Month: January 2025

Hijacking a Musician’s Identity to Promote AI-generated Music Isn’t Copyright Infringement: It’s Outright Fraud

Image: Shutterstock.com

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.

© Hugh Stephens, 2025. All Rights Reserved

This blog post was updated to include reference to Spotify’s payouts in the second paragraph.

Writers! Do You Know your Drafts on MS Word are being Scooped by Microsoft to Build its AI Algorithm? But You Can Stop This From Happening (Read On).

Image: Shutterstock

Although I post my blog content on WordPress, I usually use MS Word to draft my content initially. I am used to it, and it is easy to use. Little did I know that, according to the blogsite and forum nixCraft, Microsoft recently (September Privacy update) switched on a feature that allows them to ingest everything you write on Word to help develop their AI Algorithm, called Copilot. The setting is turned on by default in the Privacy settings and must be unchecked manually. Did Microsoft tell you this? Well, kinda, sorta. Microsoft says, “we don’t use your customer data to train Copilot or its AI features unless you provide consent to do so”. Did you provide consent? You no doubt did, unknowingly, when Microsoft updated its Terms of Use, which it does on a regular basis. If you continued to use Office 365, you granted consent.

In the last few days, a pop up has appeared when I am doing something on Word through Office 365.

“Thank you for using Office! We’ve made some updates to the privacy settings to give you more control”.

If you believe that, I have a bridge to sell you.

If you go to Privacy Settings there is a summary blurb on how the Terms of Use were updated on September 30. If you look hard enough you will find this reference;

“We added a section on AI services to set out certain restrictions, use of Your Content and requirements associated with the use of the AI services.”

You really should read the full Terms but as Microsoft notes, this will take an hour of your time (ESTIMATED READING TIME: 55 Minutes; 14268 words).

Having waded through it, this I believe is the relevant wording;

b. To the extent necessary to provide the Services to you and others, to protect you and the Services, and to improve Microsoft products and services, you grant to Microsoft a worldwide and royalty-free intellectual property license to use Your Content, for example, to make copies of, retain, transmit, reformat, display, and distribute via communication tools Your Content on the Services.

There is nothing here about opting out. You have to go to Privacy settings and do some digging to get to that. By masking these changes to make them appear that your privacy has been strengthened (whereas in fact it is just a content grab), Microsoft has stood things on its head by putting the onus on you, the user, to exercise your privacy rights. If you don’t want your creative work used to help train its AI algorithm, which in the end might compete directly or indirectly with your work, you need to opt out (unless you want to stop using MS Word altogether). Microsoft, however, is not suggesting this as a preferred option, or even letting it be widely known that it exists as an option. In fact, when you go into Settings to opt out you are presented with this little gem; “The Trust Center contains security and privacy settings. These settings help keep your computer safe. We recommend that you do not change these settings”.

But that is exactly what you must do if you want to keep your creative content out of the hands of Microsoft’s AI developers. Here is how to do it, based on instructions from nixCraft.

On a Windows computer, when in a Word file, go to File in the top left-hand corner. There is a drop-down menu. You want to go to Options. On my computer the Options choice does not show up unless you hit the arrow at the bottom of the page for “More”. When you get to Options, go to Trust Center (left side menu), then Trust Centre Settings. Next up is Privacy Options which leads you to Privacy Settings. There is a drop down menu, including Connected Experiences. There is a heading labelled “Experiences that analyze your content“. This box is checked for you. You want to uncheck it. To save the setting you will have to log out of Word and then log back in. (Update: I have just discovered a quicker way to do this. Go File-Options-General (top of list)-Privacy Settings-Connected Experiences-Experiences that analyze your content-Uncheck).

Eliminating this option will come at a price, according to all the “Learn More” button provided by MS, but it is your choice. For my part, I will forgo the bells and whistles for privacy.

The opt out process is not simple and not intuitive, but worth doing, even if only as a matter of principle. Office365, unlike Google Search or Bing, is not free. We pay to use it through an annual subscription. Even the tired old argument that you are providing your data as a sort of payment for “free” use of a platform’s service does not apply in this case. Microsoft needs more data to feed its AI machine and yours will do just fine, thank you very much. Don’t let them get away with it.

