[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...