AI, Identity, and the Right of Publicity
Jul 11, 2024 | Law Student Blog,
By Zoe Qiu, Washington University School of Law, Juris Scientiae Doctor Candidate, 2026
If you’re interested in artificial intelligence and follow updates from major AI tech companies, you might have heard about the dispute between OpenAI and actress Scarlett Johansson.
In May 2024, OpenAI introduced its latest AI model, ChatGPT-4o, featuring advanced voice assistant capabilities. The controversy began during a live demonstration when many noticed that the voice of one of its AI assistants, named Sky, sounded strikingly like Johansson’s—particularly reminiscent of her role as an AI assistant in the movie “Her.”
This similarity is difficult to dismiss as mere coincidence. OpenAI had approached Johansson twice to voice the AI assistant, and shortly after the demonstration, OpenAI CEO Sam Altman tweeted the word “her” on X, seemingly encouraging comparisons to Johansson’s performance in the movie.
So, what did Johansson have to say about this? The actress expressed her shock and dismay on X, noting the uncanny resemblance of the assistant’s voice to her own. Her legal team sent two letters to OpenAI, requesting details on how the AI voice assistant “Sky” was developed.
In response, OpenAI paused the use of “Sky” and denied any connection between Johansson and the voice. “The voice of Sky is not Scarlett Johansson’s, and it was never intended to resemble hers,” the company stated. They added that the voice was developed from another actress, whose identity remains undisclosed to protect her privacy.
Although the matter seems to have settled down over the past two months, and Johansson may not sue OpenAI since the company has ceased using the voice of “Sky,” this incident still gives artists, writers, and other creatives much to consider regarding artificial intelligence and identity protection.
What are the legal implications?
Someone might ask if OpenAI had indeed used a different actress whose voice is like Johansson’s to create Sky’s voice and did not actually use Johansson’s voice, would this still be an issue?
The answer is “Yes.” OpenAI could face legal consequences for making ChatGPT’s voice sound similar to Scarlett Johansson’s, whether intentionally or not. One of the most mentioned topics by lawyers is the “right of publicity,” which is widely considered to be one of Johansson’s strongest potential legal claims.
So, what is the “right of publicity”?
The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity—such as a nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit. While this right is typically invoked by celebrities and other public figures, anyone has the right to protect their name, image, and likeness, even if they’re not famous. There is no single, unified right of publicity; instead, it is generally protected under state common and statutory law in the United States. Although not all states directly recognize the right of publicity, the majority recognize it under the right of privacy.
The difference between the “right of publicity” and “the right of privacy”
The right of publicity is distinct from the right of privacy. The right to privacy is designed to guard individuals’ personal rights against emotional distress—the right to enjoy life and be left alone. This concept can be traced back to an article in the 1890 Harvard Law Review authored by Samuel D. Warren and Louis D. Brandeis. In contrast, the right of publicity is recognized as a property right, primarily intended to protect the commercial value of the image that a person has cultivated in becoming a celebrity. Therefore, it is sometimes interpreted in conjunction with the Lanham Act, which addresses false endorsement claims, as in trademarks or false advertising.
Additionally, while an individual’s right to privacy generally ends when the individual dies, publicity rights associated with the commercial value connected with an individual’s name, image, or voice may continue. For example, many estates or representatives of celebrities and public figures continue to control and license the use of those figures’ names, likenesses, and other personal attributes when state law allows.
Are there any past legal precedents worth noting?
Two cases closely resemble the scenario between OpenAI and Johansson:
Midler v. Ford Motor Co. (9th Cir. 1988)
In this case, singer Bette Midler sued Ford Motor Company for hiring one of her backup singers for a commercial and instructing the singer to “sound as much like Bette Midler’s record as possible.” Midler had previously refused to sing in the commercial, but Ford nonetheless used a sound-alike voice actor to recreate her voice. The 9th Circuit Court of Appeals found Ford’s appropriation of Midler’s voice to be a tort under California’s right of publicity laws, holding that “when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.”
Tom Waits v. Frito-Lay, Inc. (9th Cir. 1991)
This case is like the Midler v. Ford case. Singer Tom Waits sued Frito-Lay for misuse of his voice after the company’s advertising agency got someone to imitate Waits in a parody of his song in a Doritos commercial, despite Waits having declined to participate in endorsements. Waits claimed this unauthorized use of his distinctive voice violated his publicity rights and constituted a false endorsement. The jury awarded Waits $2.5 million in damages, a decision upheld by the Ninth Circuit Court of Appeals.
The above two cases involve manufacturers imitating iconic voices without permission to gain commercial benefits. In addition to the protection of voices, there are other cases that demonstrate the right of publicity extending to various circumstances:
White v. Samsung Electronics America, Inc. (9th Cir. 1992)
In this case, Samsung dressed a robot to resemble Vanna White from “Wheel of Fortune” in an print advertising campaign and had it turn tiles displaying different letters of the alphabet. Samsung did not obtain permission from White before airing this advertisement, and White was never mentioned by name in the ad. After the appeals court reversed and remanded the trial court’s summary judgment grant for Samsung, the trial court awarded Vanna White damages and ruled that protection against the unauthorized use of likenesses can extend to the use of “look-alikes” in advertisements.
Carson v. Here’s Johnny Portable Toilets (6th Cir. 1983)
The founder of Here’s Johnny Portable Toilets, Inc. used the well-known phrase “Here’s Johnny” tied to comedian/talk show host Johnny Carson as his company’s name, with an understanding that the public associated the phrase with Carson. The appellate court protected Johnny Carson’s right of publicity by means of the signature phrase against uncompensated commercial use.
Application and Consideration
The above cases demonstrate that mimicking someone’s distinctive and commercially valuable personal attributes for financial gain can be actionable. For artists, authors, musicians, actors, photographers, and all other creatives, it is necessary to be vigilant about the unauthorized use of personal attributes that represent their identity for profit, including but not limited to their name, image, likeness, face, voice, and even a mere phrase. However, whether a creative has a case will depend on various factors. Such factors may include: “Have they sought and were they refused permission for the reference?”, “Did they try to create something to mimic the creative’s personal attributes for commercial advantage?”, “Would people be confused about whether the creative is endorsing the product?” … and so on.
If the creatives can prove that their identifying features are distinctive enough and akin to unregistered trademarks, and that imitation could mislead consumers into thinking they are endorsing the products being sold, their chances of winning the case will greatly increase.
Conclusion
Stealing someone’s voice or likeness is nothing new, as the cases above all occurred well before AI was created. However, AI has obviously made it easier. Additionally, the challenge comes from the lack of federal right to publicity laws, as each state designs its own regulations differently. For example, New York now recognizes that everyone has the right to control the commercial use of their personal characteristics, even extending this right to deceased individuals who lived in the state at the time of their death, whose estates must give prior consent for the use of a computer-generated replica. In contrast, California, where OpenAI is headquartered, does not specifically mention the use of digital replicas like AI-generated voices in its law. Nevertheless, the Midler v. Ford decision and its progeny have established that California protects a living person’s voice and image from being used in commercial activities without consent. While we must take into account the varying rules of different states when considering how to protect our personal characteristics, more than half of the states have established some form of right of publicity legal protection.
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