Scarlett Johansson may have a case in OpenAI voice dispute

While Protos usually covers Sam Altman when he’s launching cryptocurrencies or scanning eyeballs, OpenAI and its CEO have recently made waves for other reasons: namely, it appears as though Altman and his team reached out to actress Scarlett Johansson, asked for her to be a voice for OpenAI, were refused permission, and chose to pursue a similar voice actor to create the voice instead.

AI advocates have been quick to suggest that, because it wasn’t Johansson herself, there would be no room for a possible lawsuit against OpenAI. As it turns out, things may not be that simple.

Indeed, there are many cases that suggest Johansson would not only have a case but would likely win.

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Bette Midler v Ford Motor Company

In 1985, an advertising agency made a series of commercials for the Ford Lincoln Mercury that utilized hit music from the ‘70s but almost exclusively relied on sound-alike singers. One of these songs was Do You Want To Dance from Bette Midler’s album The Divine Miss M. Apparently, a brief phone interaction between the ad agency and Midler’s agent went as follows:

Ad Agent: 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?

Ad Agent: Yes.

Midler’s Agent: We are not interested.

The ad agency already had a license from the copyright holder to use the song and had a sound-alike sing it for the ad. Midler was alerted to it when ‘a number of people’ reached out to her to say it sounded exactly like her. A lawsuit followed.

Midler lost the initial case but won on appeal.

Importantly, the court asked, “Why did the defendants ask Midler to sing if her voice was not of value to them? 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?” It then answered those questions in the next sentence, stating “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.”

While the case revolved around a singer, her song, and the use of both in an ad, it wasn’t those aspects that won her the case. Most importantly the court said “To impersonate her voice is to pirate her identity.”

Tom Waits v Frito-Lay

While Midler had the fact that she was a superstar and that the advertising agency had reached out to her representative and asked her to sing on her side in her court case, Tom Waits had no such advantages.

In his case against Frito-Lay, Waits sued the chip manufacturer for creating a radio jingle that sounded exactly like him.

Although no one from the ad agency reached out to Waits or his representatives, they did a ‘search for a lead singer for the commercial [that] suggests that no one would do but a singer who could not only capture the feeling of [Tom Waits’ 1976 song] Step Right Up but also imitate Tom Waits’ voice.’

The ad agency found a Waits impersonator and hired him to sing a song about Doritos. A video by Rock N’ Roll True Stories plays the embarrassing fake Tom Waits Frito Lay radio commercial here.

In the lead-up to the first airing of the ad, Frito-Lay reached out to the ad agency to ask if they could get sued for releasing it. The attorney for the ad agency said “there was a ‘high-profile’ risk of a lawsuit in view of recent case law recognizing the protectability of a distinctive voice,” adding “based on what Grossman had told him, however, the attorney did not think such a suit would have merit, because a singer’s style of music is not protected.”

Unfortunately for the ad agency lawyers, a jury decided in Waits’ favor even though they didn’t know of him and ‘thought [he] was a criminal’ the first time they saw him. Frito-Lay appealed.

Waits won on appeal, with the Ninth Circuit reaffirming almost all of the jury’s decisions, including his award for punitive damages of $2 million.

Vanna White v Samsung Electronics America

Wheel of Fortune hostess Vanna White sued Samsung for an ad it ran that featured a robot game show hostess. While it didn’t use her voice or name, it wore an outfit like White’s on Wheel of Fortune.

It turns out that even that was enough to win a court case.

The appeals court stated, “The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable,” adding that “if we treated the means of appropriation as dispositive in our analysis of the right of publicity, we would not only weaken the right but effectively eviscerate it.”

Read more: Opinion: Americans shouldn’t offer their eyeballs to WorldCoin

Honorable mention: Crispin Glover v Universal Pictures

Famously, Crispin Glover turned down a part in Back to the Future Part II because he didn’t like the script. But that didn’t stop Universal Pictures from using old footage, prosthetics, and face masks to recreate him in the Back to the Future sequel, and that pissed Glover off.

Upon receiving the lawsuit, Universal filed a demurrer arguing that ‘the publicity rights claim should fail because the filmmakers were only trying to perpetuate the George McFly character.’ This argument was rejected by the judge and, ultimately, the case was settled in (presumably) Glover’s favor.

Not federal law

Of course, none of these cases were taken to the Supreme Court in the US, and right to publicity has largely been decided state-by-state, so no one knows what could transpire on a federal level. It’s possible that Johansson doesn’t attempt to take OpenAI on for their misuse of a voice, particularly as it was quickly pulled.

While the demo video of the new OpenAI used Johansson-modelled ‘Sky’ voice, it’s unclear if this is enough to seek punitive damages or if Johansson is interested in spending years of time litigating against Microsoft and OpenAI.

Regardless, this marks a watershed moment where actors, artists, writers, and other creators will need to see how far they’re willing to let artificial intelligence go before it crosses the line on their rights to privacy and publicity.

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