Actress Scarlett Johansson sent a cease-and-desist letter to OpenAI, alleging that the company unlawfully used her voice for its AI assistant. As the use of synthetic voices expands, how might consumer surveys help celebrities and individuals protect their identities in right-of-publicity disputes?
Voicing Concern
Sam Altman, CEO of OpenAI, publicly expressed admiration for the 2013 film Her, in which Scarlett Johansson voices an artificial intelligence character opposite Joaquin Phoenix. Some time after the movie came out, Altman approached Johansson about licensing her voice for GPT-4o, OpenAI's conversational AI model, named Sky. According to reports, Johansson declined, citing discomfort with the association.
When OpenAI released the Sky voice feature in ChatGPT's Voice Mode, Johansson's legal team noted that the voice sounded strikingly similar to hers. In response, her attorneys issued two cease-and-desist letters demanding that OpenAI cease using Johansson's voice without permission.
OpenAI denied the allegation, stating that the voice belongs to a different, unnamed actress. This dispute raises legal issues regarding AI and voice replication, as well as the boundaries of fame, identity, and consent.
The Right of Publicity and AI
The right of publicity, as defined by the International Trademark Association (INTA), is an intellectual property right protecting against the unauthorized commercial use of a person's name, likeness, nickname, pseudonym, voice, signature, or photograph.
Federal law prohibits false endorsements and misappropriation of likenesses under the Lanham Act; however, the right of publicity is primarily a state-level protection. In California, for instance, Civil Code §3344 recognizes the right to control the commercial use of one's identity, a statute Johansson could invoke if she were to file suit in California. If such a claim were pursued, either party could use consumer survey evidence.
Consumer Surveys in Right of Publicity Cases
In cases alleging unauthorized use of a person’s identity, consumer surveys can provide empirical measures of public perception and potential confusion. For example, a likelihood-of-confusion survey could assess whether consumers believe Johansson endorsed or was affiliated with OpenAI or its ChatGPT product; a fame or awareness survey could determine how well-known Johansson's voice is among relevant consumers, helping establish it as a distinctive identifying attribute; and a materiality survey could assess whether consumers' choice to use ChatGPT was influenced by their perception that Johansson's voice was involved in the product.
Courts frequently rely on survey evidence to understand how consumers interpret and respond to allegedly misleading representations. As AI-generated media becomes more sophisticated, consumer surveys could help shape the case law at the intersection of AI and publicity rights.
Survey Evidence and the Future of AI Law
AI applications raise questions of identity, authenticity, and consent. Consumer surveys may provide a means for courts to determine how consumers perceive AI-generated content. IMS Legal Strategies designs and conducts consumer surveys to support litigation involving false endorsements, right of publicity, and AI-generated content.
If you require reliable consumer research for an AI-related intellectual property matter, contact IMS Legal Strategies.
