Associated Incidents
OpenAI is sticking to its story that it never intended to copy Scarlett Johansson's voice when seeking an actor for ChatGPT's "Sky" voice mode.
The company provided The Washington Post with documents and recordings clearly meant to support OpenAI CEO Sam Altman's defense against Johansson's claims that Sky was made to sound "eerily similar" to her critically acclaimed voice acting performance in the sci-fi film Her.
Johansson has alleged that OpenAI hired a soundalike to steal her likeness and confirmed that she declined to provide the Sky voice. Experts have said that Johansson has a strong case should she decide to sue OpenAI for violating her right to publicity, which gives the actress exclusive rights to the commercial use of her likeness.
In OpenAI's defense, The Post reported that the company's voice casting call flier did not seek a "clone of actress Scarlett Johansson," and initial voice test recordings of the unnamed actress hired to voice Sky showed that her "natural voice sounds identical to the AI-generated Sky voice." Because of this, OpenAI has argued that "Sky's voice is not an imitation of Scarlett Johansson."
What's more, an agent for the unnamed Sky actress who was cast---both granted anonymity to protect her client's safety---confirmed to The Post that her client said she was never directed to imitate either Johansson or her character in Her. She simply used her own voice and got the gig.
The agent also provided a statement from her client that claimed that she had never been compared to Johansson before the backlash started.
This all "feels personal," the voice actress said, "being that it's just my natural voice and I've never been compared to her by the people who do know me closely."
However, OpenAI apparently reached out to Johansson after casting the Sky voice actress. During outreach last September and again this month, OpenAI seemed to want to substitute the Sky voice actress's voice with Johansson's voice---which is ironically what happened when Johansson got cast to replace the original actress hired to voice her character in Her.
Altman has clarified that timeline in a statement provided to Ars that emphasized that the company "never intended" Sky to sound like Johansson. Instead, OpenAI tried to snag Johansson to voice the part after realizing---seemingly just as Her director Spike Jonze did---that the voice could potentially resonate with more people if Johansson did it.
"We are sorry to Ms. Johansson that we didn't communicate better," Altman's statement said.
Johansson has not yet made any public indications that she intends to sue OpenAI over this supposed miscommunication. But if she did, legal experts told The Post and Reuters that her case would be strong because of legal precedent set in high-profile lawsuits raised by singers Bette Midler and Tom Waits blocking companies from misappropriating their voices.
Why Johansson could win if she sued OpenAI
In 1988, Bette Midler sued Ford Motor Company for hiring a soundalike to perform Midler's song "Do You Want to Dance?" in a commercial intended to appeal to "young yuppies" by referencing popular songs from their college days. Midler had declined to do the commercial and accused Ford of exploiting her voice to endorse its product without her consent.
This groundbreaking case proved that a distinctive voice like Midler's cannot be deliberately imitated to sell a product. It did not matter that the singer used in the commercial had used her natural singing voice, because "a number of people" told Midler that the performance "sounded exactly" like her.
Midler's case set a powerful precedent preventing companies from appropriating parts of performers' identities---essentially stopping anyone from stealing a well-known voice that otherwise could not be bought.
"A voice is as distinctive and personal as a face," the court ruled, concluding that "when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs."
Like in Midler's case, Johansson could argue that plenty of people think that the Sky voice sounds like her and that OpenAI's product might be more popular if it had a Her-like voice mode. Comics on popular late-night shows joked about the similarity, including Johansson's husband, Saturday Night Live comedian Colin Jost. And other people close to Johansson agreed that Sky sounded like her, Johansson has said.
Johansson's case differs from Midler's case seemingly primarily because of the casting timeline that OpenAI is working hard to defend.
OpenAI seems to think that because Johansson was offered the gig after the Sky voice actor was cast that she has no case to claim that they hired the other actor after she declined.
The timeline may not matter as much as OpenAI may think, though. In the 1990s, Tom Waits cited Midler's case when he won a $2.6 million lawsuit after Frito-Lay hired a Waits impersonator to perform a song that "echoed the rhyming word play" of a Waits song in a Doritos commercial. Waits won his suit even though Frito-Lay never attempted to hire the singer before casting the soundalike.
Waits argued that Frito-Lay executives knew that he never did commercials and specifically intended to hire "someone who did a good Tom Waits imitation" instead.
Frito-Lay did everything it could to defend against the lawsuit. This included arguing that "although they had consciously copied Tom Waits' style in creating the Doritos commercial, they had not deliberately imitated his voice."
