[kaiwen1]

There are many people with voices similar to Scarlett Johansson's. If SJ is unwilling to be a voice actor for OpenAi, then why should OpenAI not find a similar voice and use that instead? SJ certainly does not have a monopoly on all voices similar to hers. Anyone in possession of such a voice has the same right as SJ to monetize it. And someone did in fact exercise that right. If you compare the Sky voice to SJ's, they're not the same.

OpenAI's mistake was caving to SJ. They should have kept Sky and told SJ to get lost. If SJ sued, they could simply prove another voice actor was used and make the legitimate argument that SJ doesn't have a monopoly on voices similar to hers.

[sillysaurusx]

I too am mystified.

I think what’s going on here is that Scarlett is famous, and so media outlets will widely cover this. In other words, this latest incident hasn’t riled up people any more than usual — if you scan the comments, they’re not much different from how people already felt about OpenAI. But now there’s an excuse for everybody to voice their opinions simultaneously.

They’re acting like the company literally stole something.

It also didn’t help that OpenAI removed the Sky voice. Why would they do that unless they have something to hide? The answer of course is that Scarlett is famously rich, and a famously rich person can wage a famously expensive lawsuit against OpenAI, even if there’s no basis. But OpenAI should’ve paid the cost. Now it just looks like their hand was caught in some kind of cookie jar, even though no one can say precisely what kind of cookies were being stolen.

[campbel]

IANAL, but I think the mistake they made was constantly referencing the movie 'Her' when talking about Sky.

[nomel]

Regardless of the exactly voice spectrum, the plot would apply with any flirty female voice. It was not a movie about Scarlett Johansson. It was a movie about AI eliciting a relationship.

For the “her” reference(s?), was there anything beyond the single tweet?

[CRConrad]

> It was not a movie about Scarlett Johansson. It was a movie about AI

With Johansson voicing the AI. And now they're marketing their AI sounding like Johansson, referencing the movie that had Johansson voicing the AI.

Yeah, no similarities at all there.

[nomel]

> they're marketing their AI sounding like Johansson

This is subjective. I, personally, don't hear it, at all: https://news.ycombinator.com/item?id=40435695

[danielmarkbruce]

100%. This whole thing is more stupidity than anything else. There is nothing wrong with using a voice that sounds like her. There is everything wrong with referencing the movie and sort of implying it is the voice from the movie. They could have easily let others make the connection. So dumb.

[sillysaurusx]

Why is it wrong to explicitly mimic a part played in a movie? Are we saying that the actor owns their portrayal of the role?

OpenAI should’ve owned their actions. "Yes, we wanted to get a voice that sounded like the one from Her." There’s nothing wrong with that.

[pseudalopex]

> OpenAI should’ve owned their actions. "Yes, we wanted to get a voice that sounded like the one from Her." There’s nothing wrong with that.

https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co.

[danielmarkbruce]

Not an IP lawyer, but I think the company that produced the movie owns the relevant IP, and Johansson might also own IP around it.

You can have an opinion on it, but they are going to get sued. Just like I can't take Moana and throw her in an ad where it says "I like [insert cereal here]", they can't take a character and use it without expecting Disney/whoever to come sue them.

[pests]

Actors get a lot of rights to their likeness.

So, yes maybe?

[sillysaurusx]

Hmm. Being able to say "thou shalt not make a character similar to Her" is a lot like saying "thou shalt not make a video game character similar to any other." It’s not an explicit copy, and their name for Sky was different. That’s the bar for the videogame industry; why should it be different for actors? Especially one that didn’t show her face.

This whole thing is reminiscent of Valve threatening to sue S2 for allegedly making a similar character. Unsurprisingly, the threats went nowhere.

[lelandfe]

You've really contorted the facts here. This isn't a character, it's a voice.

The voice sounds remarkably like Scarlett Johansson's.

[Blackthorn]

> then why should OpenAI not find a similar voice and use that instead?

