ScarJo Oh No! Unraveling Scarlett Johansson’s Claims Against OpenAI

The drama round OpenAI utilizing a Scarlett Johansson soundalike for its new digital assistant – a transfer arguably designed to evoke the actress’s function as, uh, an AI assistant in Spike Jonze’s sci-fi film, “Her” – has led to a renewed debate about what rights public figures have of their likenesses, voices, and different hallmarks of their identities.

Public figures like Scarlett Johansson depend on rights of publicity – often known as title, picture, and likeness rights, or NIL – to regulate the usage of their identification. NIL rights exist as a state-by-state patchwork; some states have expansive rights, whereas others provide restricted or no safety. The normal rationale for NIL rights goes one thing like this: You, as a public determine, have a likeness that’s commercially worthwhile to many individuals. Firms assume that your obvious endorsement will increase gross sales, entice prospects, or in any other case generate worth for them. It doesn’t matter that the interior logic could appear tenuous (John Cena sporting crocs), or outright foolish (Snoop Dogg hawking Sizzling Pockets, anybody?). The corporate needs to make use of one thing identifiably related to your identification to promote a product. NIL rights present a treatment in conditions the place that identifiable likeness is used with out approval. This consists of soundalikes – an utility of the legislation that has had a few of its personal very entertaining reality patterns. 

So this looks like it may very well be an open-and-shut case for Johansson, proper? Not fairly.

There are just a few necessary issues to recollect. First, to ensure that NIL rights to use, the a part of her likeness that’s used should be identifiable as her. Not each superstar is legendary in the identical means. For instance, I couldn’t determine Sydney Sweeney by voice alone, and though Patrick Warburton has voiced a number of the most memorable characters in animation, I couldn’t choose his face out of a lineup. On this case, Johansson claims OpenAI copied her voice, which is much less intimately linked together with her identification than her face. Whether or not or not a mean particular person would hear the voice of OpenAI’s digital assistant, “Sky,” and assume, “That’s Scarlett Johansson!” just isn’t open-and-shut; it’s a query for a jury. 

Second, if something, the builders at OpenAI weren’t striving to evoke Johansson; they had been, extra particularly, making an attempt to copycat Samantha, Johansson’s character in “Her.” This may increasingly appear to be a distinction with no distinction, however legally, it is necessary. It might assist to consider what this is able to seem like in different contexts. For instance, if an NYPD patrol bot abruptly began barking orders in a simulation of Kevin Conroy’s dulcet baritone, it might not be an try to evoke Kevin Conroy; it might be an try to evoke Batman, the character he performed for a lot of the early 2000s. Meaning the related declare is probably not an NIL violation; it could be a copyright violation for creation of an unauthorized spinoff work. Sure, that’s proper; OpenAI might have created a (probably very costly) Spike Jonze fanfic. 

If this appears considerably foolish and convoluted, that’s as a result of it’s. AI is overhyped in lots of areas, however it’s remarkably efficient at discovering the stress factors in our authorized system. That’s not to say that there aren’t authorized options right here: Conventional NIL rights are nonetheless enforceable whether or not AI is concerned or not. 

However high-profile controversies like this – and the notion of their novelty and complexity – contribute to the mounting stress for federal laws to deal with AI-enabled impersonation. As I’ve beforehand identified, this can be a explicit concern for celebrities like Johansson, however there’s a lot to fret about for non-celebrities, too.

Placing a steadiness right here is difficult. There’s a lot that might go incorrect in passing legal guidelines that increase NIL rights to cowl each the industrial considerations of celebrities and dealing creatives, and in addition the dangers to private privateness and dignity which may be of larger concern for personal people. But when our lawmakers are going to step as much as empower individuals to deal with potential harms enabled by AI, it appears necessary to guarantee that these legal guidelines are working to guard everybody and never simply the individuals who make headlines.