Legal Analysis of Potential Claims in Sound-alike Recording Case

Did Scarlett Johansson’s voice inspire ‘Sky’? Scott Hervey and Jamie Lincenberg of Weintraub Tobin unpack the controversy between Scarlett Johansson and OpenAI’s Chat GPT. Explore potential legal claims and the intricacies of voice rights in AI on this episode of The Briefing.

Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here.

Show Notes:

Scott

Scarlett Johansson claims that Chat GPT’s voice of Sky is her voice, or is intended to be her voice. Despite Sam Altman, the CEO of OpenAI, attempting to engage Johansson to voice Chat GPT, Altman claims that Sky isn’t her, that it’s a voice actress OpenAI hired well before his initial discussions with Scarlett’s agent. I’m Scott Hervey from Weintraub Tobin, and I’m joined today by a fellow Weintraub lawyer and frequent “Briefing” contributor, Jamie Lincenberg. We are going to talk about the Scarlett Johansson OpenAI controversy, the claims she could bring, and how those claims may fair on today’s episode of “The Briefing” by Weintraub Tobin.

Jamie, welcome back to “The Briefing.” I think this one’s going to be a good one.

Jamie

Thanks, Scott. It’s good to be back. I’m excited to dive in.

Scott

This has been in the news for quite a while now, and the facts are mostly out there. In a nutshell, Sam Altman approached Scarlett Johansson in September 2023 about voicing Chat GPT. According to Scarlett Johansson, Altman said that he felt that by voicing the system, she could bridge the gap between tech companies and creatives and help consumers feel comfortable with the seismic shift concerning humans and AI. Apparently, Altman felt that her voice would be comforting to people. Scarlett Johansson ultimately declined. Two days before the Chat GPT 4.0 demo was released, Altman contacted Johansson’s agent asking that Scarlett reconsider. Now, also sometime before the Chat GPT demo was released, Sam Altman tweeted, “Her”, which seems to point to the 2013 movie where Scarlett Johansson voiced a Siri-like AI assistant. Now, apparently, before the two could connect, the Chat GPT demo was released, and Scarlett began getting calls and emails from friends and family who thought that the Chat GPT voice, Sky, was her. Altman claims that the voice of Sky is that of a voice actor who was hired before he contacted Scarlett Johansson’s agent.

Jamie

Thanks, Scott. I think that sums up the facts. That’s far, fairly well. Let’s now talk about the type of claims that Johansson could bring. I think the first logical step is a right of publicity claim.

Scott

Yeah, I agree with you, Jamie.

Jamie

California’s right of publicity statute is Civil Code Section 3344 and prohibits the use of another’s name, voice, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, such products, merchandise, goods, or goods without such person’s prior consent. California also has a common law right of publicity that’s a bit broader than the statute. If Johansson did bring a case, it would follow some of the soundalike recording cases that the Ninth Circuit has previously adjudicated.

Scott

Yeah, that’s right. The first was Midler versus Ford, and the second was Tom Waits versus Frito-Lay. Both of those cases involved the use of a soundalike singer singing a song in the style of that particular artist in TV commercial. Both Midler and Waits sued for violation of their rights of publicity under the Civil Code and also under California’s Common Law. The trial court in Midler initially granted Ford its motion for summary judgment. On appeal, the Ninth Circuit, addressing Midler’s Common Law claim, held 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 that which is not theirs and have committed a tort in California. The Waits Court, which relied on Midler, found similarly.

Jamie

There are a few issues that I can already see with this type of claim if Johansson were to bring it. The Midler and Waits cases held that when a voice is a sufficient indicia of a celebrity’s identity, the right of publicity protects against its imitation for commercial purposes without the celebrity’s consent. The first hurdle Johansson would have to overcome is whether her voice is sufficient in indicia of her identity. Although she was the voice of the Siri-like personal assistant in the movie Her, it’s still an open question whether her voice is so recognizable that it’s linked to her and her celebrity.

Scott

Yeah, I tend to agree with you, Jamie. I’ve listened to Scarlett Johansson’s voice, and while she has a bit of a husky quality in her voice, it’s nowhere near Clint Eastwood’s. I think of celebrities who have tremendously recognizable voices: Arnold Schwarzenegger, Samuel L. Jackson, Morgan Freeman, James Earle Jones, Christopher Walken, and probably the most recognizable voice of all, Fran Drescher. I just don’t I think Scarlett Johannison’s voice is like theirs. There were two important jury findings in the Waits case. One was that the voice in the commercial was a deliberate imitation of Waits’ voice, and the second was that Waits had a distinctive voice, which is widely known. I don’t know whether Scarlett Johansson has that.

Jamie

To your first point that you just made, there are some facts out there that tend to point toward the voice of Sky being a deliberate imitation of Johansson, and discovery would likely shed a lot more light on that.

Scott

Oh, I agree. In this case, if she were to sue, it would be all about discovery. But OpenAI, in a press release or in an article that I had read and prepping for this, said that its Chief Technology Officer was in charge of the voice casting, and Sam Altman wasn’t really that involved. It was an interview with NPR. She told NPR, Miriam Maradi, that she didn’t even know what Scarlett Johansson sounded like until people were comparing Skye to Scarlett Johansson?

Jamie

Well, whether Skye was a deliberate imitation would probably end up being a question for the jury, and there would be a lot of expert testimony comparing the two voices. It would also be a question of fact for the jury whether Johansson had a distinctive voice that was widely known. The jury instructions in the Waits case provide that a voice is distinctive if it is distinguishable from the voices of other singers, if it has particular qualities or characteristics that identify it with a particular singer.

Scott

Yeah, I think that would be the big hurdle for Scarlett, would be if her voice meets the elements necessary to be distinctive. All right, so let’s talk about the other claim she could bring, which is a false endorsement claim under Section 43A of the Lanham Act. That prohibits the use of false designations of origin, false descriptions, and false representations in the advertising and the sale of goods and services. Courts have widely recognized a false endorsement claims brought by celebrities for the unauthorized imitation of their distinctive attributes, such as a celebrity’s likeness, where those attributes amount to essentially an unregistered commercial trademark.

Jamie

Right. And these false endorsement cases make sense. A celebrity has a commercial investment in their name, appearance, and sometimes voice. And those are tantamount to the interests of a trademark holder. In a distinctive mark.

Scott

Yeah, I agree. And those cases are really well-established. And so, here’s the potential hurdle that Johansson would face. Both the Second Circuit and the Ninth Circuit, which cover the major media markets in New York and California, they require evidence of either recognizability or public prominence to support a false endorsement claim. So similar to the issue she would face in a write a publicity claim, Scarlett Johansson would have to show recognizability and public prominence in her voice. And this may prove to be challenging for her. For sure, it’s a question of fact for the jury.

Jamie

Well, regardless of whether Johansson sues, and if anyone were to have the backbone to go up against OpenAI, it would be her. I think there’s probably a bit more drama to come.

Scott

I definitely agree with you, Jamie. There’s more drama to come here. Thanks for joining us today.

Jamie

Thank you.

Scott

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