Scarlett Johansson v. OpenAI – does the actress have a right to her voice?

Actors have many attributes, such as their voice or image. These contribute not only to market value but are also their personal assets. So what should an actress do when she learns that the latest artificial intelligence speaks with her voice?

Several months back, Sam Altman, CEO of OpenAI, asked Scarlett Johansson if she would be willing to lend her voice to his company’s new chatbot. The actress declined. Despite the refusal, OpenAI programmed a new bot named Sky with a voice that sounded like Scarlett Johansson. The actress expressed her displeasure in a statement: “When I heard the released demo, I was shocked, angered, and in disbelief that Mr. Altman would pursue a voice that sounded so eerily similar to mine that my closest friends and news outlets could not tell the difference.”

Two days before the Sky premiere, Altman again asked Johansson for permission to use her voice and did not get it either.

In this situation, Johansson turned to her lawyers, who immediately intervened with OpenAI, sending letters demanding an explanation of the process of creating Sky’s voice. As a result, the actress’ imitating Sky disappeared from ChatGPT’s palette of assistants. At this point, Sam Altman assures that there will be no more bots imitating actors’ voices. The company also confirmed this in a statement: “Since May 15, 2024, we’ve been in conversation with Ms. Johansson’s team to discuss her concerns about Sky. Out of respect for her concerns, we’ve paused the use of Sky in our products as of May 19, 2024”. In fact, on May 20, Sam Altman had already addressed an apology to Scarlett Johansson.

Nevertheless, OpenAI does not want to reveal who owns Sky’s voice – the company’s statement indicates that this must remain a secret due to the protection of the actress’ private life. OpenAI’s line of defense was confirmed by The Washington Post, citing documents and recordings of the casting process. The announcement included requirements such as that actors should be of non-union background, sound between the ages of 25 and 45, and their voices should sound “warm, engaging and charismatic.” There was no word on Scarlett Johansson. The article from The Washington Post also includes an excerpt from a statement from this anonymous actress provided by her agent: “Personally, I feel that it’s just my natural voice, and I’ve never been compared to her [Scarlett Johansson – ed. note] by people who know me.”

Documents provided by OpenAI also show that the actress providing the voice for Sky was hired months before Sam Altman contacted Scarlett Johansson for a license. The agent for the anonymous actress who provided her voice for Sky also confirmed that at no stage of the collaboration with OpenAI was there any mention of Johansson or the film Her. Joanne Jang, responsible for AI behavior models at OpenAI and has supervised the development of the bot’s voice, even claims that she does not hear any similarity between Sky’s voice and that of the famous actress.

Why exactly Johansson?

To answer this question, it is necessary to go back to 2013 when Spike Jonze’s film “Her” premiered. The main character is an introverted writer who suffers from loneliness. The remedy for this feeling turns out to be a new operating system – an artificial intelligence that responds to its owner’s needs. Its voice is actually Scarlett Johansson. Having long conversations with the operating system, the main character establishes a romantic relationship.

Altman admits that he depended on Scarlett Johansson’s voice for the film’s purpose. The OpenAI CEO did not improve the situation by publishing a post on the day of the bot’s release (May 13, 2024) that stated “her” on his X profile. The actress herself was not silent about the fact in her statement: “Mr. Altman even insinuated that the similarity was intentional, tweeting a single word, ‘her’ — a reference to the film in which I voiced a chat system, Samantha, who forms an intimate relationship with a human.”

What further steps might Scarlett Johansson take?

At this point, the actress has not revealed whether she will take further legal action. Does she have grounds to do so? Without a doubt, even if OpenAI has indeed only used a similar voice, there is already a precedent in U.S. law for this issue—this is the case of Midler v. Ford Motor Co.

Singer Bette Midler sued the Ford company for a series of commercials in which an imposter impersonated her. Nevertheless, it sounded so confusingly similar that the court upheld Midler’s claim.  The appeals court was faced with the issue of whether voice is a personal distinguishing characteristic that can be protected. What distinguishes this case is that Midler did not claim copyright protection for the work but precisely for using her voice. Anyway, the creators of the ad had a license to the work. The starting point was that the use of Midler’s voice was the primary motivation and feature of the ad.

The Midler case generally shows many similarities with the dispute between Scarlett Johansson and OpenAI. Midler was first offered to sing in the commercial, which she turned down. For the court, this was an essential factor – it raised the question, why did the defendants, if Midler’s voice was irrelevant according to their line of defense, make such an offer? The same question will have to be answered by Altman himself – if the resemblance of Sky’s voice to Scarlett Johansson was not intentional, why did he renew his request for a license just two days before the bot’s release?

The court in Midler v. Ford also noted that a significant portion of the audience, even from the singer’s close circle, was convinced that she was singing in the commercial. It also found that the ad’s creators deliberately sought “an attribute of Midler’s personality.” In its ruling, the appeals court concluded: “Midler has made a showing, sufficient to defeat summary judgment, that the defendants here for their own profit in selling their product did appropriate part of her identity”. Wasn’t the same thing committed by OpenAI?

