Personality Rights in the Age of AI

This week Scarlett Johansson threatened legal action against OpenAI, the company behind ChatGPT. She contends that they asked her to provide voice samples to create a voice for ChatGPT. When she refused, OpenAI created a number of different voices that ChatGPT can use, hiring other actors and synthesizing an AI voice from their vocal samples. One of those voices, Sky, has no been taken down while OpenAI considers their next steps. She wasn’t the only one to note that the voice sounded a lot like her, drawing comparisons to her performance as an AI in the 2013 film Her.

But that doesn’t automatically mean that Johansson has a case. This is another example of how artificial intelligence has upended intellectual property, and how current law is being contorted to fit into a new framework in lieu of new legislation.

If none of Johansson’s actual performances were used, she would primarily rely on personality rights to bring an action. Personality rights exist at the largely at the state level, and not every state protects them. But California, where both OpenAI and Johansson reside, has some of the strongest protections. Personality rights protect the commercial use of one’s likeness, including identifiable features like one’s voice. If a company makes it seem like a celebrity has endorsed their product by using images or voice clips from that celebrity, they’ve likely violated their personality rights.

Personality rights extend to fake or impersonated voices as well. In Midler v. Ford, the Ninth Circuit found that Ford violated Bette Midler’s personality rights by hiring an impersonator to mimic her singing voice in a series of commercials. But here, OpenAI didn’t push claims that Johansson endorsed their product, and insisted it was not her voice. Even if they did make the voice sound like her performance in Her, it’s unclear whether this constitutes a violation of her personality rights. Personality rights never anticipated the speaking voice of an AI.

AI is changing the frontier of entertainment and intellectual property law. In doing so, it’s opening up new legal arguments that the courts will need to wrestle with.

Copyright Office Rules AI Art Ineligible for Copyright Protection

In September of 2022 author Kristina Kashtanova filed her comic book titled Zarya of the Dawn with the US Copyright Office. The Copyright Office issued a fairly routine copyright registration. There was just one problem: the images with the book were generated by the AI program Midjourney. Kashtanova did not disclose this in her original filing. On February 21, 2023, the government revoked her registration and issued a new one excluding the AI produced elements.

The issue of how intellectual property laws will apply to AI generated works is only going to get more important as these tools proliferate. But for now the Copyright Office has issued important guidance consistent with how they have approached non-human works in the past. The Copyright Office cited numerous precedents that only human authors may produce “works of authorship” eligible for copyright protection. Cases where copyright was denied range from photographs taken by monkeys to books that people claimed were written by ethereal beings.

Importantly, the Copyright Office determined that providing the prompts to Midjourney did not constitute an act of creativity sufficient to make her the author of the images. Rather, even though she claimed to guide the long process through trial-and-error, the images were ultimately “produced by a machine or mere machine process that operates randomly or automatically without any creative input or intervention from a human author” because of its unpredictable nature. Further, courts have stated that an author must “actually form” the work in their mind, not created out of an algorithm and training set. While this interpretation may be challenged in court in the future, the first line in the sand has been drawn for copyrighting AI art.

Notably, the examiner determined that providing the AI prompts did not constitute an act of authorship. Firstly, the AI uses random noise against trained data sets to create an image, which results that often do not match what the person providing the prompts intended. Secondly, commissioning a human artist with a prompt would also not make the one who provided the prompt the author of the piece. This shuts down one of the primary arguments for being allowed to register AI generated works.

However, there is still something for those using AI generated artwork to hold on to. The Office registered the text of the comic, as it was written by a human. But it also registered the “selection, coordination, and arrangement” of the images and text into a coherent story. While someone could copy the artwork in the comic, they could not copy the arrangement of the images wholesale. This provides less protection of the individual pieces of the work, but does provide some protection against a wholesale copying of the comic. This may be enough in some circumstances.

The Law Firm of Dillon McCarthy is excited to keep exploring the frontier of intellectual property law in this new world. If you need help with your intellectual property need, please contact us.