‘Her’ Reality: AI, Scarlett Johansson, and Voice Rights #209

In this week’s episode of The Screen Lawyer Podcast, host Pete Salsich delves into the recent controversy involving Scarlett Johansson and OpenAI. Johansson was asked by OpenAI to lend her voice to ChatGPT, reminiscent of her role in the film "Her," but ultimately  she decided against it. Despite her refusal, OpenAI proceeded with a voice strikingly similar to hers, leading to significant backlash and legal action. Join Pete as he explores the legal ramifications, historical cases, and broader implications of celebrity voice impersonation in media.

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Transcript

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So Scarlett Johansson is in the news, and she was almost in the voice of the most recent version of ChatGPT released by OpenAI. Instead, someone impersonating Scarlett Johansson's voice is the voice used in that. Or I should say, was because right now it's not available because Scarlett Johansson complained about it. Interested? Stick around. Hey, there. Welcome to the Screen Lawyer Podcast. I'm Pete Salsich, The Screen Lawyer. And today on the podcast, we're gonna spend a little time talking about voice impersonation. It's actually something that's gone on quite a bit over the years in Hollywood, and a number of high profile lawsuits involving that very thing to help us sort of understand what's okay and what's not okay, and the use of famous people's voices, either in films or commercials. The most recent event in that long history just happened, and it's involving like a lot of different things these days. OpenAI and ChatGPT and the most recent version of that, which has a talking female voiced virtual assistant that voice intentionally sounded just like Scarlett Johansson. Let's unpack that, because here's what happened. So over the last several months, as OpenAI was getting ready to launch its most recent version of ChatGPT, which includes this voice feature, they were in negotiations with Scarlett Johansson. because, if you may remember, in 2013, in the movie “Her”, she voiced the virtual assistant the Joaquin Phoenix' character fell in love with. And it was a really interesting movie. A lot of foreshadowing in some ways to how we all walk around. We talked to our virtual assistants. We all have AirPods now. I mean, it's it's really actually getting fairly close to some of the things that seemed sort of farfetched in that movie just 11 years ago. But in that movie, Scarlett Johansson obviously was an actress in the movie and used her voice for the virtual assistant character, so she's very much involved in it intentionally. Her, very famous role in some ways for her and her voice is really distinctive. She has one of those unique voices that's very easy to recognize. So fast forward to this year and OpenAI, I went to her to say, we'd love to have that voice for our virtual assistant component of the new ChatGPT. And she considered it. They went back and forth, and ultimately she decided that she didn't want to do it and just said no, gave her reasons. They didn't want to do it. It wasn't you. You got to pay me more money. It was just I don't want to do it. She thought about it long and hard and decided not to be involved with it for a bunch of reasons. So didn't think anything more is going on. Then, just two days before the product launch, after several months of silence, Sam Altman reached out to her again to try to see if he could talk her in last minute to have her voice in there. and apparently they didn't even have a chance to connect on that outreach before the product launched. And of course, what did Sam Altman do? He tweeted just one word in quotes her, well, that was the title of the 2013 movie in which Scarlett Johansson's voice was prominently used for the virtual assistant. Well, of course, Scarlett Johansson had not given permission. And clearly, Sam Altman, OpenAI wanted the world to be reminded of Scarlett Johansson. This wasn't accidental. And so. And if you listen to that voice that was during that release, it sounds exactly like Scarlett Johansson. It's very hard to tell the difference. So immediately people started reacting. Fans started noticing, I mean, the the connection was too obvious. Maybe even maybe even too obvious for some. Certainly too obvious for Scarlett. And she immediately had her representative send letters, two different letters demanding that they remove it, because this violated her rights under California's version of the right of publicity, the name, image and likeness law. And there really is no doubt that this voice that was on the release was intended to invoke and sound like and frankly, fool people into thinking it was Scarlett Johansson. Take a listen. Here is the clip from the 2013 movie with Scarlett Johansson. Hello. I'm here. Hi. How are you doing? Now here is a clip from OpenAI's version of the voice of its virtual assistant, which it named Sky. Hello! I'm really excited about teaming up with you and I'm all set to dive in. So how can I make your life easier? Pretty hard to tell the difference, right? Let us know what you think. Drop a note in the comments. Give us your thoughts. How closely do those voices sound to each other? And of course, as soon as those letters came out, the first response from OpenAI was complete denial. No, there's no similarity whatsoever. It's just incidental. apparently, sort of, I guess maybe that was just a last second thought for Sam to tweet “Her”. Who knows? But then there's a second letter. More allegations. And fairly quickly they backpedaled and said, oh no, we we didn't mean to do that. We respected her. In fact, we had a different actress hired months ago to replicate the voice. Well, it's the same thing, right? You're hiring someone else to sound like her. And it's interesting. In this case. You know, my first thought when I heard about this was that they had generated the voice entirely through the AI system, and I have a feeling that's kind of what they would like you to believe. But then later on, they said, no, we actually hired another actress to do this. It's still a copy of Scarlett Johansson, and that's how it's going to tie into this other line of cases. Why? I think she's absolutely right on the law in this case. But ChatGPT response was, oh, that wasn’t intentional. We had already done that with somebody else. And then it says, you know, but out of just out of respect for Scarlett, we're going to pull or we're going to pause right now. And so they pulled it. You know, you don't pause or pull it if you did everything right. Not with a launch that