A few years later, in 1992, the same court (Court of Appeals, 9th Circuit, with jurisdiction over the state of California) ruled similarly in Tom Waits v. Frita-Lay, Inc. The defendant manufacturer had imitated a Tom Waits song in an advertisement for SalsaRio Doritos crisps. The court ruled that Tom Waits’ manner of singing was so distinctive that there was an infringement.

In American law, protection of the voice can be claimed under the right of publicity. This right protects against the unauthorized commercial exploitation of another’s identity, as defined by name, image, likeness and voice, among other things. The scope of this protection varies from state to state – in some, at least, there is a requirement to recognize the person whose goods have been “seized” in this way. US law, however, does not provide for the possibility of registering the voice as a trademark.

In US civil litigation, as a rule, jurisdiction is vested in the court having jurisdiction over the defendant. In the case of OpenAI, this would be the state of California since OpenAI in the US is headquartered in San Francisco. The applicable California Civil Code generally protects the voice and other image elements, stating in par. 3344, that “Any person who knowingly uses in any manner another person’s name, voice, signature, photograph, or likeness on products, goods, or other property for the purpose of advertising, selling, or soliciting the purchase of products, goods, other property, or services, without the prior consent of such person or, in the case of a minor, the prior consent of his or her parent or legal guardian, shall be liable for damages to the person or persons injured as a result thereof.” Nonetheless, the problem for Scarlett Johansson’s lawyers could be that this law understands “voice” to mean the actual voice of an individual, rather than, like common law, at least an imitation voice. Nevertheless, the California case law cited above gives an advantage to the actress.

As this dispute has already become very widely known in the United States, the first expert opinions have emerged regarding the potential chances of Scarlett Johansson and her legal staff in the court battle. There are comments that the Midler precedent could apply here because we are not dealing with direct use of the actress’ voice, but only a confusingly similar voice, with the bot’s creators deliberately evoking associations with Johansson and the film above. Others, on the other hand, point out that the aforementioned behavior of OpenAI and its CEO would be a reasonable basis for proving infringement. In addition to lawyers, Mitch Glazier, executive director of the Recording Industry Association of America, when asked by The Washington Post for his opinion on the matter, also assessed that Scarlett Johansson has solid grounds to bring a lawsuit against OpenAI.

What’s next for copyright law?

The same OpenAI responsible for the unlawful use of Scarlett Johansson’s voice was still boasting in a blog a few days before Sky’s release about a proposal for a new tool that would aim to make it easier for creators to enforce their copyrights—the Media Manager program in question. The tool would allow creators to specify how they want their work included or excluded from machine learning.

OpenAI believes Media Manager is “the first-ever tool of its kind to help us identify copyrighted text, images, audio and video across multiple sources and reflect creator preferences.”

This dispute has definitely exposed some serious problems with legislation and the risks posed by the development of AI. U.S. lawmakers are already considering the NO FAKES Act and No AI Fraud Act bills, which will help regulate the abuse of artificial intelligence creators. Lawyers commenting on the issue point out that states need federal regulation of the right of publicity. These challenges were also addressed by Scarlett Johansson herself in the conclusion of her statement, stating that she is “looking forward to a transparent solution and the adoption of appropriate legislation to help ensure effective protection of individual rights.”

Sources:

[1]https://cyfrowa.rp.pl/technologie/art40409331-afera-wokol-chatgpt-scarlett-johansson-oskarza-firme-o-kradziez-glosu

[2]https://www.nytimes.com/2024/05/20/technology/scarlett-johansson-openai-statement.html

[3] https://openai.com/index/how-the-voices-for-chatgpt-were-chosen/

[4] https://openai.com/index/approach-to-data-and-ai/

[5] https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co.

[6] https://law.justia.com/cases/federal/appellate-courts/F2/849/460/37485/

[7]https://iapp.org/news/a/voice-actors-and-generative-ai-legal-challenges-and-emerging-protections

[8]https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=4.&title=2.&part=1.&chapter=2.&article=3.

[9]https://www.dmlp.org/legal-guide/california-right-publicity-law#:~:text=Generally%20speaking%2C%20the%20Right%20of,and%20a%20common%20law%20right.

[10]https://www.theguardian.com/technology/article/2024/may/27/scarlett-johansson-openai-legal-artificial-intelligence-chatgpt

[11]https://www.washingtonpost.com/technology/2024/05/22/openai-scarlett-johansson-chatgpt-ai-voice/

[12] http://law2.umkc.edu/faculty/projects/ftrials/communications/waits.html

[13]https://edition.cnn.com/2024/05/22/tech/openai-scarlett-johansson-lawsuit-sam-altman/index.html