In May, OpenAI, the creator of ChatGPT, released a demo of ChatGPT-4o which featured a voice-enabled chatbot called “Sky.” Many commentators noted after the initial release of the demo that “Sky” sounded a lot like Scarlett Johansson, the actor famous for (among other things) voicing the AI virtual assistant in the Spike Jonze film Her. After these initial reports, Johansson released a statement explaining that Sam Altman, the founder of OpenAI, had previously contacted her about voicing the ChatGPT system, but she ultimately declined. She also reported that Altman reached out again two days before the release of the ChatGPT-4o demo asking her to reconsider his offer; however, the product was released before they could connect. On the day of the demo’s release, Altman tweeted the single word “her” as if to reference the film.
Following reports of the similarities, Johansson sent two letters through her attorneys to Altman and OpenAI setting out her side of the events and asking them to detail how the “Sky” voice was created. Though OpenAI has since publicly stated that a different voice actress provided the voice for “Sky”, “Sky” was removed from ChatGPT-4o after Johansson’s letters were received.
Even with “Sky” removed from ChatGPT-4o, many wonder what claims Johansson could bring against OpenAI and whether she would be successful. In situations such as this one, there are two primary claims that celebrities bring: (1) a Right of Publicity claim, and (2) a False Endorsement claim under the Section 43(a) of the Lanham Act.
The Right of Publicity protects against the misappropriation of a person’s name, voice, likeness, and other indicia of personal identity for commercial benefit. In short, a person’s name, voice, likeness, etc. cannot be used to promote a product or service without that person’s consent. The interesting issue with Right of Publicity is that the laws vary from state to state and there is currently no federal Right of Publicity law establishing a uniform standard (though bills have been introduced in Congress to create one). A claim for a violation of Johannson’s Right Publicity would argue that OpenAI used her voice (an indicia of her personal identity) to promote and/or benefit OpenAI by creating an association between the two (a commercial benefit).
Though the Lanham Act is generally known for protecting trademarks, it also provides protection against false endorsement: false or misleading representations of fact in the advertising and sale of goods and services. This includes creating the false impression that someone has endorsed a product or service. In this case, the use of Johansson’s voice as part of ChatGPT, particularly in a commercial announcement promoting the software, could falsely lead consumers to believe that she in fact endorsed the product.
As to the potential success of these claims, though generative AI technology is relatively new, courts have analyzed similar fact patterns and found for the celebrities. Bette Midler sued Ford for using an impersonator to imitate her singing in a series of commercials. Similar to Johannson, Ford had approached Midler but she refused to participate. After the commercials aired, she was told by a number of people that the voice in commercials sounded exactly like hers. The court ruled in Midler’s favor saying that her voice was distinct and well-known, entitling her to protection. Similarly, Tom Waits sued Frito-Lay after their ad agency released a commercial containing a parody of his song “Step Right Up” using a singer selected specifically to mimic his voice. The courts ruled in Waits’ favor relying on the decision in Midler’s case. If Johansson were to bring a lawsuit, precedential case law will likely act in her favor.
Whether Johannson will pursue further legal action against OpenAI is still unknown, but the implications of OpenAI’s action could be far reaching, including galvanizing Congress into establishing a federal Right of Publicity and deepening the general public’s distrust of AI and technology companies that create them.