big. But, you know, in some respects, the whole thing sort of plays out a little too much like an intended effort to draw even more attention to the product. So we'll talk about that in a second, because sometimes there are strategies where the players know that this is against the law. They know they can't do this, but they've got enough money in the budget and we're talking lots and lots of money behind OpenAI to put up with whatever legal hassles there are for a while, simply because the eyeballs and eardrums will be attracted. And that's the goal. So interesting to see whether that's the case. But in any event, right now, the prevailing, rule, I think, is that Scarlett Johansson and her attorneys were exactly right, that that use of her voice in that way on a commercial product, absolutely without her consent. And there's no doubt about that. She did not ever give consent. She expressly said no. So without consent like that is absolutely a violation of her right of publicity. Her name, image and likeness. But you say, well, wait a second. Name, image and likeness. This is a voice that isn't any one of those three. And that's why I think it's a little bit of a misnomer. We're all using nil to describe this right now because of the prominence that it's gained in connection with college sports. And now college athletes are finally able to effectively do what everybody else on the planet could do, which is make money by using their name, image, likeness, their identity as a public figure to promote products, to make advertisements, to sell things. and that's a right that existed. Now we call it nil because that's the terminology we're using. But this case reminds us that it's not specifically just your name or your image or your likeness. It's really your professional identity. And for certain people, not everybody, but for certain public figures, their voices are so unique and so widely recognized that their voice itself, without any other imagery or their name, becomes part of their identity such that someone else can't just copy it and use it without their permission, because that is, in fact, using their identity to sell a product without their consent. The baseline elements of a right of publicity claim under California law, and frankly, under just about any right of publicity law anywhere in the country. The right of publicity for voice appropriation only has been recognized for a while. And the earliest cases were involved, two very famous voices in their own right. Bette Midler and Tom Waits. So Bette Midler, very famous voice, famous actress. Famous singer. sort of a unique voice in styling. the divine Miss M., huge star in her own right. Ford Motor Company wanted to make a commercial and actually wanted to use one of the songs that, from her album in it, and wanted her to sing a new version in its commercial, and she said no. Well, what happened is an advertising agency then hired someone else to sound just like it, to copy her voice, in fact, and sing one of those songs. And so they went and chose somebody else to effectively portray Bette Midler in voice only and in a commercial against the consent of Bette Midler again. They had asked her. She said no. So when they filed a lawsuit in court, had to determine, is this identity, this voice unique enough? And said, yes, and Ford Motor Company was found liable. Tom Waits had a similar situation with Frito-Lay. And if you know Tom waits, I certainly couldn't do a Bette Midler voice. I can sort of pretend to try to do a little Tom Waits. But the point is, he's got this raspy, really well known voice, very, very unique in the music world. And he was known publicly to talk about how he would not allow any of his music to be used in commercials. He thought that really, he didn't want his tours sponsored. He really thought that undermined the message of the music, the independent nature of the art. So he was well known. They didn't even bother trying. They just. Frito lay hired somebody else to sound just like Tom Waits. And they specifically use, again, advertising agency doing this on behalf of the brand, hired a musician singer who had, over the last ten years, actually done a lot of Tom waits covers and they notes say specifically to use the same type of voice. So in both the Bette Midler and Tom waits cases, like the case with open AI and Scarlett Johansson, there's no doubt that the Speaker and Ford Frito lay open AI through their advertising agencies or by themselves intend to copy a famous voice instead of agreeing to whatever terms, or simply acknowledging that that person had said no and going somewhere else. All three cases the. In fact, of the two cases it went to try. there was either, litigation in favor of the singer or settlements in favor of the singer to avoid further litigation, because there's no doubt that they, the courts recognized these cases involve the use of someone else's, a public figure's identity without their consent. And that's all that was necessary. You know, and Hollywood's done this in other ways, too. Not just with voice, but Crispin Glover, who was famously in the original back to the future movie as Marty McFly's dad. Well, when it came around in the second, second, the first sequel, the back to the future two, he did not want to be involved in it for a lot of reasons. Partly he didn't think how he like the message ended up, as in the trilogy and other aspects where he was treated on set. For whatever reason, he was not going to be involved, turned down the role going forward. Well, if you remember those movies, there's a lot of jumping around in time. Of course, and we we see some of the same scenes from the first movie, repeated with different outcomes in the later movies. So they really had to have Marty's dad again. So what they did is instead hired a different actor who was roughly the same size and shape, same color hair as, as Crispin Glover. But then they went and they put a prosthetic nose on him and did other things to change his physical appearance, to effectively fool the audience in thinking it's the same actor. I was literally talking to somebody about that this morning, and he said, really? It was a different actor and all three. That was the intention. And if you imagine a lot of people don't really realize that that's what happened. But he got upset. He filed a lawsuit, said, you effectively you're using my identity. You're copying unique features of me and the settled and ended up getting $760,000 in a settlement out of that. So, in effect, he maybe he might have gotten $1 million to play the role. He got 760,000 for not playing it. Interesting how that outcome came, but it's