Use of Artificial Intelligence to Determine Copyright Liability for Musical Works

25 Pages Posted: 1 Oct 2020 Last revised: 24 Oct 2020

See all articles by Shine (Sean) Tu

Shine (Sean) Tu

West Virginia University College of Law

Date Written: June 2, 2020


This article explores the use of artificial intelligence to help define the current test for copyright infringement. Currently, the test for copyright infringement requires the jury or a judge to determine whether the parties’ works are “substantially similar” to each other from the vantage point of the “ordinary observer.” This “substantial similarity” test has been criticized at almost every level due to its inconsistent nature. Artificial intelligence has evolved to the point where it can be used as a tool to resolve many of the current issues associated with the “substantial similarity” test. Specifically, courts would no longer have to rely on a battle of the experts or the use of lay observers to determine if a work is substantially similar to another work. Using a new test based on the “ordinary AI observer” copyright infringement can be established using a means that is both less biased and more fact driven while giving alleged infringers a means by which to check ex ante if their work could be infringing.

Keywords: artificial intelligence, copyright, copyright liability, machine learning, substantial similarity, music

Suggested Citation

Tu, Shine (Sean), Use of Artificial Intelligence to Determine Copyright Liability for Musical Works (June 2, 2020). WVU College of Law Research Paper, No. 2020-012, West Virginia Law Review, Forthcoming, Available at SSRN: or

Shine (Sean) Tu (Contact Author)

West Virginia University College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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