The Chapman Law Review is proud to publish Damien Riehl’s keynote address: AI, Originality, and Creativity: Copyrighting all the Melodies to Avoid Accidental Infringement. Below, you will find an excerpt from the speech.

Forthcoming:  AI, Originality, and Creativity: Copyrighting all the Melodies to Avoid Accidental Infringement

By Damien Riehl

If you think of the “Live Your Life” song, who thinks that “Levitating” by Dua Lipa sounds like—or is substantially similar to—“Live Your Life,” by Artikal Sound System? Who does not think they sound substantially similar? It’s a trap. That’s the wrong question to even ask. Really, the question of substantial similarity is number three in this. Really, the order of questions we should be asking is the following: is this melody even copyrightable in the first place? That’s the first question. And that’s what we are going to be talking about today.

In 2019, I said to my colleague, Noah Rubin, “Should we break music?” And he said, “Heck ya, let’s break music.” And that’s how the All the Music Project came about. I’m going to tell you a true story, but instead of the name of the protagonist, think about your favorite artist. Think about your favorite musician and think about your favorite song by that musician. Think about them bringing that song from nothing to something into your ears and bringing you so much joy.

Now think about your favorite musician getting sued and that lawyer saying to your favorite musician, “I represent this group. I think you heard their song and then you wrote yours. You infringed their copyright.” And imagine your favorite musician saying, “No, it’s not true. I don’t think I’ve ever heard that song. But even if I did, I certainly wasn’t thinking about them when I made my song.” Imagine the case going to trial and a judge saying, “I believe you; I don’t think you consciously copied that group. But what I think did happen is you subconsciously copied them. You infringed their copyright, and you have to pay them a lot of money.”