an example. Again, same sort of thing. The the people didn't care. The people making the art, the making, the larger production didn't really care about whether or not the individual who owned their identity would say yes or would agree. They simply said, well, we'll get somebody else, we'll get some. We'll sound just like you. You're not that important is kind of the message that comes through. Well, the courts have recognized that if that other person's whatever aspect of their identity that you copied or used without their permission, if it's well known enough, that is a violation of the right of publicity, and you do not have the right to do that in your project, especially in a commercial or as part of a product, or as part of a film which has a commercial basis. There's no fair use way around this thing. This isn't oh, were you making some creative use of, you know, a prior copyrighted work? There's no fair use defense to the right of publicity other than to the extent if you want to say truthful things about public figures, you don't need their consent. But the moment you put it into your product someplace where you and you're not really intending to, that you're intending to steal their identity or you use it to sell a product, for example, then there's no defenses whatsoever. You either have their permission or you don't. So I think in this situation, Scarlett Johansson is the latest in the line that includes Crispin Glover, Bette Midler, Tom Waits and probably others where something about that voice of hers which is so unique is her identity. It's part of her right of publicity. It is a property right that she owns and can control the use of in certain circumstances. And in this case, she said no. And she's right. So I don't know exactly what the next how this is going to turn out in terms of the product in the future. But it's interesting to note, you know, I mentioned earlier that I think in some ways this almost seems like a stunt from the start. There's no there's too much money behind OpenAI. There's too much going on with the court challenges. There are a lot of lawyers working on all aspects of these releases. I guarantee it. And to just think that this was okay and not going to be allowed means essentially those lawyers weren't reading any of these other cases, and I just don't believe that's the case. So my sense is maybe they said, screw it, we'll talk her into it the last minute when she hears how great it is or who knows. But for whatever reason, they went through with it, even if you look at the responses now and then. Well, yeah. But then, oh, we're we're just going to respect her. The point is there's been more coverage of that voice out in places where people weren't probably going to see you yet to get ChatGPT just yet, who now are going to find it because of this use of Scarlett Johansson's voice, it's probably already served its purpose, and no way to undo that. I don't know, you know, they pulled it quick enough. I don't know if she's going to be able to argue any sort of damages. Be interesting to see. Conceivably there's some amount of profits that maybe were generated during the short period of time that was available or something. I don't know how the damages claim ends up getting asserted, but it wouldn't surprise me if this if they don't just say that's enough, but maybe take an effort to do a little bit more hard to tell. We'll we'll keep an eye out for you and let you know if there's any updates. But it's a reminder that in all of this stuff, remember we talked last year on this podcast about the Sag-Aftra strike and one of the concerns that the actors had that needed to be addressed in some way was Hollywood studios ability to use AI to effectively cut humans out of future work, and at the time, it was mostly thought more of how it would impact the rank and file. Right? Because the fear was for the extras and the people with small roles who really depend on the ability to control their own identity, and doing it again and again and again, could literally have their whole being digitized in one by working on one film. And then the studio just use that digitized image and place it in a western or under the sea, or out in space or whatever. And that was a fear. And so there was some language written into the contract that does prevent that up to certain points. But the reality, I think, around that time was that most of the people whose identities were well known enough were would be people like Scarlett Johansson, who are above the line, are not signing a standard crew deal memo that gives all rights to all aspects of the appearance. Instead, they would be able to negotiate certain things like you can use me for this, but not for others. You can't use me in promotion. Or if you can, you have to pay more for things like that that the stars could negotiate, but the rank and file could not. And yet here we have one of those certainly totally A-list stars being victimized in exactly the same way by AI. It's not really AI generating her work, but that's in the works to had a conversation with somebody else the other day about some aspects in the music world where the technology is out there for studios who have access to or labels that have access to artists, recordings can essentially use the actual voice to train the AI, who then can translate those songs into other languages and have it sound just like the original artist, but just with different words translated in different languages. And how does that work? What rights are necessary there? Well, I think it's kind of the same thing. It's clearly using something that this individual had the rights to. And of course, you're not going to do this if the if the sound of the original singer isn't famous enough to warrant this level of translation, to make it not sound like a Chinese person singing the Rolling Stones, but to sound like Mick Jagger singing Chinese. Very different thing and yet possible with AI if you start with the original artist voice. And so in that situation, I think you could see this issue coming up or see negotiations around this one more area where AI's out in front of the law, but the law already has things that exist that can be used, if properly framed, to help rein it in. So we're going to be keeping an eye on all of this, like we always will hear on The Screen Lawyer. So if you like today's content, you like our audio podcast, find us and follow us wherever you get your audio podcasts. We release a new episode every other Wednesday, and we'd love to have you find and follow us. Share and continue to join us that way. 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