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Comment by jmclnx | Hacker News Reader

If it goes to court, it will be an interesting case and may have big ramifications.

I believe the person used was selected because she sounded like Scarlett. If guilty, will it be illegal for people sounding like famous people get voice work ?

I have heard ads with people sounding like various US Presidents over the years, could doing that be illegal ?

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> If guilty, will it be illegal for people sounding like famous people get voice work ?

It continues to baffle me that people formulate this issue as it just being about the similar voices as opposed to OpenAI's efforts to capitalize on ScarJo's likeness by making explicit references to ScarJo and her work, in combination with using a similar voice.

Obviously, it is not against the law to have a similar voice as someone. Obviously, it is against the law to capitalize upon another person's likeness without their permission. I don't understand why people pretend it's hard to distinguish between the two categories, it's not.

Just to be clear here, which of these two circumstances do you believe is at play in the johannsen v OpenAI dispute?

> Obviously, it is against the law to capitalize upon another person's likeness without their permission.

This seems similar to MikeRoweSoft.com[1] which was ultimately settled instead of being tested in court.

Maybe closer, does this line of thinking mean that the twins Mary-Kate and Ashley Olson[2] couldn't have distinct professional acting careers without one another's explicit permission because of their similarity (capitalized on for Full House) as one would necessarily infringe on the likeness of the other? That seems like a bridge too far.

[1] https://en.wikipedia.org/wiki/Microsoft_v._MikeRoweSoft

[2] https://en.wikipedia.org/wiki/Mary-Kate_and_Ashley_Olsen

>Maybe closer, does this line of thinking mean that the twins Mary-Kate and Ashley Olson[2] couldn't have distinct professional acting careers without one another's explicit permission because of their similarity (capitalized on for Full House) as one would necessarily infringe on the likeness of the other? That seems like a bridge too far.

What line of thinking? Right of publicity laws are not new. If one of the twins purported to be the other, yes, why wouldn't the other twin have a claim? What is controversial about that?

> If one of the twins purported to be the other, yes, why wouldn't the other twin have a claim?

I agree that attribution is key.

Since identical twins are often confused, the issue resolves itself with credit. But absent some attribution or credit, it seems like there would be a similar problem in the case of twins. This seems like why credits in works of entertainment are particularly important.

I'm just left wondering if OpenAI discloses who provided the voice and that person isn't prohibited from entering the marketplace of "voice work" (which would seem unfair?) then it seems like this would fizzle out?

IMO it has no bearing who did the voice, the issue is if OpenAI intended to confuse people by associating the similar voice with ScarJo through their marketing. The issue isn't the voice confusion on its own, it's that OpenAI is inducing it by bringing up ScarJo and her work in their marketing of the voice product.

ScarJo obviously doesn't care about the individual voice actress, the voice actress would not have sufficient money to cover any damages ScarJo would allege, especially in comparison to a well-capitalized company like OpenAI. Let's use our heads for a second.

“Obviously” isn’t really a legal argument, though.

I'm not making a legal argument, I'm discussing the absolutely awful intuitions constantly being put forth in the discussion of this potential case on HN.

Because it's not obvious and just using that word over and over again doesn't make it true.

Did OpenAI want to use a similar voice to Scarlett Johansson's specifically because it's her, and they want to capitalize off of her fame or her personhood specifically?

Or did OpenAI want to use a voice that sounds pleasant and appealing and as it so happens Scarlett Johansson has just such a voice and used such a voice in a famous movie about a talking AI?

In other words, if Scarlett Johansson had a different voice, perhaps even an unappealing one, would they still have used it because it's something particular about her fame and character they wanted to leverage, or did they use a similar sounding voice to hers because of the technical qualities of that voice that she happens to have and which has been demonstrated by her to be effective.

There are many other potential scenarios that one can argue are relevant to this case, and ultimately my point is that this case isn't obvious unless you come to it with an opinion already made up and have failed to appreciate the numerous points of view.

> In other words, if Scarlett Johansson had a different voice, perhaps even an unappealing one, would they still have used it

Not what you meant, but: No, of course not, because then Johansson wouldn't have been in Her.

