Scarlett Johansson’s Fight Against OpenAI: Does it Deserve Protection Under Publicity Rights
I. ScarJo & OpenAI
The ability of a person to control their image and voice has been widely recognized as a right to publicity.[1] Most commonly, celebrities will bring suit in order to protect their image and ensure their endorsement maintains its prestige.[2] More recently, the battle to protect one’s image has made its way into the AI sphere with deepfakes receiving a large brunt of the criticism.[3]
However, in May of this past year, a new frontier in AI’s infringement on the right of publicity entered the chat. This was in the form of OpenAI’s voice assistant, nicknamed Sky.[4] Immediately, the voice was recognized as that of Scarlett Johansson, reminiscent of the role she played in Spike Jonze’s movie “Her.”[5] Data analytics then made these similarities all too real, identifying that Sky and Johansson’s voices showed “undeniable commonalities.”[6]
II. Summary of the Issue
Right to publicity is traced from the right of privacy and has long been recognized as protected.[7] The right generally includes protection over “the use of people’s names, images, voices or other personality attributes from unconsented commercialization.” [8] The case at hand focuses on the issue of voice sound-alikes, which was established in the 1980s.[9]
In the case, Midler sued Ford Motor for violating her publicity rights by hiring another singer to record a commercial in the same style as Midler.[10] This was after Midler had refused to do the commercial herself.[11] The court 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 what is not theirs and have committed a tort in California.”[12]
III. Would granting the right go too far?
Part of establishing Midler’s publicity right was that the commercial was using a sound-alike in the same way as her profession.[13] So, maybe the question isn’t whether OpenAI infringed on Johansson’s right to publicity, but whether she even had that right at all.Foremost, Johansson isn’t a personal assistant by trade; she’s an actress.[14] In fact, of her 79 IMDB credits, 14 are voice acting—only 10 of which are distinctive from each other.[15] Additionally, Johansson’s voice wasn’t the only one that data analytics recognized.[16] Sky was also found to have similarities with Anne Hathaway and Keri Russell, occasionally even more so than Johansson.[17]
Is the issue that Johansson notably played a voice assistant?[18] Possibly. But, that could implicate Spike Jonze and his creation of the character.[19] At which point, where would an actor’s role stop and their real person begin? That appears to be a slippery slope where publicity rights for Scarlett Johansson would necessarily include Black Widow of Marvel fame or Major from Ghost in the Shell, both characters with distinctive IP protection.[20]
The strength of Johansson’s claim may lay outside of any of these considerations, however. When Sky was announced, Sam Altman, the founder and CEO of OpenAI, posted to his X account (formerly twitter) a single word: “her”.[21] Further indicting Altman is Johansson’s allegation that she was approached prior to the launch of Sky with an offer to provide the voice—which she declined.[22]
IV. We may never know
As previously discussed above, when considering all the facts—and the distinct similarities to Midler’s case—it seems that Johansson’s claim was strong more so in protecting against unethical business decisions than a cut and dry publicity right issue.
Of course, courts likely will not have to decide this any time soon as Altman and OpenAI pulled the sound-alike version of Sky and replaced it with other voice assistants following Johansson’s threat of filing suit.[23]
Footnotes
