and can be used without license.
It is a common misconception that fair use determination is solely focused on how much of
the original content is being used. Here are the four buckets of factors Section 107 provides the courts to consider in evaluating a question of whether the fair use exception applies:
Purpose and character of the use: This factor examines whether the work is being used for a commercial venture or is it for nonprofit or educational purposes. Transformative uses are those that add something new to the original work and expand creativity with an expanded purpose or different character. With music it typically must be more than increasing the speed or adding a beat between notes.
Nature of the copyrighted work: This factor analyzes how much creative expression was involved in creating the work that was used. The unique ideation and imagination that goes into the creation of a novel, movie, or song most likely not going to fit the fair use exception.
Amount and substantiality /importance of the section used in relation to the copyrighted work as a whole: Courts look at the amount of copyrighted material that was used but the amount is not the ultimate driver of the fair use decision.
Courts have found use of an entire work to be fair but in other cases using even a small amount
of copyrighted work was determined not to be fair because the portion used was the signature piece of the work.
Effect of the use upon the potential market for or value of the copyrighted work: This factor is how the use impacts the bottom line of the creator. The analysis looks to determine whether if the use is allowed will it diminish the creator's earnings now or in the future and to what degree.
The decisions by the courts are made on a case-by-case basis making it challenging to foresee the outcomes.
What we do know is that looking for the grant of permission to use intellectual property is the foundation for analysis with crediting and compensation being the justice that creators depend on. AI is largely confined by using current data. We know that technology is not deliberating before acquiring. Creativity is the hardest human ability to copy.
Taking it back to the head, how do we regulate and compensate creators for what AI sweeps through multiple sources and obtains without permission? How do we arrive at what is fair in this age of creative and technological evolution?
The Southern Soul community must engage in and own these topics because in the words of Durell Smylie this is "Where The Money Resides".
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