It doesn’t matter whether a person’s real voice is used in an imitation or not, Rothman says, only if that audio confuses listeners. In the legal system there is a big difference between imitating and simply recording something “in the style” of another person. “Nobody owns one style,” she says.
Other legal experts don’t see what OpenAI did as a clear impersonation. “I think any potential ‘right of publicity’ claim by Scarlett Johansson against OpenAI would be quite weak given the only superficial similarity between the ‘Sky’ actress’ voice and Johansson’s, according to relevant case law,” said the law professor at Colorado Harry Surden. wrote in X on Tuesday. Frye also has doubts. “OpenAI did not say or imply that it was offering the real Scarlett Johansson, just a simulation. If she used her name or image to advertise her product, it would be a right of publicity issue. But just cloning the sound of her voice probably isn’t it,” she says.
But that doesn’t mean OpenAI is necessarily safe. “Juries are unpredictable,” Surden added.
Frye is also unsure how any case might play out, because he says the right of publicity is a fairly “esoteric” area of law. In the United States there are no federal laws on the right of publicity, only a patchwork of state statutes. “It’s a disaster,” he says, although Johansson could sue in California, which has fairly strong right-of-publicity laws.
OpenAI’s chances of defending a right of publicity lawsuit could be weakened by a publication of a word in X—“his”—from Sam Altman on show day last week. It was widely interpreted as a reference to His and Johansson’s performance. “It looks like AI from the movies,” Altman wrote in a blog post that day.
For Grimmelmann at Cornell, those references weaken any potential defense OpenAI might mount claiming that the entire situation is a big coincidence. “They intentionally invited the public to make the identification between Sky and Samantha. She doesn’t look good,” says Grimmelmann. “I wonder if a lawyer reviewed Altman’s tweet?” Combined with Johansson’s revelations that the company had tried to get her to provide a voice for her chatbots (twice), OpenAI’s insistence that Sky must not look like Samantha is difficult for some to believe.
“It was a crazy move,” says David Herlihy, a copyright attorney and music industry professor at Northeastern University. “A miscalculation.”
Other lawyers see OpenAI’s behavior as so patently ridiculous that they suspect the whole scandal might be a deliberate stunt: that OpenAI felt it could stir controversy by going ahead with a sound-alike after Johansson refused to participate, but that the attention that he would receive seemed to compensate for any consequences. “What’s the point? I say it’s advertising,” says Purvi Patel Albers, a partner at the law firm Haynes Boone who often handles intellectual property cases. “The only compelling reason (maybe I’m giving them too much credit) “It’s just that now everyone talks about them, right?”