© Hugh Stephens, 2025. All Rights Reserved.

Visiting Mexico Made Me Wonder…Are the Works of Diego Rivera and Frida Kahlo in the Public Domain (Answer: It Depends)

Image: Museo del Arte Moderno, Mexico City

This is the time of year when Canadians find a desperate need to escape, from rain, sleet, snow and hail. They head for sunnier climes further south. With my family I spent a few days in that great, populous republic down south, the one with a brand-new president, and where people are intent on chasing the mighty dollar, the US dollar that is. I am, of course, referring to Mexico. And with the withering Loonie, now down below 70 cents US, there were no bargains to be had. But we had sunshine, tacos, tequila and laughter.

Apart from its cuisine and history, Mexico is a cultural powerhouse, particularly in the art world with artists such as Diego Rivera and Frida Kahlo. Rivera, although politically controversial, was famous for decades and did much of his work in the US, where his works were no doubt registered, with many of them (all those produced since 1929) still falling under copyright protection in the US. Kahlo, twenty years his junior and his third wife (he would go on to have four) was not so well known during her lifetime (she died at age 47 in 1954 after a series of debilitating health issues and tempestuous love affairs) but then became immensely popular posthumously, in the 1970s and 1980s, particularly outside Mexico.

Books, coffee mugs, porcelain tiles, prints and all sorts of other items in the boutiques that line every small Mexican town where tourists gather feature Rivera and Kahlo paintings, along with all the other usual bric-a-brac, macrame, shell necklaces, etc. You name it. I confess to not knowing much about Mexican copyright law, but seeing all this artwork made me wonder if it was authorized or infringing. All I knew was that Mexico has one of the longest terms of copyright protection in the world, if not the longest. In Mexico, at the current time, a work is protected for the life of the author plus 100 years. Contrast this to the US, EU, Canada or many other countries where the term of copyright protection is life plus 70 years. In some other countries, it is still the Berne Convention minimum of life plus 50 years. So, with this long period of protection Mexico must have long considered protection for artists and authors a priority, right? Wrong.

In fact, the term of protection in Mexico was quite short until relatively recently, and this affects the term of copyright protection in Mexico for works by both Rivera and Kahlo. According to this article published a few year ago by a Mexican law firm, it wasn’t until 2003 that the Federal Congress extended the term of protection to life plus 100 for economic rights. However, as recently as 1947 the term of protection was only life plus 20 years. In 1956 this was extended to life plus 25 years. This was made retroactive so Kahlo’s works in Mexico were protected until the end of 1979. (1954 plus 25 years). Rivera died in 1957 and his works therefore entered the public domain in Mexico in 1983. There were further amendments in 1963 that extended the term to life plus 50, but with no retroactivity. This allowed Mexico to join the Berne Convention in 1972. In 1997, there was a further amendment to extend the term to life plus 75 and finally the ultimate extension in 2003. There was no retroactive application of the extended terms legislated in 1963, 1997 or 2003 to works already in the public domain, in other words there was no restoration of protection. It is clear that insofar as copyright protection is concerned both Rivera’s and Kahlo’s works have been in the public domain in Mexico for a number of years. What about elsewhere?

Every year in January public domain advocates publicize the major works where copyright protection has just expired as of January 1. Last year Steamboat Willie was the star attraction. This year in various arts publications Kahlo gets top billing along with Henri Matisse and others. While Kahlo’s works have indeed fallen into the public domain as of January 1, 2025 in some countries, (given that 70 years have passed since her death in 1954), this does not necessarily include the United States, despite some online reports to the contrary. It all depends on whether her works were published in the US or registered for US copyright. This is because, for works created before January 1, 1978, the US applies the life plus 70 years rule only to unpublished or unregistered works. US law further extends the term of protection for such works if they were eventually published before December 31, 2002—resulting in a possible maximum term of protection that would last through the end of 2047. See this guidance from the US Copyright Office.

