Scarlett Johanssen v OpenAI. So what’s going on?

Written by Principal Jennifer Tutty and solicitor Lucy Diggle.

OpenAI has moved to withdraw one of its five new voices users can chose to speak with on AI platform ChatGPTA after actress Scarlett Johanssen claimed the voice of ‘Sky’ a generative AI chatbot, sounded eerily similar to her own.

Johansson was approached by the tech giant in 2023 as they sought to commercialise her voice for ‘Sky’, admitting to the actress that they hoped to leverage the ‘comforting’ sound of her voice to appease users who are wary of the technology. Johansson declined the offer.

What does Scarlett want?

In a letter issued by Johansson’s lawyers, she requested evidence of how the company formulated the voice of Sky. OpenAI issued a response clarifying that Sky was ultimately voiced by another actress, however, due to privacy reasons they would not disclose her identity.

Does Scarlet own any rights to her voice?

The source of Johansson’s concern is the infringement of her publicity rights (aka personality rights). Publicity rights protect a person's name, image, likeness, voice, and other personal characteristics from being used commercially without their permission. Such commercial uses regularly involve use of an individual’s identity for advertising, endorsement and other promotional activities.

In the US, the right of publicity is regulated exclusively through state laws, as there is no federal recognition of such right. Some states recognize the right of publicity through common law, while others have established it through statutes.

What is ‘the right of publicity’?

In the US, the right of publicity refers to the right of an individual to control the commercial use of their identity, including their name, image and likeness. It is a property right as opposed to a personal right, meaning the validity of the right survives the death of the particular individual concerned and the right can be transferred to another person.

The right of publicity will be infringed where a party uses, without permission, an aspect of the identity or personality of the individual concerned in such a way that the individual is identifiable from the party’s use and such use is likely to cause damage to the commercial value of the individual’s identity.

Although over half of US states have a statutory right of publicity, it is important to note that not all US states do. In states where no such right exists, personality rights are protected through the law of unfair competition, specifically the law of misappropriation. ?

Do we have a ‘right of publicity’ in Australia?

We do not have any statutory right of publicity in Australia like in some US states.?

If an individual (such as a celebrity) is concerned that another person or organisation is using aspects of their identity (i.e. their voice or likeness) for a commercial advantage, the individual will need to make a claim under the Australian Consumer Law (ACL) or the tort of passing off.? The individual may also have rights under trade mark and/or copyright laws.

How does the ACL and tort of passing off help protect an individual’s identity in Australia?

An individual may seek injunctive relief and/or financial compensation if a person or organisation uses aspects of the individual’s identity and in the process of doing so, contravenes the ACL or commits the tort of passing off.

For example, section 18 of the ACL prohibits traders in the course of trade or commerce from engaging in conduct which misleads or deceives, or is likely to mislead or deceive, consumers. In addition, section 29 of the ACL prohibits the making of false and misleading representations in trade or commerce that goods or services have a sponsorship, approval or affiliation that they do not have.

To prove passing off, the individual must show (1) they have goodwill or a reputation in the aspect of their identity that is being used; (2) in using the individual’s identity the other person or organisation has misrepresented to the public that there is some sort of affiliation or association between the individual and the other person or organisation; and (3) the individual has suffered some kind of loss as a result of the misrepresentation.

Unfortunately, making claims under the ACL and tort of passing off can be quite difficult to prove and very costly.

Can trade mark and copyright law help protect an individual’s identity?

Yes! And this can be very effective both legally and from a cost perspective.

An individual may choose to register their name or likeness as a trade mark, whereby they will have exclusive statutory rights to use these for selected goods and services. At Studio Legal, we highly recommend high profile individuals take steps to register their name and likeness as trade marks in Australia and internationally.

If they own or control the copyright in their likeness (for example in a photo or a graphic artwork), an individual may also restrict uses of these works via copyright laws.

So, where’s all this heading?

Copyright laws around the world are struggling to keep up with the array of new legal issues caused by the creation and use of generative AI tools such as ChatGPT.

With the law so uncertain, it’s very hard to predict whether celebrities like Scarlett Johansson will be successful in fights like the one described above.

For now, we are very much ‘watching this space’ with intrigue.

Written by Principal Jennifer Tutty and solicitor Lucy Diggle.

If you are looking for advice on how to protect your identity against misappropriation, please get in touch with the author or via email [email protected] or 03 9521 2128.

Image used for the purpose of reporting the new (Dia Dipasupil/Getty Images).