Right, but one can imagine a popular film about AI casting a voice actor not because the voice actor has an appealing or soothing voice, but because the actor is themselves very popular and will draw a large audience. Perhaps say Arnold Schwarzenegger is cast and OpenAI decides to create a voice very similar to the one Arnold uses in that movie because OpenAI wants to leverage the fame associated with that movie, that character, or Arnold himself. In that case the argument would be very strong that OpenAI is taking advantage of personality rights as opposed to mimicking a nice sounding voice that suits their product.

According to your argument, Scarlett Johansson was not cast in Her because something about her personhood would draw audiences to the movie, or something about her personality and character was being leveraged, but rather that her voice has some nice technical properties that made it a suitable choice for the movie.

In that case, the argument is less strong that OpenAI is infringing on Scarlett's personality rights, and more the case that they liked the properties and qualities that her voice has, and when she specifically turned down the offer to lend her voice to OpenAI, OpenAI found someone else who had similar properties and qualities as a replacement.

> According to your argument...

I wasn't making one.

I didn't say her case was obvious. I said there are obviously two categories of types of conduct, one falling into a legal category and one falling into an illegal category. My observation is that much of the discussion here seems to not even acknowledge the reality that Right of Publicity laws exist and what they entail. That really has nothing to do with whether or not her case is good. Your response here seems to further my point, in that you completely run past that and instead debate the specifics (which we don't all know and aren't all privy to, and would be the disputed facts in any potential litigation).

Because women's objections are ignored and women are expected to provide more proof than men. Scarlett Johansson is the third woman so far who made it clear that she is not happy with Altman's/OpenAI's conduct, but they all are being asked to provide more proof of harm done. In case you missed it--his sister made serious allegations and was ignored; then a female board member went public with her reasons for resigning and people say its sour grapes; and now Scarlett Johansson is objecting to Altman suggesting that it was her voice even after he was told that she is not interested in working with OpenAI.

His mentally ill sister that the entire family says is lying, about something that allegedly happened when he was a small pre-pubescent child himself. And plenty of people are not attacking either the board member or Scarlett Johansson. Public opinion is at least definitely with SJ.

This really has nothing to do with how women are treated.

Surely there must be precedence here. This can't be the first time people hired sound-a-like voice actors for something.

Yes, and a case with a lot of similarity too. https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co.

This is interesting because the district court seems to initially have decided the opposite of Tom Waits vs Frito Lay (http://tomwaitslibrary.info/biography/copyright/frito-lay/).

Looks like the appellate court came to the same conclusion though, a famous person's voice is distinctive to their identity and intentionally imitating it is a type of false association claim.

Yes, AIUI from discussion here last week, Waits used the final Midler verdict as precedent.

I think it might go the Google vs Oracle way. The courts might do the right and ethical thing (Google wins) but the basis will be a specific workaround (fair use of APIs) instead of something beneficial for society as a whole (APIs can't be copyrighted).

> If guilty, will it be illegal for people sounding like famous people get voice work ?

The question implies that you believe a professional voice actor has a single voice they can use. That is a silly thing to believe.

What if it was their natural voice and cadence?

People can sound alike or even identical.

People can sound alike, but if you hire someone because they sound like someone famous hoping people believe you hired the famous person, that's bad.

OpenAI's claim is that they used the voice actors' natural voice

> That is a silly thing to believe.

I think it's silly to believe that celebrities should own voices

What if I look like a famous actor/actress or model? Should I not be allowed to act or model professionally?

Or if I sound like a famous singer, should I not be allowed to sing for profit?

What if my paintings have a similar style to a famous painter, should I not be allowed to paint for a living?

Actors use stage names all the time because the actors union doesn't allow duplicate names. Emma Stone's birthname for example is Emily Stone, who is another actor. Actors and musicians are also known to seek as much uniqueness as possible to be able to trade on that uniqueness. If you were a talented singer or painter you'd have trained early on to develop your own distinct voice or style, it's how the music and art schools work.

If you impersonate another actor for profit claiming to be him/her you may be facing legal action. There is a difference in selling yourself as "Scarlett Johansson" vs. "A Scarlett Johansson impersonator" vs. your own name/stage name. If it's covert and deceiving, you are in trouble, if it is overt, you are fine and that's why they world has so many Elvis impersonators. Although I see a new market opening for Kate Moss impersonators https://news.ycombinator.com/item?id=40498668

When it comes to works of art, if you tell the buyers/viewers it's yours you are fine, but if you paint a copy of a famous painting and claim it to be the original one, you are a criminal.

