What Book Authors’ AI Copyright Court Losses Mean for the Music Business

Two recent court decisions struck a blow for book authors suing generative AI platforms on copyright grounds, with judges concluding that training large language models (LLM) on unlicensed books is “transformative” and thus constitutes “fair use.” While that left many to question whether music companies’ own infringement lawsuits are similarly doomed, legal experts say it’s far from clear that this same reasoning will apply to the music industry — and the rulings might even provide a roadmap for the labels and music publishers to strengthen their cases.

The court opinions on book copyrights — by two California federal judges who used different reasoning, but arrived at the same conclusion, to end authors’ claims against Anthropic and Meta — sent shockwaves among stakeholders in the debate over generative AI, since they were the first to rule on the issue of fair use. They also seemed to bode poorly for the labels and music publishers suing Anthropic and the AI platforms Suno and Udio for training their models on unlicensed songs and lyrics. But people shouldn’t assume that this means it’s game over for every copyright case against an AI platform.

First off, these rulings are not the final word on fair use, as there are more than 40 pending lawsuits where judges will consider the same questions about AI. And district court rulings are not precedent; these cases will be appealed to circuit courts around the country, and the Supreme Court will likely weigh in on the matter at some point. 

Even more critically for those in the music industry, it’s key to remember that both the rulings that have come out so far concern books. Experts tell Billboard that the medium matters, and legal analysis may be different when it comes to music.  

“It’s one thing to come to a conclusion when you’re talking about books,” says Ken Anderson, an entertainment attorney at the law firm Rimon PC. “There’s a difference when it comes to music and visual arts, which are way, way, way more complicated in analysis than literary works.” 

Christopher Ford, an intellectual property litigator at the firm Debevoise and Plimpton, says one major factor that could be different for music is the so-called “market impact.” While both the fair use rulings in June found that there wasn’t evidence of LLMs producing books that could directly compete with human authors, Ford notes that AI bands like The Velvet Sundown are getting serious airtime these days.

“That’s incredible evidence,” says Ford. “We have songs from a completely AI-generated band now taking up spots on Spotify playlists. There’s only so much time a person can spend listening, and every minute that someone is listening to AI-generated bands, they’re not listening to a human artist’s original work.” 

The other key caveat with the June fair use opinions is that those cases challenged only the copyright implications of inputting unlicensed works into AI models for training, not the outputs of these models — for example, a book or piece of music generated by an AI model. Indeed, both rulings were careful to note that the analysis could be very different if a copyright holder were to claim infringement based on outputs. 

Debevoise intellectual property lawyer Megan Bannigan tells Billboard that music labels and publishers have a real shot at pleading that AI from companies like Anthropic, Suno and Udio are spitting out infringing music.  

“It really remains to be seen how the courts are going to analyze fair use for outputs when what is coming out is clearly a song that is protected by copyright,” Bannigan says. 

All this means that the first fair use rulings are hardly a death knell for the labels and music publishers. As Anderson puts it, “If I were an AI company that was applying this for musical purposes, I would certainly not consider a fair use opinion on text uses to give me a green light.” 

In fact, these decisions might actually provide a useful roadmap for the music companies as they look to fine-tune their cases and target the right evidence through the discovery process. 

“These are some of the older cases,” says Ford of the June opinions. “So we’re seeing the plaintiffs’ attorneys learn the lessons of prior cases that have come before them as they’re doing more sophisticated pleadings, more sophisticated discovery tactics, more sophisticated expert analyses and more sophisticated arguments.” 

And while there have been some licensing talks that could lead to deals between the labels and Suno and Udio, experts think it’s unlikely that the decisions that have come out so far will tip the scales in the direction of a settlement. 

“These aren’t the kind of resounding wins for the defendants that I think would lead people to say, ‘Litigation isn’t worth it,’” explains Ford. Bannigan agrees. 

“It’s always possible that a case will settle, but I think especially with respect to the platforms, they’re really fighting to prove that what they’re doing is fair use,” says Bannigan. “So I wouldn’t expect big settlements coming out of this.”