That's assuming they did, right now they're asking us to pretty please trust them that their girlfriend from Canada is really real! She's real, you guys! No I can't show her to you.

[breadwinner]

Agree. And what about people who look similar to SJ? Are they precluded from acting jobs, simply because SJ became an actor first?

[limitedfrom]

I encourage you to look through this case: https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co.

[sillysaurusx]

1. The case is from 1988. That’s the year I was born. Societal norms are in a constant state of flux, and this one case from 36 years ago isn’t really an indication of the current state of how case law will play out.

2. Ford explicitly hired an impersonator. OpenAI hired someone that sounded like her, and it’s her natural voice. Should movies be held to the same standard when casting their actors? This is about as absurd as saying that you’re not allowed to hire an actor to play a role.

[lelandfe]

Midler is actually quite similar. Midler didn't want to do a commercial, and refused an offer, so they hired a lookalike that fooled her friends. The appellate court held that Ford and its advertising agency had "misappropriated" Midler's voice.

Waits v. Frito Lay, Inc was '92, and cited it. They used a Tom Waits-sounding voice on an original song, and Waits successfully sued:

> Discussing the right of publicity, the Ninth Circuit affirmed the jury’s verdict that the defendants had committed the “Midler tort” by misappropriating Tom Waits’ voice for commercial purposes. The Midler tort is a species of violation of the right of publicity that protects against the unauthorized imitation of a celibrity’s voice which is distinctive and widely known, for commercial purposes.

https://tiplj.org/wp-content/uploads/Volumes/v1/v1p109.pdf

Of course, who knows what a court will find at the end of this. There is precedent, however.

[sillysaurusx]

Thank you. I didn’t know it was similar specifically for voices in commercial use.

That’s annoying, but we live in a country with lots of annoying laws that we nonetheless abide by. In this case I guess OpenAI just didn’t want to risk losing a court battle.

I still think legal = moral is mistaken in general, and from a moral standpoint it’s bogus that OpenAI couldn’t replicate the movie Her. It would’ve been cool. But, people can feel however they want to feel about it, and my personal opinion is worth about two milkshakes. But it’s still strange to me that anyone has a problem with what they did.

[calf]

I was born in 1983 and it is wrong to make profit off of someone else's art without their permission. It isn't strange at all. This includes using an impersonator. This excludes parody intentions.

So the overall argument isn't strange, you just disagree without having articulated exactly what biases you to disagree. It is moral disagreement ultimately.

[djur]

> OpenAI hired someone that sounded like her, and it’s her natural voice.

They say so, yes. Seems like they didn't want to go through discovery in order to prove it.

[dragonwriter]

> The case is from 1988. That’s the year I was born. Societal norms are in a constant state of flux, and this one case from 36 years ago isn’t really an indication of the current state of how case law will play out.

Correct, while Midler presents a similar fact pattern and is a frequently taught and cited foundational case in this area, the case law has evolved since Midler, to an even stronger protection of celebrity publicity rights, that is even more explicitly not concerned with with the mechanism by which the identity is appropriated. Waits v. Frito Lay (!992), another case where voice sound-alike was a specific issue, has been mentioned in the thread, but White v. Samsung Electronics America (1993) [0], while its fact pattern wasn't centered on sound-alike voice appropriation, may be more important in that it underlines that the mechanism of appropriation is immaterial so long as the appropriation can be shown:

—quote—

In Midler, this court held that, even though the defendants had not used Midler's name or likeness, Midler had stated a claim for violation of her California common law right of publicity because "the defendants … for their own profit in selling their product did appropriate part of her identity" by using a Midler sound-alike. Id. at 463-64.

In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the defendant had marketed portable toilets under the brand name "Here's Johnny"--Johnny Carson's signature "Tonight Show" introduction–without Carson's permission. The district court had dismissed Carson's Michigan common law right of publicity claim because the defendants had not used Carson's "name or likeness." Id. at 835. In reversing the district court, the sixth circuit found "the district court's conception of the right of publicity … too narrow" and held that the right was implicated because the defendant had appropriated Carson's identity by using, inter alia, the phrase "Here's Johnny." Id. at 835-37.