Assuming that Kahlo’s unpublished works were registered for copyright in the US (or if they were published prior to her death), her works for which the copyright protection term started before 1930 would be in the public domain as of this year. (This is because the US applies a copyright protection term of 95 years from date of publication or registration for pre-1978 registered or published works). But any registered unpublished works or published works of hers where the term of protection started after 1929 are still protected. This would be the bulk of her repertoire as she started producing works around 1925 but most of her work was produced in later years, after 1930. However, if a work was not published or registered, the life plus 70 rule applies (except if the work was subsequently published before December 31, 2002). Those unpublished or unregistered works will have entered the public domain on January 1 of this year in the US. In other words, it all depends on the work. Blanket statements that all of Kahlo’s work is now in the public domain in the US are dangerous and very likely inaccurate.

What about Canada? Here the interpretation is a lot easier. All of Kahlo’s works have been in the public domain in Canada since January 1, 2005 since Canada applied a life plus 50 year term at the time her works reached copyright maturity.

How about Rivera? Given that much of his work was done in the US, it is likely his works were both registered and published, and so his post 1929 works will still be protected for many years, depending on the year the work acquired copyright protection. And in countries that apply a life plus 70 term his works will be protected until January 1, 2028, given the date of Rivera’s passing, 1957. But in Canada, his works became publicly available in 2008. In Mexico, as noted above, his work entered the public domain in 1983 (date of death 1957 plus 25 years under the 1956 amendment).

That’s all very clear, right? Well not really, and its further complicated by the fact that a Mexican corporation, the Frida Kahlo Corporation has registered trademarks of Kahlo’s likeness in the US as well as Frida Kahlo wordmarks associated with products such as cosmetics, alcoholic beverages, cigars, games, coffee, clothing, dishware, etc. and has been aggressive in issuing takedown notices and even bringing lawsuits against various artists and enterprises that have used Kahlo’s personality to market items, such as Kahlo dolls. It also defends the copyright on those Kahlo works that still are protected in the US.

As is often the case with copyright, the principle (protection of the author’s economic rights) is simple, but the application is frustratingly complex. It would appear that works by Rivera and Kahlo have been in the public domain in Mexico for decades, for a couple of decades in Canada, and that Kahlo’s works are now in the public domain in the EU and UK. But not Rivera’s. In the US some of their works, if registered and produced post-1929, are still protected. Unpublished or unregistered Kahlo works are not. Did I say copyright was simple? Pass the tequila.

© Hugh Stephens, 2025. All Rights Reserved.

I would like to acknowledge the help and patience of Rachel Kim, of the Copyright Alliance, for her assistance in helping me understand the intricacies of US copyright law as it applies to the term of copyright protection for works in the US.

Digital Platforms and News Content: Australia Takes Off the Gloves

Image: Shutterstock

Canada infamously tried to take a leaf from Australia’s book in dealing with large internet platforms, like Google and Meta, that benefit from news media content without paying for it. In 2023, Canada introduced the Online News Act (Bill C-18), a Canadian version of Australia’s News Media Bargaining Code. The Australian approach, first introduced through legislation in late 2021, was initially very successful. Rod Sims, the author of the Code from his then position as Commissioner of the Australian Competition and Consumer Commission (ACCC), testified before the Canadian House of Commons Committee studying C-18, pointing to the success of the initiative in generating some AUD200 million in financial support for Australian media annually. Although there had been pushback by both Google and Meta in Australia, both eventually came onside, especially after the spectacular flop of Meta’s news blackout campaign. The threat of being designated under the Australian code was enough to get the two platforms to negotiate agreements with most Australian media in the form of funding to support journalistic output. As a result of the agreements reached, neither platform was designated under the Code and thus was not subject to “final offer” arbitration imposed by the ACCC.