Do you have evidence that this voice actor was billing herself as a Scarlett Johansson impersonator or anything of that sort?

Advertising by using Her and contacting Scarlett befohand are the dooming factors. Likely not actor’s fault but instead the leads of OpenAI.

You were asking about a hypothetical situation in which you may find yourself. That's what I addressed in my reply. The person whose voice was used does not pretend to be SJ afaik. It's the communications between OpenAI and SJ and Altman's tweets that created an ambiguous situation similar to someone trying to ask an attractive person out, being told it's not going to happen, but publicly winking and suggesting that there is something going on. It backfired. OpenAI and Altman are trying to get out of it, but their time of being the darlings of the media is over. There will be more scrutiny of their actions.

I'm not a lawyer, so I don't know if this is relevant or not, but it's not really Scarlett Johansson's voice we're talking about, it's "the character in Her that Scarlett Johansson voiced". I'd be surprised if Scarlett's natural voice matches the one in Her - I assume she would have changed her pitch and/or cadence for the movie to match the director's requirements. Samantha's voice in Her has a subtle, 'not-quite-natural' sound to it, which would make sense for a computer-generated voice.

Can the movie studio that produced Her claim copyright over Samantha's voice? If they release "Her 2" without Scarlett Johansson, could the movie studio hire someone who sounds like Scarlett to play Samantha's character?

I don't think this case is as simple as people make it out to be. Even Sam Altman's tweet: "Her", seems to confirm they took inspiration from the movie Her, so is it wrong to hire a voice actor that sounds like the character in the movie? If Sam had tweeted, "Scarlett", then it would be very different.

I will assume that imitating Reagan to sell X products (that are not insulting the to the memory of Reagan) would be "ok". But Reagan is dead, and I don't feel that using a voice similar to his (or Clinton's who's still alive) removes bread from their table.

If everyone deliberately starts using a voice 'like' Johansson's, or the image 'like' Johansson's, that would steal the bread from her table.

I don't know if there are laws/cases covering 'lookalikes' but it's kinda like that.

No. Contrary to layperson belief, there is little new in deepfakes. People have been faking the image of celebs for many years decades (SNL) and faking their personality even further (Hustler v Falwell, Lohan v GTA). The porn industry has an entire genre dedicated to parodies of famous people and famous situations. And there are the professional celeb lookalikes. Every historical film involves someone trying to mimic a real person. Imagine if Winston Churchill's estate started going after every actor who has ever used "his" accent without permission. All of those are situations where the mimicry was done blatantly and openly. This is a case where the mimicry is contested at best. The only hope would be to somehow prove literal copying, her voice fed into that software.

And pity every other upcoming actor who looks/sounds vaguely similar to an existing famous person. Shall they be gagged, the very sound of their voice owned by someone else?

Is literal copying a necessary element for a right of publicity claim? I don't think so, but I don't litigate them. I would think that OpenAI's conduct in referencing ScarJo and her body of work in relation to the voice would allow for a reasonable inference that they intended the public to believe it was ScarJo's voice, and not that of a similarly sounding voice actor?

from the article: "It doesn’t matter whether a person’s actual voice is used in an imitation or not, Rothman says, only whether that audio confuses listeners"

Do you have non-layman knowledge about these kinds of claims?

That's fair use. Fair use is limited to commentary, search engines, criticism, parody, news reporting, research, and scholarship.

OpenAI will try and claim fair use, but I don't think they'll succeed.

Fair use only applies to copyrighted material. A voice, a mode of speech, is not copyrightable. Step one in a copyright defense it to prove that no "taking" occurred, or that any involved material wasn't protected by copyright (Lohan v. GTA). Only then do you get to affirmative defenses such as fair use (Hustler). This case would not get that far, not absent evidence of literal copies of her recorded voice being played back by the software.

Parody is considered fair use because the public knows that it isn't the celebrity.

This isn't the case here.

If you want analogies it's like creating a Ferrari body, putting it around a cheap car and trying to sell it.

> If you want analogies it's like creating a Ferrari body, putting it around a cheap car and trying to sell it.

A proud tradition?

https://en.wikipedia.org/wiki/Chrysler_300

Eh, what? No, not at all. That was, if anything, the other way around.

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