These cases teach not only that the common law right of publicity reaches means of appropriation other than name or likeness, but that the specific means of appropriation are relevant only for determining whether the defendant has in fact appropriated the plaintiff's identity. The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable. It is noteworthy that the Midler and Carson defendants not only avoided using the plaintiff's name or likeness, but they also avoided appropriating the celebrity's voice, signature, and photograph. The photograph in Motschenbacher did include the plaintiff, but because the plaintiff was not visible the driver could have been an actor or dummy and the analysis in the case would have been the same.

Although the defendants in these cases avoided the most obvious means of appropriating the plaintiffs' identities, each of their actions directly implicated the commercial interests which the right of publicity is designed to protect.

–end quote–

> Ford explicitly hired an impersonator. OpenAI hired someone that sounded like her, and it’s her natural voice.

Hiring a natural sound-alike voice vs. an impersonator as a mechanism is not the legal issue, the issue is the intent of the defendant in so doing (Ford in the Midler case, OpenAI in a hypothetical Johansson lawsuit) and the commercial effect of them doing so.

[0] https://law.justia.com/cases/federal/appellate-courts/F2/971...

[lelandfe]

Nice write up, thanks.

Unrelated, but as someone who came along into this world after Carson's Tonight Show, I had no idea that that moment from The Shining was a play on that. Today's lucky 10,000.

[CRConrad]

You keep harping about the "forty-year-old law!" (actually only 36), as if that meant it were somehow bad or irrelevant.

So I guess you wouldn't mind if someone killed you, since laws against murder are much older than that? Shit, outmoded old boomer thinking, amirite?

Wow, when you realise how you're coming off here...

[hnburnsy]

>OpenAI's mistake was caving to SJ. They should have kept Sky and told SJ to get lost. If SJ sued, they could simply prove another voice actor was used and make the legitimate argument that SJ doesn't have a monopoly on voices similar to hers.

Yes, they should have not reached out again, but now they are screwed. In no way will they want a trial and associated discovery. SJ can write her own ticket here.

[gamblor956]

OpenAI caved immediately because they knew they would lose a lawsuit and be looking at a minimum of an 8 figure payout.

Voice impersonation has been a settled matter for decades. It doesn't matter that they used another actress. What matters is that they tried to pass the voice off as SJ's voice several times.

[FireBeyond]

> OpenAI's mistake was caving to SJ. ... If SJ sued, they could simply prove another voice actor was used and make the legitimate argument that SJ doesn't have a monopoly on voices similar to hers.

Or... hear me out... maybe they couldn't prove that, which is why they caved. Caved within a day or so of her lawyers asking "So if it's not SJ's voice, whose is it?"

[gxyt6gfy5t]

Can they make that claim if SJ voice exists in the training data before fine tuning? We don’t know what they train on

[rrrrrrrrrrrryan]

If they told the voice actor to try to impersonate SJ, then Scarlett does have a case.

That may not be how it should work, but it is very much how the law currently works.

[asadotzler]

Not quite. All the had to do was tell themselves in discoverable email that they were going to seek out someone who sounded like ScarJo, or emails to the recruiter saying they wanted someone to mimic the Her voice.

[FMecha]

See Waits vs. Frito Lay.

[kaiwen1]

In that case, as I understand it, the voice actor intentionally mimicked Waits, purposefully using his intonations, style of speech, and phrasing, all of which were not natural to the voice actor. He was intentionally mimicking Waits. I doubt the same claim can be made of the Sky voice actor.

[asadotzler]

Doesn't matter if the voice was natural or not if there are emails at OAI saying "find us someone who sounds just like ScarJo." I suspect there are and that's why SamA turned pussy and ran.

[djur]

OpenAI had the opportunity to prove as much in court and chose not to.

[nojvek]

Sky sounded quite different to SJ. Them taking the voice off means they are accepting guilt it seems.