It doesn’t matter whether a person’s actual voice is imitated or not, Rothman argues, all that matters is whether that sound confuses listeners. In the legal system, there is a huge difference between imitating and simply recording something “like” someone else. “Nobody has their own style,” he says.
Other legal experts do not see OpenAI’s actions as clear impersonation. “I think any potential ‘right of publicity’ claim against OpenAI by Scarlett Johansson would be quite weak, given the only superficial similarity between the ‘Sky’ actress’s voice and Johansson’s, according to relevant case law,” Colorado law professor Harry Surden wrote on X on Tuesday. Frye also has doubts. “OpenAI has not said or even implied that it offers the real Scarlett Johansson, only a simulation. If it used her name or image to advertise its product, it would pose a publicity rights issue. However, merely cloning the sound of her voice is probably not true,” he says.
But that doesn’t mean OpenAI is necessarily obvious. “Jurors are unpredictable,” Surden added.
Frye is also unsure how the case will play out, as he says publicity law is a fairly “esoteric” area of law. In the United States, there is no federal right of publication law, only a set of state statutes. “It’s a mess,” he says, although Johansson could sue in California, which has quite strict publicity laws.
OpenAI’s chances of defending a publicity rights lawsuit may be weakened by a one-word post on X…her” – from Sam Altman on the day of last week’s demonstration. It has been widely interpreted as a reference to Her and Johansson’s performance. “It looks like artificial intelligence from the movies” – Altman he wrote that day in a blog post.
According to Cornell’s Grimmelmann, these references weaken any potential defense OpenAI might mount by claiming that the whole situation is a big coincidence. “They deliberately invited the public to identify Sky and Samantha. It doesn’t look good,” says Grimmelmann. “I wonder if the lawyer reviewed “her” Altman tweet.” Combined with Johansson’s revelations that the company actually tried to get her to operate a voice for its chatbots – twice – OpenAI’s insistence that Sky is not meant to resemble Samantha is difficult for some to believe.
“It was a senseless move,” says David Herlihy, a copyright lawyer and music industry professor at Northeastern University. “Miscalculations.”
Other lawyers find OpenAI’s behavior so obviously asinine that they suspect the whole scandal may be a deliberate marketing stunt – OpenAI assessed it could cause controversy by making a similar pitch after Johansson declined to participate, but the attention it would receive seemed to outweigh it over any consequences. “What’s the point? I say it’s the publicity,” says Purvi Patel Albers, a partner at the law firm Haynes Boone, which often handles intellectual property cases. “The only huge reason – maybe I’m giving them too much importance – is that everyone is talking about them now, right?”