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Why OpenAI should fear a Scarlett Johansson lawsuit
Will Scarlett Johansson sue OpenAI for creating a voice assistant that sounds like the actor’s performance in the 2013 film “Her,” about a man who falls in love with an artificial intelligence? TCM Healthcare Online shopping directly from China Bestbuy Earphones That’s how things could go after Johansson said OpenAI tried to hire her to voice an AI assistant for ChatGPT and, when she refused, forged ahead with a sound-alike voice. OpenAI’s co-founder and CEO, Sam Altman, could be directly in the crosshairs of such a lawsuit. Now, legal experts say Johansson may have a powerful and credible claim in court if she does decide to sue, pointing to a long string of past cases that could lead to significant damages for one of the world’s leading AI companies and raise questions about the industry’s readiness to deal with AI’s many messy complications. That OpenAI was apparently unaware of that legal history, or at worst willfully ignorant of it, highlights what some critics say is a lack of industry oversight in AI and a need for greater protections for creators. OpenAI didn’t immediately respond to a request for comment. That doesn’t appear to be the case, at least based on OpenAI’s past statements. The company claims not to have used Johansson’s actual voice, the company said in a blog post Sunday, but rather “a different professional actress using her own natural speaking voice.” While that might be enough to deflect a copyright claim, it almost certainly wouldn’t insulate OpenAI from the second type of law at issue, according to Tiffany Li, a law professor focused on intellectual property and technology at the University of San Francisco. “It doesn’t matter if OpenAI used any of Scarlett Johansson’s actual voice samples,” Li posted on Threads. “She still has a viable right of publicity case here.” How publicity rights laws work Multiple states have right-of-publicity laws that protect individuals’ likenesses from being stolen or misused, and California’s — where Hollywood and OpenAI are based — is among the strongest. The California law prohibits the unauthorized use of anyone’s “name, voice, signature, photograph, or likeness” for the purposes of “advertising or selling, or soliciting purchases of, products, merchandise, goods or services.” Unlike a copyright claim, which is about intellectual property, a right-of-publicity claim is more about the unauthorized use of a person’s identity or public persona for profit. Here, Johansson could accuse OpenAI of illegally monetizing who she is by essentially fooling users into thinking she had voiced Sky. One defense OpenAI could mount is that its now-viral videos showcasing Sky’s capabilities weren’t technically made as advertisements or meant to drive purchases, said John Bergmayer, legal director at Public Knowledge, a consumer advocacy group. But, he added, it could be a rather thin argument. “I believe use in a highly hyped promo video or presentation easily meets that test,” he said. In addition to saying it never used Johansson’s actual voice and that its videos weren’t advertisements, OpenAI could also say it never intended to precisely mimic Johansson. But there’s substantial case law — and one very inconvenient fact for OpenAI — undercutting that defense, legal experts say. A Bette Midler precedent There are roughly a half-dozen cases in this space that show how OpenAI may land in hot water. Here are two of the biggest ones. In 1988, the singer Bette Midler won a lawsuit against Ford Motor Company over an advertisement featuring what sounded like her voice. In fact, the song in the ad had been recorded by one of Midler’s backup singers after Midler turned down the opportunity to record the ad. The similarities between the reproduction and the original were so striking that some people told Midler they believed she had performed in the commercial. The US Court of Appeals for the 9th Circuit ruled in Midler’s favor. “Why did the defendants ask Midler to sing if her voice was not of value to them?” the court wrote in its decision. “Why did they studiously acquire the services of a sound-alike and instruct her to imitate Midler if Midler’s voice was not of value to them? What they sought was an attribute of Midler’s identity. Its value was what the market would have paid for Midler to have sung the commercial in person.” In a similar case decided by the 9th Circuit in 1992, the singer Tom Waits won $2.6 million in damages against the snack food maker Frito-Lay over a Doritos ad that featured an imitation of Waits’ signature raspy voice. The court in that case doubled down on its decision in Midler, further enshrining the idea that California’s right of publicity law protects a person’s voice. OpenAI’s legal risk There are two types of law that could potentially be involved here, according to legal experts, but only one is likely to come into play based on the currently known facts. The first is copyright law. If OpenAI had directly sampled Johansson’s films or other published works to create Sky, the flirty voice assistant demoed in an update to ChatGPT, then OpenAI might face a copyright problem if the company didn’t obtain permission beforehand.
