It seems like every week brings a new dispute over artificial intelligence (AI), mostly focused around new features and uses of generative AI. Last week was no exception, with OpenAI unveiling human-like voices soon being available in its GPT-4o multimodal language model. In what would turn out to be one of the biggest tech executive self-owns this side of Elon Musk, OpenAI CEO Sam Altman tweeted (Xed?) the single word "her" on the same day that the new feature was announced.

Almost immediately, the public put together the dots. One of the GPT-4o voices, named Sky, was eerily similar to that of actress Scarlett Johansson, and Johansson had supplied the voice for an AI voice assistant in the 2013 Spike Jonze movie, Her.[1] Johansson released a statement stating that Altman had been in contact with Johansson for months, seeking to use her voice in what would become GPT-4o. Johansson had repeatedly refused.

OpenAI responded to the controversy by "pausing" the use of Sky with its new model, then later stating that they used a voice actor to develop Sky and did not intentionally mimic Johansson's voice.[2]

If she were to take OpenAI to court, Johansson would have a good case. Despite copyright law not providing protection for one's voice, the common law may (at least in California). There is clear precedent arising out of similar attempts to mimic a celebrity's voice when the celebrity chose not to participate.

In 1985, the Ford Motor Company created an ad campaign for one of its cars. Ford asked singer Bette Midler to sing one of her own songs in the commercials, but Midler's agent categorically refused on her behalf.[3] Undeterred, Ford hired one of Midler's former backup singers to record Midler's song, Do You Want to Dance, for the commercial. The backup singer was asked to sound as much as possible like Midler. When the commercials aired, many people felt the voice in the commercial sounded exactly like Midler's; some believed that it was Midler singing.

Midler filed suit claiming violation of the California common law right of publicity. The District Court granted summary judgment to Ford, finding no legal principle protecting imitation of a famous voice, as opposed to using the famous person's own voice (which could amount to copyright infringement) or physical image (which was protected by both statute and common law in California).

But Midler won a reversal on appeal to the 9th Circuit, the panel holding that "California will recognize an injury from an appropriation of the attributes of one's identity."[4] The panel wrote:

A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. We are all aware that a friend is at once known by a few words on the phone . . . . A fortiori, these observations hold true of singing, especially singing by a singer of renown. The singer manifests herself in the song. To impersonate her voice is to pirate her identity.

We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.[5]

If the Midler case establishes that it would be illegal to deliberately imitate the distinctive voice of a professional singer who is widely known, a question remained as to who would be considered "widely known." A few years later, some limits were added to that inquiry.

Singer Tom Waits emerged from folk music in the 1970s with a signature gravelly voice and songs about the darker sides of society. Though an inductee into the Rock and Roll Hall of Fame, Waits is nowhere near as famous as Midler, and has what could be described as "cult" following despite his songs being widely licensed.[6]

Frito-Lay created a radio commercial for a new variation of its Doritos chips. It asked Waits to provide his voice to the commercial, but he refused.[7] So Frito-Lay hired a Waits imitator to provide the soundtrack for the commercial.

Waits sued and was awarded $2.6 million at trial. On appeal, the 9th Circuit affirmed the decision, stating that the trial court properly instructed the jury that a widely known voice "is known to a large number of people throughout a large geographic area."[8]

Notably, Midler and Waits could not have prevailed on grounds of copyright infringement. Ford had obtained a copyright license from the writers of Midler's song, and Waits did not own the copyright to his. But their claims on grounds of right to publicity might not be available to any professional singer, only to those with distinctive and widely known voices.

Although Johansson is a singer,[9] her speaking voice is at issue in her dispute with OpenAI. Nonetheless, the Midler and Waits cases provide a persuasive foundation for concluding that OpenAI violated her publicity rights. Like in those cases, she was asked for permission to use her voice, refused, and the other party hired someone with a remarkably similar voice. Further, Johansson's voice is distinctive and widely known from her three decades as an actress. And perhaps most importantly, her voice had been "Her"[10] voice -- the paradigm of an AI voice. Thus, OpenAI would have enjoyed the commercial benefit of Johansson's implicit endorsement of its technology even though it had failed to obtain her approval.

As artists and creatives wrestle with how to deal with generative AI models being trained on their works and potentially spitting out substantially similar versions thereof, the Midler and Waits line of cases provides yet another arrow in the legal quiver to protect their life's work. The difference is that an AI model could be trained to replicate a famous person's voice rather than a sound-alike human being found.[11] Nonetheless, it remains unclear what level of celebrity is required to trigger a claim. Less well known or regional singers or voice actors may not qualify, for example.

Also, right to publicity laws overlap to some extent with emerging anti-deepfake legislation. The latter may be more readily available to less famous individuals -- for example, the proposed "No Fakes Act of 2023" provides a cause of action and remedies for a deepfake victim so long as they are "a human being, living or dead."[12]

Thus, before long, you may not need to be an Avenger to take on Sam Altman.

[1] Ironically, Her was dystopian and did not have a happy ending; it is not a good comparison for a company trying to sell the benefits of AI to the world.

[2] A comparison of the two voices can be found here. Sky does sound robotic, but the resemblance is clear.

[3] According to the court records, "[t[he conversation went as follows: 'Hello, I am Craig Hazen from Young and Rubicam. I am calling you to find out if Bette Midler would be interested in doing . . . ?' [Midler’s agent]: 'Is it a commercial?' 'Yes.' 'We are not interested.'"

[4] Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

[5] Id., 849 F.2d at 463.

[6] Ironically, Waits had an on-and-off romantic relationship with Midler.

[7] Waits was very outspokenly against using his voice or music in commercials.

[8] Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1102 (9th Cir. 1992).

[9] More irony: Johansson is a fan of Waits and has covered his songs.

[10] In the movie, the name behind the voice was Samantha.

[11] There was just such a dispute one week earlier, when Drake used an AI replica of the voice of the deceased (or allegedly so) rapper Tupac Shakur, as well as an AI replica of the voice of the living rapper Snoop Dogg, in his diss track "Taylor Made Freestyle." The Shakur estate threatened to sue Drake and he took the track down from social media immediately.

[12] Tennessee has enacted the Ensuring Likeness, Voice, and Image Security (ELVIS) Act to protect the voices of singers and other musicians, both living and dead.

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