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.

Scarlett Johansson's Lawsuit Against Disney Highlights the Importance of Precise Contract Drafting

2020 was a strange time for many industries, the film industry included. The big studios began experimenting to try and salvage their revenue in a year of movie theater closures. One of the big changes tried by giants like Warner Bros. and Disney was releasing films simultaneously to theater and on demand streaming. "Black Widow” was one of the victims of this strategy. Disney released it to theaters and on their streaming service Disney+ on July 9, 2021.

Traditionally, big stars receive a portion of the box office when they agree to star in a blockbuster, and Scarlett Johansson’s in “Black Widow” was no exception. But the box office receipts only apply to theatrical showings, not to viewings at home. This has resulted in an explosive lawsuit on her part against Disney, accusing them of violating her contract with them by not releasing the film exclusively theatrically for a period of time.

These claims will play out either in court or, most likely, in a settlement agreement. But they reveal how non-specific language in entertainment contracts can lead to disputes. The complaint alleges that the contract stated the film would receive a theatrical release. It did, and I’m sure Disney would rather you see it that way. But Johansson’s legal team argued that as a “term of art”, a generally understood phrase that everyone in the film industry would read the same, “theatrical release” should be understood as an “exclusive theatrical release.” She further cites to e-mails between her and Disney lawyers clarifying this position.

How might prevail here is a complex issue. But that’s the point. A lawsuit like this will need to address concepts like terms of art, good faith and dealing, and a host of other difficult legal subjects. These are the pitfalls of writing a contract assuming the sides are in agreement, rather than ensuring the contract is very clear and all important points. This would have never gotten this far were the contract to state either position clearly: either the theatrical run isn’t exclusive or it is, stated explicitly on the page.

This is why it’s important to carefully consider every provision of an entertainment contract, making sure that it unambiguously states what those signing think it does. As streaming changes the landscape, stating how it should be handled will become more important than ever. This is why it’s important to have a considerate lawyer on your side during contract negotiation. The Law Firm of Dillon McCarthy aims to ensure that everyone can be represented when negotiating entertainment contracts.