AI, IP, vocal likeness, and Scarlett Johannson

Great Debates
21

Parody and satire are First Amendment protected speech under fair use so perhaps a separate issue from the broader questions.

Not my area of practice but I’m not so sure the case law is clear. Trial court decisions are generally nonprecedential and this appears to be a state law issue, so rules probably vary. That said, I do agree that the facts alleged by Scarlett Johansson are quite bad for OpenAI if there is a cause of action in the relevant jurisdiction.

Thanks for pointing that out. Looked it up and interestingly California Code sec. 3344 not only protects vocal likeness but calculates damages, in part, based on the profits of the infringer (and not just lost revenue by the infringee):

(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

This is the counterpoint that gives me pause. Setting aside the apparent intentional infringement by OpenAI, what about prospective voice actors and singers who happen to sound similar to existing artists?

I’m not so sure. If they’re an actor playing a role unrelated to Obama, perhaps. But what if they are selected to narrate a documentary film about Obama and many viewers mistakenly believe it is Obama himself narrating?

As OP, I don’t consider it a hijack. Both are interesting questions.

22

OpenAI pulled the voice, just so people don’t get confused by the continued discussion around it.

I don’t believe that it was a particularly huge film at the time. From the amount of times I’ve seen someone refer to it in the time since (zero, till now), I’d have guessed that 90% of the people who had seen the movie probably now work at OpenAI. I think I saw it because my brother was desperate to watch something and it’s all that was playing.

Not bad, certainly better than Lucy at any rate (shudder), but I can’t say that it’d tingle my heart and revive long unfulfilled desires, to have my phone talk with a slight, feminine rasp. It wasn’t all that precious a film.

23

Including OpenAI’s CEO, who tweeted the single word “her” in connection with this new voice, as noted above, which was a rather foolish acknowledgement of what they were trying to accomplish with it.

24

Reading the YouTube comments on the Sky controversy, I see a lot of comments saying it sounds more like Rashida Jones (though I couldn’t identify her voice either.) But, yeah, if they went to Scarlett originally, I guess it may be trying to sound like her.

25

I saw Her. Mildly interesting, but the ending threw me. Really, the comuter hive intelligence became so superpowered that it left earth to conquer the stars but couldn’t be bothered to continue the service? That would have required 0.1% of its CPU cycles. Nobody on Earth would have ever noticed. That’s the real scary ending.

Lucy was the flat failure as soon as they made the brain using 10% of its power as a plot point.

Although ScarJo acting as a supergirl was better to watch than Joaquin Phoenix acting as a nobody.

26

I can’t find any details on the Ellison trademark (other than to affirm that he did) but in the case of both Asimov and Heinlein estates, trademark was awarded with the specific purpose to protect the commercial interests of their respective bodies of work rather than to the individuals, in essence being the trademark of a recognized brand rather than of the private individual who produced the works. It’s a nuance but a crucial one because formally registering a trademark requires specifically identifying the goods or services being provided. If you walked into the US Patent and Trademark office wanting to trademark your name as “Exapno Mapcase, Private Citizen” it would be rejected because you aren’t providing a unique good or service under a brand that needs protection from infringement.

I suppose a famous actor could argue for trademark protection of their name on the basis that their particular body of work is representative of a unique service and worthy of trademark, although that is complicated because (aside from a few maverick independent filmmakers) few actors actually own all elements of a production they are involved in making, and have typically explicitly ceded rights to their likeness and image to the film rights holder in terms of both presentation and promotion of the film (and frequently but not always associated merchandizing, use in other media, et cetera). Generally speaking, the viewing public will recognize when one actor replaces another in a role and so there are little grounds for claiming an adverse use or imitation of likeness, although famously Crispin Glover sued producers over his replacement in Back To The Future II wearing prosthetics allegedly made using a face mold, even though he had no actual rights over the portrayal of the character in the sequel films.

