Senator Thom Tillis (R-NC) did something unusual for a staid institution like Congress at the beginning of his testimony before a Senate subcommittee hearing in late April: he played a new song by rapper Drake.

But Tillis thought Congress should hear more than just Drake’s rap verse. It was actually a lyric in the song that had the voice of the late, great rapper Tupac Shakur.

The song employs artificial intelligence in a sort of distinctly contemporary magic to bring the late rapper Tupac back to life and create a brand-new, synthetic verse that is narrated in his voice. The song, “Taylor Made Freestyle,” is one of many vicious diss recordings that Drake and Kendrick Lamar have been trading in their chart-topping rap feud. Drake, a Toronto native, saw some strategic benefit in using Kendrick’s voice as a weapon in the fight because Tupac is revered as a god among hip-hop fans in California, where he was born.

It seems that Drake used Tupac’s synthetic voice in his song without getting the late rapper’s estate’s consent. However, Drake was forced to remove the song after Tupac’s estate submitted a cease-and-desist letter shortly after the song’s debut, which he complied with. However, it’s questionable whether Tupac’s estate truly has the law on their side given the hazy legal framework regulating AI creations.

Thus, the rivalry between Drake and Kendrick Lamar has developed into one of the most clever and ferocious disputes in hip-hop history. It’s also turned into a historic flashpoint for the problems with what you could term “AI necromancy,” or the use of AI technology to bring the dead back to life.

With a few clicks and AI software, anyone may now summon the voice or physical likeness of a deceased star, or really anyone, dead or living. Furthermore, this has given rise to a number of fresh legal disputes about people’s and their heirs’ rights to manage digital portraits of themselves.

Senator Tillis stated, “So we’ve got work to do and legislation addressing the misuse of digital replicas will have a multi-billion dollar implication,” following the playback of the recently released Drake song in Congress that features AI Tupac. “We’ve got to get it under control.”

Tupac’s Endless Source of Supply

For Tupac, this is the most recent phase of one of the most fruitful posthumous careers of any musician. Reviving the late rapper was hugely popular, both commercially and artistically, even before the rise of artificial intelligence. And whether his estate was tarnishing his legacy by profiting from that desire was a matter of debate.

One of the most influential and captivating rappers of all time, Tupac was killed in a drive-by shooting in the streets of Las Vegas back in 1996. It’s amazing to think that at only 25 years old, he made such a profound impact on the globe.

There is an enormous amount of unreleased music that Tupac, who was known to enter the studio and produce songs like a conveyor belt, left behind. Additionally, seven posthumous studio albums featuring these songs were issued by music labels under the guidance of Tupac’s estate. This is higher than the number of albums Tupac released during his lifetime. Not to mention the plethora of greatest hits CDs, live albums, and compilation albums that were made available following his passing.

Many people started to find the steady barrage of new Tupac tracks odd by the early 2000s. Was he still living? Perhaps! This concept was parodied in a funny sketch by Dave Chapelle on The Chappelle Show in 2006. He is seen dancing to a new Tupac song with a bunch of club attendees, which makes repeated references to things that happened after his death. The hauntingly modern lyrics of the song captivate and confound the audience. The title of the sketch was “Tupac is still alive.”

Although Tupac released a few really excellent songs after his passing, the most were likely tracks he would not have released himself. From the perspective of this modest Tupac fan, these songs’ recurring themes and phrases became clichés. His flows became a little monotonous because they were so repetitive. When Tupac’s heirs released his last studio album in 2006, it seemed as though they were scrounging around for a quick cash.

An complete collection of watches inspired by the late rapper was introduced last year thanks to a contentious partnership between the estate and Nixon. A Nixon representative stated in a news statement, “We visually designed Tupac’s story through the medium of watches through photos, writings, and, of course, his music.” Many of Tupac’s supporters were not happy with this relationship, as Vibe made evident.

Whether or not the estates of deceased individuals should be able to approve use is at the center of the debate over regulations surrounding AI-generated digital reproductions of the deceased. Such authority is supposed to protect the artists’ legacy and provide financial support for their relatives. However, Tupac’s experience shows that this isn’t a perfect answer.

Sekyiwa Shakur, the sister of Tupac, has claimed that Tom Whalley, the executor of her brother’s estate, has been mishandling it. Tupac’s mother, Afeni Shakur, named Whalley to that position in her will. In 2016, she passed away. Tupac’s sister demanded an official estate audit and accused Whalley of embezzling money in a lawsuit filed in 2022. Whalley vehemently contests any misconduct. The legal action is not yet over.

Even while Tupac’s life story, likeness, and body of work would undoubtedly remain significant assets, by the 2010s it seemed as though Tupac’s passing had finally taken its toll and there would be no more new songs released. After decades of death, there’s only so much a person can do, right?

Then 2012 arrived, though. During a live performance at Coachella, Dr. Dre and Snoop Dogg famously used a “hologram” to bring Tupac back to life. Tupac, who had been digitally created using computer graphics and projected onto the stage, materialized like a ghost in front of an ecstatic audience. Ghost Tupac opened with a haunting performance of his posthumously released song, “Hail Mary.” The audience adored every minute of it.

It’s funny to note that Kendrick Lamar, Drake’s bitter rival, revived Tupac for his own creative endeavors. The final song on Kendrick Lamar’s “To Pimp A Butterfly” album from 2015 is called “Mortal Man.” As the song comes to a close, Kendrick interviews Tupac. Tupac’s half of the conversation was taken by Kendrick from an infrequently heard Q&A he had in 1994 with a Swedish radio program. However, unlike Drake, Kendrick obtained Tupac’s estate’s permission before doing this.