Canada thought it would “improve” on the Australian precedent by making the process somewhat more transparent in terms of funding offers, and by requiring the platforms to self-designate. Whether it was the tweaked Canadian legislation or, more likely, a reappraisal of the value and cost of the agreements (particularly when it became apparent that the Australian precedent was likely to be followed elsewhere, with Canada being the first out of the gate), both platforms dug in. Meta in particular refused to engage with the Canadian process and declared that it would “comply” with the legislation by removing all links to Canadian media. That is not what the Government of Canada or Canadian media had in mind when Bill C-18 was introduced. Meta has held that line, although the extent to which it is fully complying is under review by the regulator, the CRTC. Various workarounds to allow news content to appear on Facebook have been employed by both Facebook users and some news providers, and META seems willling to turn a blind eye. Why that doesn’t trigger the Online News Act requirement to reach funding agreements with news content providers is a question that cries out for a response. (CRTC take note: We are waiting).

Google was slightly more amenable to striking a deal with the Government of Canada, agreeing that in return for exemption from the legislation, it would contribute $100 million (CAD) annually for five years (adjusted to inflation) to a fund that would provide support to qualified Canadian media enterprises. The $100 million subsumes existing contributions Google was already making to some Canadian journalism programs, so the net result is not $100 million in new money. Google has now begun to disburse this funding through the Canadian Journalism Collective (CJC), an entity established by what could legitimately be called “non mainstream media”, i.e. many small digital startups. The CJC was selected by Google as the executing agency for its funding, thus snubbing the organization representing the major media enterprises, News Media Canada. There are likely to be disputes over whether some of the “little guys” actually qualify as bona fide journalists. The more mouths there are to feed, the less there is for each supplicant and the big players are not happy to see the Google revenue stream diluted.

Meanwhile, back in Oz, Meta has announced that once they expire it will not renew the media agreements it reached back in 2022. Many will end this year. It appears Meta has decided it will adopt a consistent global position by insisting that news media content provides it with no value. Zero. None. And therefore it will not pay a cent. In part, this is to head off similar moves in the US where news media providers would like to bring in an arrangement similar to that instituted in Australia, or Canada. A separate initiative in California ended up with an outcome close to the one in Canada, with Google reluctantly agreeing to contribute funding to local journalism while Meta walked away. The Australian government has seen where this is heading, and it is not happy. It is taking the gloves off.

The Albanese government has announced it will be taking measures to require that any internet company that refuses to negotiate with publishers or removes news from its platform will be forced to pay, regardless. This is the big stick to counter META. What happens next is a consultation process, beginning now, to determine how what is being called a “news bargaining incentive” will actually be applied, retroactive to January 1. All digital platforms with annual revenues of AUD250 million annually will likely be subject to it. This will expand the net to include ByteDance (Tik Tok) and Microsoft (Bing, LinkedIn) as well as META and Google. Google has already said it will carry on and will renew the deals it signed with Australian media, allowing it to be exempted under the Code. META is not backing down.

The so-called “incentive” will take the form of a discounted penalty or fine. The initial proposal is that companies that sign deals amounting to 90% or more of the total of the fine that would otherwise be levied will be exempt. In other words, find ways to strike deals that in the end will save you money. Simply refusing to carry news content, as META has done in Canada, will not let a designated platform off the hook, a significant variation from the Canadian legislation, which many have criticized as being flawed. Rod Sims, now back in academia, fully supports the new incentive initiative. It appears the only way META can avoid payment is by closing its business in Australia. Given META’s track record, this might even be a card it is prepared to play. One can expect it to pull out all the stops to oppose the “incentive”, from legal challenges to threatening a pullout to seeking to invoke the support of the Trump Administration.

What position will the Trump Administration adopt? Donald Trump certainly has no love for the news media, as evidenced by his current and threatened lawsuits against US media outlets for providing coverage he doesn’t like. On the other hand, NewsCorp, which has strong holdings in Australia, has in recent years built its reputation and business model on catering to Trump’s vanity and desires. Trump also is not fan of Facebook, but Mark Zuckerberg has smelled the coffee and has donated a $1 million to Trump’s inauguration, after having kissed the ring by dining with the President-elect at Mar-a-Lago. So in the end, who knows where the US government will be on this question? All I can say to the Australian government’s expressed intention to deal head-on with META’s scorched-earth tactics is “good on ya, mate”. I wish Canada had the gumption to do the same.

© Hugh Stephens, 2025. All Rights Reserved.