Overview
Scarlett Johansson sent a cease-and-desist letter to Open AI, alleging that the company unlawfully used her voice as the voice of its AI assistant. How might consumer surveys help celebrities and individuals find their voices in right of publicity complaints?
Voicing Concern
CEO Sam Altman of OpenAI, one of the leading artificial intelligence platforms, is reportedly a fan of the movie “Her,” starring Scarlett Johannson (and some “Joker” named Joaquin Phoenix). Johansson, acting as a voice actor, plays an artificial intelligence who Phoenix’s character falls in love with. Altman reportedly approached Johansson about licensing her voice for use as the voice of GPT-4o, named Sky; Johansson declined, saying that she felt uncomfortable with the association.
Later, OpenAI released Sky, an upgrade to ChatGPT’s Voice Mode–and Johansson’s legal team noticed that its voice sounds a lot like Johansson’s. Her attorneys sent two cease-and-desist letters to OpenAI, asking that it discontinue any use of Johansson’s voice without Johansson’s permission. OpenAI claims that the voice is not Johansson’s, but that of another, unnamed actress. As artificial intelligence products proliferate, and their inputs must originate from real life, what implications does this hold for individuals’ right of publicity?
The Right of Publicity and AI
The right of publicity, according to the International Trademark Association (INTA), is an intellectual property right protecting against the unauthorized use of a person’s name, likeness, nickname, pseudonym, voice, signature, or photograph for commercial benefit. While federal law protects individuals against misappropriation of their likenesses in false endorsements, there is no right of publicity protected by federal law. Many states recognize right of publicity laws, including California Civil Code 3344, which Johansson would likely use if she were to file an action. However, if Johansson were to file a right of publicity suit, how might consumer surveys be used as evidence for either side?
When a business allegedly uses someone else’s trademark, one or both parties may submit likelihood of confusion surveys as evidence. Consumer surveys could also measure consumer confusion as to whether a celebrity is affiliated with, or has endorsed, a product or service. If Johannson were to sue, a survey measuring recognition of her voice–that is, how famous her voice is–might be useful. A survey could also measure whether her (actual or perceived) voice was a factor for consumers choosing to use ChatGPT over another AI product.
Because courts use consumer surveys as evidence of consumer behavior, surveys can play a critical role in how case law will shape intellectual property. If you require a consumer survey for an AI-related intellectual property matter, contact MMR Strategy Group.
Read more about AI and consumer surveys, here.