Early last week there was a flurry of articles, including one on Billboard, reporting on the strange case of Nova Scotia musician Ian Janes. Janes discovered that his Spotify artist profile included music that wasn’t his and which he hadn’t recorded. Someone had apparently created “Musak-like” AI-generated tracks and had added an album, named Street Alone, to Janes’ artist profile as a way of boosting the album’s take-up. How they did this is not clear although they must have hacked the system in some way. Janes had Street Alone removed from his profile, although it reportedly remains up on Spotify but not under his profile.

One assumes if the AI album was surreptitiously posted to Janes’ account, it could also have been added to the profile of other artists. Janes stated that the person or entity doing the posting could actually be getting any royalties the album is earning because payments are normally made through a distributor who could be directing royalty payments, such as they are, to the fake artist. (Not that they are likely to get rich. There is a 1000 track minimum streaming requirement on Spotify before any royalties are paid, and given Spotify’s track record of paying approximately $3.00 per 1000 streams, it takes over 33,000 streams for an artist to earn the princely sum of $100). However, the fake listing could also boost the stream count of the album, raising its profile in the algorithm. In effect, it appears that someone is hijacking the profile of a known artist to promote low grade AI-generated music. Is this legal? No, it’s not, but why not? Does copyright law help?

Billboard reports that Janes’ lawyer lamented it’s not technically a copyright violation unless the music uses Janes’ likeness or his actual compositions. No one has copied his music; they have just claimed he wrote and performed a piece which he had nothing to do with. Another publication (allaboutai.com) claims this case has revealed significant gaps in Canadian copyright laws, which primarily address human-created works, noting that “Current statutes do not fully account for the complexities of AI-generated content”. This is true, as I pointed out recently in a blog post on the issue of the loophole in Canadian copyright practices that allows registration of AI-generated works even though it is generally accepted that such works do not receive copyright protection under Canadian law. Here we may have an example of an anonymously created AI-generated work trying to find a recognized human artist to associate with. While there is a tangential relationship to copyright, this story is not about copying a specific work or illegally generating income from a copy. It is about the droit d’auteur, the integrity of an author’s or artist’s work and their reputation. In this case, the key issue is the potential damage to Janes’ reputation if inferior work is passed off under his name.

However, copyright law (in Canada or elsewhere) does not specifically include the ability to protect one’s identity or name. A name or identity cannot be copyrighted–although a work by that person can be. Nonetheless, there are some forms of legal protection available. A related concept known as the right of publicity (or right of personality) affords some protection. In Canada, this either falls under provincial privacy laws (BC, SK, MB and NL) or common law principles of defamation. In the US there are laws protecting publicity rights in some states. Another way to protect one’s identity and image is to register it as a trademark, although this is usually done by well-known personalities. There are various requirements such as demonstrating a record of marketing products that use the trademark designation. (Michael Jordan shoes, Frida Kahlo dolls, even Fred Perry tennis shorts—remember him?). But in my view Janes should not have to trademark his name and identity, nor should he have to resort to defamation or privacy laws. To me, perhaps simplistically, this case is about fraud, producing a fake product and passing it off as the real thing.

Under the Criminal Code of Canada, fraud is defined as depriving someone of “any property, money, or valuable security or any service…by deceit, falsehood or other fraudulent means…”. Recently I wrote about the scandal of the Norval Morrisseau art fraud. The principal perpetrator, David Voss, was sentenced to five years in jail for the fraud (technically he pleaded guilty to forgery) while his co-accused Gary Lamont was convicted of forgery and defrauding the public. In sentencing, the judge in the case focused as much on the damage to Morrisseau’s legacy and reputation caused by the fraud as to the harm suffered by those who had purchased fake paintings. Surely the same is true of Janes, or any other musician, whose work is tainted by false claims that a shoddy piece of music was produced by them. The fraud per se would have been perpetrated against a Spotify user who thought they were playing Janes’ music, but the real fraud was perpetrated against the artist, their work and their reputation.

There are examples of fraudulent works where the false attribution of author is also a copyright violation, as in the case of the plethora of Chinese knockoffs of J.K. Rowlings’ Harry Potter works. For example, Harry Potter and the Walk-up Leopard Dragon and Harry Potter and the Chinese Porcelain Doll, both published in Chinese but labelled as being written by Rowlings, were fraudulent works, total fakes, but under US law they also violated Rowlings’ copyright so that is what Warner Bros. used to shut them down. They were unauthorized derivative works. But the definition of a derivative work is much narrower in Canada, as explained here, in this post by Carson Law. In the case of Janes, none of his works was copied or infringed, only his identity and name were misused so, as noted by his lawyer, there are apparently no grounds for bringing a copyright infringement case in Canada. But claiming that a random work was produced by someone who had nothing to do with it is clearly misrepresentation and deceit, in short, fraudulent activity.

Will anyone do anything about it? Of course not. It took two decades and a documentary film that fully exposed what was going on to shame the Canadian authorities into doing something about the Morrisseau fraud. It was only through the dogged determination of one detective in the Thunder Bay Police Service (Sgt. Jason Rybek) that action was finally taken.

The conjunction of AI-generated music (which has no copyright protection), online platforms that market tracks from literally millions of artists (it is estimated there are 11 million artists on Spotify), combined with the ingenuity of hackers who have been able to successfully post ersatz music to legitimate Spotify accounts as a way to promote machine generated tracks, has created a perfect storm allowing for these kind of shenanigans. The damage is done to legitimate artists–who have a tough enough time as it is to profile their music– without having to carry the burden of inadvertently promoting someone else’s musical garbage. To willingly assert that your work is the creation of someone else, whether it is music generated by AI, or paintings produced from a sophisticated “paint by numbers” scheme as in the case of the Morrisseau forgeries, is surely outright fraud. The real artist pays the price. And that’s not fair.

This article was originally published by Hugh Stephens Blog