Is Using AI Tupac in Your Song Allowed?

Tupac, or at least a phony, digitally created facsimile of him, is experiencing a revival thanks to the rise of artificial intelligence. It goes beyond Drake. There are a ton of songs on YouTube right now using AI Tupac. Millions of people have already listened to some of these tunes.

With the designers not having received permission from Tupac’s estate, it begs the issue of whether any of this is really legal. We chatted with Mark Bartholomew, a law professor at The University at Buffalo School of Law, to find out the answer to question. His next law review paper, “A Right To Be Left Dead,” delves further into the legal questions raised by AI necromancy.

At the moment, there aren’t many federal regulations that specifically forbid utilizing AI to create and share copies of you without your permission. Bartholomew claims that in its place is a disorganized patchwork of state-by-state laws. Certain states shield your voice from being stolen, but not your appearance. People defend you while you’re still alive, but not when you pass away. The home state of country music, Tennessee, recently passed a law that shields performers’ voices and likenesses from unlawful artificial intelligence (AI) copies, both while they are alive and after they pass away.

How can we determine which state’s laws apply? Bartholomew cites a well-known instance of the unapproved use of Marilyn Monroe’s image. The late actress’s estate claimed that Monroe was a resident of California at the time of her passing, and California grants artists broad rights to manage the commercial use of their identities, even after they pass away. Monroe’s estate contended that they had the right to approve and benefit from the use of her image due to her ties to California.

However, the court determined that Monroe’s primary residence was in New York, where these rights were not (at the time) granted posthumously, based on evidence such as tax records and earlier arguments made by Monroe’s own estate. As a result, the estate lost their lawsuit. (To learn more about the legal and financial concerns associated with using deceased celebrities for commercial purposes, check out this 2015 Planet Money episode titled “Frank Sinatra’s Mug.”)

Tupac famously called California his home in his later years, despite the fact that he was born in New York. After all, “California Love” is among his greatest songs. According to Bartholomew, it is evident that Drake broke the law when he released a song that had Tupac synthesized.

“Because the rights holders [Tupac’s estate] are in California and California has a pretty vigorous right to your identity in various forms that extends years after death,” Bartholomew explains. “If we were talking about a celebrity who is from a different state, we’d have a different analysis.”

Bartholomew adds that if Drake and his crew fed Tupac’s copyrighted content into AI algorithms to create his synthetic voice, Tupac’s estate might also have a case under federal copyright law. But the case’s facts are hazy, and the law in this area is still unclear, he claims.

The Act of No Fakes

And that brings us full circle to that Senate hearing in the United States in late April, when Senator Tillis played the Drake song with AI Tupac. In addition to Senators Coons, Blackburn, and Klobuchar, Tillis is a co-sponsor of a draft bill dubbed “The No Fakes Act.”

A government “digital replication right” would be granted to Americans under the No Fakes Act, enabling us to approve the use of our voice, image, or likeness in a digital replica. It would make individuals responsible, such as musician Drake, accountable if they used a digital copy of someone without permission.

The current copyright law serves as the model for this digital replication right, which includes “fair use” exceptions for free speech. The right can be used by both living individuals and “the executors, heirs, assigns, or devisees of the applicable individual for a period of 70 years after the individual’s death.”

This 70-year postmortem clause was hotly debated at the hearing. Ben Sheffner, a motion picture industry representative, contended that it was reasonable to provide living performers the right to digital duplication because an AI clone of them “impacts their ability to earn a living.” But following a performer’s passing, he claimed, “that job preservation justification goes away”. The film industry clearly wants to be allowed to freely employ artificial intelligence (AI) or computer-generated imagery (CGI) of deceased performers. When actors went on strike last year, this was indeed one of their top concerns. Many actors worry that if studios can easily create new synthetic actors on the cheap or reanimate and employ deceased actors, they will lose their jobs.

Speaking on behalf of performers (and, full disclosure, reporters at NPR like me), Duncan Crabtree-Ireland of the SAG-AFTRA union expressed amazement at the notion that a performer’s authorized heirs would not acquire authority over their digital reproductions after their death. “This pertains to an individual’s legacy,” stated Crabtree-Ireland. “This is about a person’s right to give this to their family and let their family take advantage of the economic benefits they worked their whole life to achieve.” There “shouldn’t be a 70-year limitation at all,” according to Crabtree-Ireland. This should be an unrestricted right.

We sought the opinion of Bartholomew, the legal and technological expert, on the seventy-year postmortem clause. According to him, it’s important to find a balance between the rights of artists and their families to manage and profit from their legacies and the freedom of creators and the public to express themselves freely, including the right to use artificial intelligence (AI) and resurrect famous people for commercial purposes.

“We really don’t want people exercising dead hand control over what people can do with their likenesses or their voices 70 years after they die,” Bartholomew says. He contends that this is also the case with long copyrights. It is not in the public interest to provide what essentially amounts to a monopoly over a deceased artist’s or celebrity’s digital twin for an extended length of time. He emphasizes that the relatives of deceased celebrities frequently don’t even own their estates. Large corporations frequently purchase the rights because they are more concerned with making money than preserving the legacy and good name of the deceased artist or providing a platform for future artists to create works that use the artist’s voice or likeness.

According to Bartholomew, a more reasonable law would find a medium ground and grant the heirs of deceased artists ownership of their digital duplicates for about 20 years. By the way, that regulation would have allowed Drake to use AI Tupac in his song without getting permission—Tupac has been deceased for nearly 30 years. Not so with the current draft legislation.

Though it’s unclear where all of this is going, it’s certain that AI has brought us into a strange new world where ideas like “rest in peace” are being challenged.