NYLJ “Non-Functional by Design?”

Court Considers the Applicability of Copyright Act to ‘Look and Feel’ of a Website

By Steve Kramarsky & Jack Millson

Recently, a track called “Heart on My Sleeve” by an unknown TikTok user named Ghostwriter (or “@ ghostwriter977”) appeared out of nowhere and went viral across various social media platforms, reaching tens of millions of users before being taken down. The track sounds (according music critics and fans) convincingly like a collaboration between the artists Drake and The Weekend, which one would expect to be a major event. But it’s not. It was created by Ghostwriter, using AI-generated vocals trained to sound like those artists. The entre track is a fake: a product of the explosion of new tools based on generative AI.

Over the past few months those AI voice tools have been more widely released, and they work. It is trivial to use them to create a track that sounds, to the casual listener, like it was recorded by the famous artist of your choosing, and the micro-genre of AI-generated “covers” of existing songs by anomalous artists (or other public figures, like President Biden) has exploded on TikTok. So what legal recourse, if any, do these artists have?

The usual answer to that question under U.S. law has been copyright. Universal Music Group (which represents Drake and The Weekend) was able to issue DMCA strikes (take-down requests under the Copyright Law) for “Heart on My Sleeve” because it included a “producer tag”—a short musical sample placed in the track by the producer to identify it as his work (which in this case it wasn’t).

Those “tags” are sound recordings, and sound recordings are copyrightable, so UMG was able to have the track taken down because it included explicit copying of their protected intellectual property. But what if Ghostwriter (or his AI) had not included that tag? What if he had simply removed it and reposted the song?

UMG, and other content creators have argued that the work should be considered a violation anyway. They argue that While this has substantial superficial appeal, it is not entirely clear how it fits into the existing regime of copyright. It may be that content creators are “defaulting” to the copyright law because there is no other obvious place to turn.

Technological change frequently presents this kind of challenge. The faster things change, the harder it is for the law to keep up. Copyright law has typically expanded to keep up with rapid technological change, particularly recently, and in that makes some intuitive sense. Protection for works of authorship need not be dependent on their medium of expression.

But, as always, fault lines appear and through them come interesting cases. The AI cases are in their earliest stages, and the issue of infringement by AI-generated content has not yet been decided, but there may be guidance available in other contexts.

Recently, in the Eastern District of New York, Judge Eric Komitee considered a claim for copyright infringement in a website design. He concluded quickly that the complaint could not sustain an infringement claim because the textual and photographic elements set out in the copyright registration had not been copied; however, he also took up the thornier question of whether the “non-functional design elements” (i.e. the “look and feel”) of the website could be protectible under the Copyright Act.

Courts in the Second Circuit have been split on that question and the court’s analysis of the case law is worth a closer look. ID Tech LLC v. Toggle Web Media LLC, 2023 WL 2613625 (E.D.N.Y. Mar. 23, 2023).

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This article first appeared in the New York Law Journal on May 15, 2023. Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Jack Millson is an associate at the firm.