Ari Cohn: I don't think the reasoning of Midler can so cleanly be transposed to creating a voice for a specific character. It's obvious that Midler's singing voice, ubiquitous in her work, is her own identity. Less obvious that a character voicing relates to SJ's identity.

Remember when everyone was absolutely certain about the thing that totally happened and exemplified everything wrong with "AI culture" that ended up being...not what happened? www.washingtonpost.com/technology/2...

OpenAI didn’t copy Scarlett Johansson’s voice for ChatGPT, records showwww.washingtonpost.com A different actress was hired to voice OpenAI’s “Sky” months before CEO Sam Altman contacted Scarlett Johansson, according to documents and the actress’s agent.

You know, the argument that it's a different voice didn't work so great when a certain company hired a backup singer for Bette Midler and instructed her to sound so similar that listeners basically couldn't tell the difference. Why should this be viewed any differently?

Well, for atarters, very different facts. The singer was singing a song Midler had previously recorded.

And in this situation, a vocalist was hired to perform a vocal affectation Johansson had previously recorded for film and Altman admitted to being a huge fan of and literally reached out to her about replicating. The medium hardly matters when the action (not accepting no + copycatting) is the same.

I don't think it's "part of her identity" in the way the 9th Circuit found to be the case for a singer.

Voice *is* part of your identity, and this is a clear effort to profit off of and use her creative labor and value, just with a voice actor instead of singer. It's also a violation of consent, from a company lead by a guy accused of not being candid and regularly critiqued over copyright attitudes.

The court did not say that voice is automatically part of everyone's identity. That's not how this works.

This is such a ludicrous assertion to make in an era where AI voice mimics are literally scamming family members. People can be recognized and identified as the individuals they are by their voice, both written and spoken. That's a feature of personal identity.

But that's not how rights of publicity work

But, but, but... Which publicity rights don't work like that? Bc in my part of the media ecosystem, it's considered standard ethical practice to accept "no" as "no," and not use someone's identity or likeness in a context they did not consent to or in a manner that misrepresents them or their work.

I hate to be the bearer of bad news, but what is lawful is not necessarily ethical or morally correct.

You're not bearing any news, though - just taking the OpenAI company line at face value? I'm more than aware the law is not an ethical bellwether, and that it lags behind the tech - but there is a reason identity thieves use people's voices for phone scams. This issue also has relevant precedent.

"Identifiable by something" is not sufficient to render that thing protectable by rigbt of publicity. I think that's the piece you may be missing.

I'm just going to leave this here, since it contains information you may be missing: The court wrote, "what they sought was an attribute of her identity." bsky.app/profile/gbbr...

If copyright law destroys the AI industry remember who to thank

You might stop to consider that this snippet does not represent the full context of the decision. Perhaps before telling a lawyer that they are wrong, question how confident you are in what you think you understand.

You might stop to consider that the person you are engaging with has studied and reported on media law as a professional? I'm literally engaging with precedent here, and speaking of... Maybe this will help: law2.umkc.edu/faculty/proj...

waitslaw2.umkc.edu

“We recognized in Midler that when voice is a sufficient indicia of a celebrity's identity, the right of publicity protects against its imitation for commercial purposes without the celebrity's consent.”

“Waits' voice misappropriation claim is one for invasion of a personal property right: his right of publicity to control the use of his identity as embodied in his voice.”

The criteria for consideration: “The court's instruction directed the jury to decide whether Waits' voice is distinctive, whether his voice is widely known, and whether the defendants had deliberately imitated his voice.”

It has to be "a sufficient indicia of a celebrity's identity."

which i'd argue the "her" tweet cemented. based on wapo's reporting, i'm going w/ - they selected the actress bc of her resemblance to ScarJo, because of Her, Altman sought to get the real thing, failed, etc etc

I don't think the reasoning of Midler can so cleanly be transposed to creating a voice for a specific character. It's obvious that Midler's singing voice, ubiquitous in her work, is her own identity. Less obvious that a character voicing relates to SJ's identity.

i'm not weighing in on the legal implications. i'm just saying the facts look like: they did a call, they realized an actress sounded like ScarJo and that appealed bc of Her. So she was cast. They then decided they wanted the real thing, that failed, so they went ahead, and noted the resemblance.

where that fits in the legal schema? not my field.

Let me ask you this: How do you imagine Disney would respond to an AI voice based on an intentional imitation of an animated character by a company that asked, was told no, and then did this circuitous act because they wanted to profit and experience it in a way that could easily be disparaging?

That's a distinguishable fact pattern that actually highlights one of my points: Disney, the owner of the character, might be on better footing.

really not an expert here but wouldn't this suggest some ambiguity? caselaw.findlaw.com/court/us-9th...

WENDT v. Paramount Pictures Corporation, a Delaware corporation, Defendant-Intervenor. (1997) | FindLawcaselaw.findlaw.com Case opinion for US 9th Circuit WENDT v. Paramount Pictures Corporation, a Delaware corporation, Defendant-Intervenor.. Read the Court's full decision on FindLaw.

Possibly, but I think there's a better argument than in that case that a character voice is part of the "creative elements" of the character. Maybe I'm wrong on that, but I think it's an easier call when the disputed likeness is physical than a created single-purpose voicing.

Perhaps there's a continuum even within the voiced characters space. One one end,may be an easier call for someone like H. John Benjamin: his voicings are all relatively true to his everyday voice. On the other end you might have people who do wacky characters that have no resemblance to the actor.

(This may bear no resemblance to reality; just spitballing here)

Post-Wendt the contracts all changed. Scarlett Johansson probably has the best contract there is, but we'd need to know more.