Scarlett Johansson’s Legal Battle with OpenAI: A Voice of Contention in the AI Era

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Kate Knibbs

The Potential Legal Battle Between Scarlett Johansson and OpenAI Explained

During a recent demonstration, OpenAI unveiled a new, highly expressive voice feature for ChatGPT named “Sky,” which struck a chord with many for its similarity to the charming AI character Samantha, voiced by Scarlett Johansson, in the 2013 movie Her. Among those who took notice was Johansson herself, who quickly sought legal advice and demanded answers from OpenAI through formal letters, as revealed by a subsequent statement. Reacting to this, OpenAI paused the use of Sky on Sunday and released a statement on their blog clarifying that the voice was not an attempt to replicate Johansson's, but was instead the authentic voice of another professional actress.

In a statement issued on Monday, Johansson expressed her astonishment, frustration, and disbelief at OpenAI's demonstration, which featured a voice she described as uncannily resembling her own, to the extent that both her closest acquaintances and media organizations were unable to distinguish it from hers. She disclosed that she had previously declined an offer from the company’s CEO, Sam Altman, to provide her voice for ChatGPT and noted that he had made a second attempt to persuade her just two days prior to the demonstration last week.

It remains to be seen whether Johansson will pursue further legal measures against OpenAI. Her legal representation in the matter involving OpenAI is John Berlinski of the Los Angeles-based law firm Bird Marella. Berlinski previously represented Johansson in her breach of contract lawsuit against Disney, which was settled in 2021. (Representing OpenAI in this issue is David Kramer of Wilson Sonsini Goodrich & Rosati, a Silicon Valley-based partner who has a history of representing Google and YouTube in copyright infringement lawsuits.) Should Johansson decide to take legal action against OpenAI, some experts in intellectual property law believe she might base her case on "right of publicity" laws. These laws are designed to safeguard individuals against unauthorized use of their name or image.

Cornell University's digital and internet law expert, James Grimmelmann, thinks Johansson might have a strong argument. He points out, "It's not permissible to use another person's unique voice for commercial purposes." OpenAI chose not to respond to this particular story. However, they shared a statement from Altman the previous day, asserting that Sky was not designed to mimic the celebrity and expressed regret to Ms. Johansson for the lack of clear communication.

The legal conflict involving Johansson and OpenAI garnered attention, largely due to the fact that the firm is currently entangled in several legal actions initiated by artists and authors. These creators claim that OpenAI infringed on copyright by employing their artistic outputs to educate AI systems without securing prior consent. However, for Johansson, copyright legislation is unlikely to be applicable since a voice cannot be copyrighted. “It would fall under the right of publicity,” notes Brian L. Frye, a legal scholar with a focus on intellectual property at the University of Kentucky’s College of Law. “That would be her only basis for a claim.”

A number of attorneys consulted by WIRED referenced a landmark lawsuit initiated by Bette Midler against Ford Motor Company and its advertising partner, Young & Rubicam, from the late 1980s as establishing a significant legal framework. Midler had declined the advertising agency's proposals to use one of her songs in a commercial for cars. Subsequently, she filed a lawsuit when the agency enlisted one of her backup singers to mimic her distinctive vocal style. "Ford's strategy was essentially to capitalize on her vocal identity," comments Jennifer E. Rothman, a law professor at the University of Pennsylvania and author of the 2018 publication, The Right of Publicity: Privacy Reimagined for a Public World. "Although her actual voice was not used, the intent was to have someone emulate Midler’s singing closely enough to cause confusion."

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Rothman points out that the crucial factor is not if an impersonation uses someone's real voice, but rather if the sound misleads the audience. Legally, there's a significant distinction between mimicking someone and creating a recording that mimics their "style." According to her, "a style is not proprietary."

Some legal specialists argue that OpenAI's actions don't necessarily constitute direct impersonation. According to Harry Surden, a law professor from Colorado, the likelihood of Scarlett Johansson successfully claiming a 'right of publicity' breach by OpenAI is slim. He points out the minimal resemblance between the voice of the 'Sky' actress and Johansson's voice, referencing pertinent legal precedents, in a post on X on Tuesday. Another expert, Frye, shares similar skepticism. He notes that OpenAI did not falsely claim to present the actual Scarlett Johansson, but rather a digital approximation. Frye elaborates that a legal issue would arise if OpenAI had used Johansson's name or likeness for promotional purposes. However, replicating her voice alone doesn't necessarily infringe on her rights, in his view.

However, this doesn't guarantee that OpenAI is out of trouble. "Jury decisions can be uncertain," Surden remarked.

Frye expresses doubt concerning the outcome of any potential legal action, attributing his uncertainty to the specialized and somewhat obscure nature of publicity rights law. He points out that the U.S. lacks a unified federal framework for these laws, leaving a disjointed collection of state-level regulations instead. Despite describing the situation as chaotic, he notes that Johansson has the option to file a lawsuit in California, a state known for its strong protections for publicity rights.

OpenAI's ability to fend off a lawsuit regarding the right of publicity might be jeopardized due to a single-word message on X, "her," posted by Sam Altman coinciding with the demonstration last week. This was largely seen as an allusion to the movie Her and Scarlett Johansson's role. "It seems akin to AI we've seen in films," Altman stated in a blog entry on the same day.

For Grimmelmann at Cornell, the mentioned references undermine any possible argument from OpenAI that the parallels are merely coincidental. "They deliberately encouraged people to draw a connection between Sky and Samantha. That appears quite unfavorable," Grimmelmann points out. "It raises the question if a legal advisor looked over Altman's tweet about 'her'." Additionally, Johansson's disclosures that the firm had reached out to her not once, but twice, to voice their chatbots make OpenAI's claims that Sky was not designed to mimic Samantha hard for many to accept.

"David Herlihy, a copyright attorney and music industry educator at Northeastern University, described it as a foolish mistake. 'An oversight,' he remarked."

Some attorneys perceive OpenAI's actions as so evidently absurd that they speculate the entire fiasco might be an intentional ploy—that OpenAI calculated it could spark a controversy by proceeding with a similar-sounding project after Johansson chose not to be involved, believing the resulting attention would surpass any negative fallout. "Why do it? In my view, it's all for publicity," comments Purvi Patel Albers, a partner at Haynes Boone specializing in intellectual property cases. "The most convincing explanation—perhaps I'm overestimating their motives—is that they've now become the center of everyone's conversations, haven't they?"

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