Do You Know What You’re Agreeing To?

By Daphne Benford-Smith, esq.

Artificial Intelligence (“A.I.”) is becoming a highly utilized tool across the media and entertainment spectrum. There are studios in music, animation, and video game development that are exploring ways A.I. can increase and/or simplify processes for production and revenue. But while A.I. can be useful in streamlining processes and making for expedient production and revenue generation, there is an issue with utilizing these platforms that is often overlooked or entirely disregarded. When using these platforms, users agree to “Terms of Services” (“TOS”) or “End-User License Agreements” (“EULA”) that are replete with “legalese” written to establish rights and responsibilities that many may not fully understand. This is especially evident with the sections that concern intellectual property rights, and that is why I wish to discuss this today.

Trademark and copyright rights are typically the primary concerns in a TOS or EULA agreement. A trademark is a word, slogan, logo, sound, or color that is used to denote the origin of a good or service that is sold in commerce. This is different from a copyright, which is a form of creative artistic expression used in a tangible medium. When one obtains trademark or copyright registration, there are certain exclusive rights and privileges that accompany same. For example, one has the right to license their trademark or copyright to others. They also may have the right to create derivatives, such as sequels or prequels, or even ancillary objects such as paraphernalia or games. These exclusive benefits are great sources of revenue for trademark and copyright owners, as normally others must pay for a license to use the protected works or pay royalties for use of same. However, there are A.I. platforms that have language contained within their TOS or EULA that undermine these exclusive rights, and it is essential to recognize this.

To illustrate this, I wanted to use the TOS for an A.I. music platform called “Suno” as a case study. This platform makes it easier for those who create music to streamline the process and have a song created almost instantaneously. While there are industry professionals or creatives who may find the platform useful, the real inquiry is what will their rights to the product they create through this platform be? Suno’s TOS states in relevant part:

Intellectual Property Rights

• Service Content: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Suno or otherwise under these Terms of Service, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to Content that you upload to or make available through the Service in accordance with these Terms of Service. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.
• Content: You represent and warrant that you own all right, title and interest in and to Submissions, including all copyrights and rights of publicity contained therein, and that you possess all necessary rights or have obtained all consents necessary to grant Suno the rights and licenses herein. By using the Service or otherwise transmitting Submissions to us, you grant to Suno and our affiliates, successors, assigns, and designees a worldwide, non-exclusive, fully paid-up, sublicensable (directly and indirectly through multiple tiers), assignable, royalty-free, perpetual, irrevocable right and license to use, reproduce, store, modify, distribute, create derivative works based on, perform, display, communicate, transmit and otherwise make available any and all Content (in whole or in part) in any media now known or hereafter developed, in connection with the provision, use, monetization, promotion, marketing, and improvement of our products and services, including the Service and the artificial intelligence and machine learning models related to the Service. 

That is a lot of words that concern a lot of rights, but I will sum it up simply: for content that one creates primarily on the app, they do not own the rights to it. The reason one does not own the rights to it is because it may contain material that is protected by copyright, patent, trademark, or trade secret. For content that is uploaded onto the app, the user warrants (or promises) that they own all the rights to it and are authorized to upload it to the site. Once that is done, you have given Suno an irrevocable, fully-paid up, perpetual (never-ending), non-exclusive, royalty-free, license that they can use for virtually anything they want including making derivatives, assigning their rights to another (giving their rights away) without ones express permission, use the user’s content to generate money, market their platform, create derivative works, and train their large language model (LLM). All of this is done without them having to pay the user money for a license or even provide royalties for use of the content. In other words, they take on the same exclusive rights and benefits of being the primary copyright or trademark owner without having to do the work or pay for it.

And this is not to dissuade anyone from utilizing the platform that isn’t concerned about these issues, nor is the point of this article to speak to the quality of the service that is provided on Suno. Rather, it is encouraging readers to understand the rights involved and to know what they are agreeing to before utilizing a platform. When you sign up and these platforms ask whether you have read the terms of service or the end-user license agreement, truly take the time to see how your intellectual property rights could be affected. If there is confusion with this, it is imperative that you have an attorney review it before you utilize it for important projects or creations. Here at Holon, we have helped our clients by reviewing the terms of service prior to them using a platform or them obtaining registration to know whether their use of a platform could possibly interfere with their rights. So, think of all the platforms you are using and ask yourself this important question: do I know what I agreed to?