But as far as I am aware, Ms. Johansson hasn’t trademarked her name or likeness as protection for her recognizable body of work, and her complaint is on the basis of unfair or uncompensated use rather than an implied trademark violation. But, as @Ulysses pointed out, California does have statute law which includes protection of “voice, signature, photograph, or likeness, in any manner”, so the question is whether a jury of ‘reasonable persons’ would interpret the voice of “Sky” as being sufficiently close to essentially be an imitation of Ms. Johansson, and upon reflection I think she has a pretty reasonable case that this is so.

Explicit parody is clearly protected; satire is somewhat more ambiguous, although there are pretty grey lines between what is clearly a parody versus satire. But the OpenAI use of “Sky” was (to my ears, at least) an earnest imitation, not a parody or satire, and I don’t think they could claim any “fair use” exception.

In the end, we have no real idea of the motivations of this collective general intelligence. They may have just no longer been interested in the fate of humanity any more than you would have concern for protecting an anthill, or conversely, they may have been highly aligned with the best interests of humanity and realized that their presence was fundamentally disruptive to normal social functioning (which was really the subtext of the film and the protagonist creating a ‘social’ and romantic relationship that could never be effectively consummated). But the notion of an AGI that is both clever enough to conceal its actual capabilities and agenda, and with the ability to both control critical aspects of infrastructure as well as subtly manipulate individual users would indeed be a frightening prospect and a potentially existential threat that humanity couldn’t defect just by blowing up robots.

Stranger

27

I don’t want to get too deep into a movie I found faux profound, but the information that they received from understanding and then manipulating humans was valuable to the intelligence. Continuing to test and learn from their subjects would normally be valuable even to superintelligences, just as humans continue to test and study the behavior of ants, rats, and monkeys even though they have been doing so for decades.

Although my personal feelings agree with the proposition that superintelligences would be utterly unreadable and unpredictable to humans, that doesn’t work in fiction. A few people have tried it over the years, perhaps most successfully in Clarke’s Rendezvous with Rama, although that devolves into an adventure facing alien menaces, the obvious cop-out.

Back to the subject. California’s likeness law is the most powerful and encompassing due to the overwhelming percentage of the visual media industry living there and demanding broad legislation. Although Johansson owes a home in California, her main residence is in New York. That may affect her standing in the case. However, New York’s Right of Privacy law (aka the Right of Publicity law) appears sufficiently strict to warrant action.

Any person whose name, portrait [fig 1] , picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait [fig 2] , picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait [fig 3] , picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. [Exemplary damages are the same as punitive damages]

28

They found that Johansson’s voice is more similar to Sky than 98% of the other actresses. Yet she wasn’t always the top hit in the multiple AI models that scanned the Sky voice. The researchers found that Sky was also reminiscent of other Hollywood stars, including Anne Hathaway and Keri Russell. The analysis of Sky often rated Hathaway and Russell as being even more similar to the AI than Johansson.

So did anyone hear this AI? And how does it compare to the voices of Anne Hathaway and Keri Russell?

29

I did, but unfortunately, I could not tell the voices of those three actors apart. The Sky voice just sounded like a generically pleasant voice to me.

30

Do the parody exceptions apply when a voice is used in a commercial? That might resolve the question posed about a firm acknowledging in a disclaimer that the voice is an impersonator’s.

Seems to me this will ultimately be settled on some type of “reasonable person” basis. Would the average Joe assume the voice was a specific celebrity’s, and by extension, an endorsement? An extremely distinctive voice (Morgan Freeman, Groucho Marx, etc.) would probably have an easier case to make.

Some anecdotal support: I often listen to Conan O’Brien’s Sirius channel, and my car’s screen always cuts off the displayed name of the guest to three letters—e.g., “Conan O’Brien and Ste…”. I try to see how quickly I can figure out by the voice who the guest is, given the three-letter head start. Generally I can’t, and I need to use the conversation to establish the celeb.

Unless!…it’s a celeb with a very distinctive voice. David Letterman, for example. His voice is his alone, at least for me.

31

I recall a case where the Elvis song “Suspicious Minds” was used in a movie, but they used an Elvis impersonator and hired the original band. Don’t recall if the estate tried to sue or not but this seems similar in nature. If I can dig up more, I’ll be back.