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Comment by qarl | Hacker News Reader

> You are dead right that the order of operations recently uncovered precludes misappropriation.

I don't think that follows. It's entirely possible that OpenAI wanted to get ScarJo, but believed that simply wasn't possible so went with a second choice. Later they decided they might as well try anyway.

This scenario does not seem implausible in the least.

Remember, Sam Altman has stated that "Her" is his favorite movie. It's inconceivable that he never considered marketing his very similar product using the film's IP.

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There are 4 other voices including male and androgynous ones. It wasn’t a second choice. Those voices have been available since 2023.

That's irrelevant. According to Midler v. Ford:

"We hold only 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."

Ford having multiple ads would not have changed the determination.

The voice doesn’t sound like her and the article shows there’s a fair amount of proof to back up the claim that it wasn’t meant to and that there was no attempt to imitate her.

> The voice doesn’t sound like her

And yet so many people think it does. What a weird coincidence.

> there’s a fair amount of proof to back up the claim that it wasn’t meant to

Sam has said his favorite movie is "Her". Sam tweeted "her" the day it was released. Sam wrote to ScarJo to try to get her to do the voice. OpenAI wrote to her two days before the release to try to get her to change her mind. A large percentage of the people who hear the voice thinks it sounds like ScarJo.

I think we're just going to have to agree to disagree about what the evidence says. You take care now.

I interpret it completely differently given that the voice actor does not sound like SJ.

1. OpenAI wants to make a voice assistant. 2. They hire the voice actor. 3. Someone at OpenAI wonders why they would make a voice assistant that doesn’t sound like the boss’s favorite movie. 4. They reach out to SJ who tells them to pound sand.

Accordingly, there is no misappropriation because there is no use.

I understand that the voice actor does not sound like ScarJo to you.

But you need to understand that it does sound like ScarJo to a lot of people. Maybe 50% of the people who hear it.

Those kinds of coincidences are the things that make you lose in court.

Well, I’m glad at least I know the things that make you lose in court now. I’m appreciative for the lesson.

No problem. You take care now.

The voice is different enough that anyone who listens to samples longer than 5 seconds side by side and says they can’t tell them apart is obviously lying.

All the reporting around this I’ve seen uses incredibly short clips. There are hours of recorded audio of SJ speaking and there are lots of examples of the Sky voice out there since it’s been around since September.

That's a different standard: "Can you tell them apart side-by-side" vs. "does this sound like person X" or "is this voice exploiting the likeness of person X". It's the latter question that is legally relevant.

To elaborate on the other comment -

It doesn't even need to sound like the person. It's about the intent. Did OpenAI intend to imitate ScarJo.

Half the people of the world thinking it's ScarJo is strong evidence that it's not an accident.

Given that "Her" is Sam's favorite movie, and that he cryptically tweeted "her" the day it launched, and that he reached out to ScarJo to do the voice, and that the company reached out to her again to reconsider two days before the launch -

I personally think the situation is very obvious. I understand that some people strongly disagree - but then there are some people who think the Earth is flat. So.

I don't think the intent matters (though it's moot in this case because I think there is clear intent): If someone unknowingly used a celebrity's likeness I think they would still be able to prohibit its use since the idea is that they have a "right" to its use in general, not that they have a defence against being wronged by a person in particular.

For example if someone anonymously used a celebrity's likeness to promote something you wouldn't need to identify the person (which would be necessary to prove intent) in order to stop have the offending material removed or prevented from being distributed.

> I don't think the intent matters

The closing statement of Midler v. Ford is:

Deliberate is a synonym for intentional.

The passage you cited reads "we hold only that when" (compare with "we hold that only when") which I understand as that they are defining the judgment narrowly and punting on other questions (like whether the judgment would be different if there were no intent) as courts often do. In fact the preceding sentence is "We need not and do not go so far as to hold..."

It might make sense for intent to be required in order to receive damages but it would surprise me if you couldn't stop an inadvertent use of someone's likeness. In fact the Midler case cites the Ford one: 'The defendants were held to have invaded a "proprietary interest" of Motschenbacher in his own identity.'. I think you can invade someone's "proprietary interest" inadvertently just as you can take someone's property inadvertently; and courts can impose a corrective in both cases, in the first by ordering the invasion of proprietary interest be stopped and in the second by returning the taken property.

Fair enough. But then Midler v Ford doesn't support your argument. Do you have a case that does?

No. (I did cite the Ford statement about "proprietary interest" which I think supports my argument).

I'm not familiar with all the case law but I assume that no case has been brought that directly speaks to the issue but people can and do discuss cases that don't yet have specific precedent.

Well - sure - for exotic areas of the law. Can the president pardon himself, etc.

Just seems like this area isn't that exotic.

I don't think that's true. I can't cite them off the top of my head but when I read about supreme court cases often a big point of contention of the ruling is whether they decided to issue a narrow or broad ruling. Sometimes they decide to hear a case or not based on whether it would serve as a good basis for the type (narrow/broad) ruling they want to issue.

And the legal universe is vast with new precedent case law being made every year so I don't think the corpus of undecided law is confined to well known legal paradoxes.

As for this case it doesn't seem that odd to me that the issue of intent has never been at issue: I would expect that typically the intent would be obvious (as it is in the OpenAI case) so no one has ever had to decide whether it mattered.

I dunno man. You sound like a nice guy and all - but I don't think you can make hypothetical legal arguments. It needs to be rooted.

I don't see much merit in continuing our discussion. You take care now.

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