The company also tried to claim that "Tom Waits is a singer known only to music insiders and to a small but loyal group of fans," suggesting that his voice was not well-known enough to support his claims.
Ultimately, the court rejected these arguments, saying Frito-Lay's logic would exclude too many popular singers who "fall short of superstardom" from defending their rights to personal property. The court ruled that the company "acted in conscious disregard" of Waits' personal property rights, infringing on "his right of publicity to control the use of his identity as embodied in his voice."
Perhaps most relevant to Johansson's case, the Waits court ruled that "to be liable for voice misappropriation," the imitation just "had to be so good that 'people who were familiar with plaintiff's voice who heard the commercial believed plaintiff performed it.'"
Experts consider ScarJo's case "strong"
Not only did Frito-Lays owe whatever it would have cost to hire Waits to do the gig, but it also owed Waits extra damages for disturbing his peace and harming his reputation.
"It is quite possible that the appropriation of the identity of a celebrity may induce humiliation, embarrassment, and mental distress," the Waits court found, noting that "the mere use of a celebrity's identity could cause embarrassment for which mental distress damages would be available."
In her statement, Johansson said that hearing the Sky voice disturbed her.
"When I heard the released demo, I was shocked, angered, and in disbelief that Mr. Altman would pursue a voice that sounded so eerily similar to mine that my closest friends and news outlets could not tell the difference," Johansson said. "Mr. Altman even insinuated that the similarity was intentional, tweeting a single word 'her'---a reference to the film in which I voiced a chat system, Samantha, who forms an intimate relationship with a human."
Mitch Glazier, the chief executive of the Recording Industry Association of America, and Mark Lemley, director of Stanford Program in Law, Science and Technology, both told Reuters that Johansson has a "pretty strong" case against OpenAI.
However, any lawsuit potentially filed by Johansson may not be as "clear-cut" as Midler's and Waits' cases, Lemley said, seemingly because the Sky voice mode doesn't imitate Johansson directly, for example, by quoting memorable lines from the movie Her. Midler's imitator was directly performing her song, and Waits' copycat was singing a song written to emulate a Waits song.
"In both of those cases, the soundalikes were performing songs that the singers had made famous, so people were likely to assume that the artists were the ones singing and had endorsed the products," Lemley noted.
Intellectual property lawyer Mark Humphrey told The Post that he agreed that the key question in Johansson's case is whether the Sky voice is "identifiable" as Johansson.
Humphrey suggested that Altman's most recent attempts to hire Johansson in May could hurt OpenAI's defense should the matter go to court. A post on X (formerly Twitter) from the CEO simply saying "her" when seemingly referring to ChatGPT's new voice modes could, as in Waits' case, suggest that's what OpenAI was going for with the Sky voice.
"It just begs the question: It's like, if you use a different person, there was no intent for it to sound like Scarlett Johansson. Why are you reaching out to her two days before?" Humphrey said. "That would have to be explained."
It seems unlikely that OpenAI will avoid any further backlash from the Sky voice casting. Johansson has already been "forced" to hire legal counsel, her statement said, which is why OpenAI decided to pause using the voice.
Feud already costing OpenAI
Even if Johansson doesn't sue OpenAI, industry executives told Reuters that some Hollywood bigwigs feel antagonized and are now more hesitant to make deals with OpenAI as a result of the company's "hubris" through the controversy.
This comes at a time when many studios are otherwise intrigued by the idea of using AI for things like digital effects but remain, after a long history of avoiding copyright conflicts, hesitant to connect with any company potentially viewed as stealing artists' work without consent, Reuters reported.
So, whether Johansson sues or not, OpenAI may continue being impacted by the scandal, potentially costing the AI company lucrative deals.
"This seemed to strike a real chord," one industry executive told Reuters. "It kind of puts a human face on it... There's a well-known tech company that did something to a person we know."
"It sure doesn't set up a respectful collaboration between content creators and tech giants," said another.
General counsel for the SAG-AFTRA performers union, Jeffrey Bennett, told Reuters that he hopes Johansson's feud with OpenAI motivates lawmakers to create "a federal right for voice and likeness similar to the federal protections for a copyright."
Until there is such a right, conventional voice actors must navigate what the Sky voice actress told The Post remains on shaky ground when working with AI companies. In the end, she seemed to defend her decision to voice Sky as embracing the future.
"[W]hile that was unknown and honestly kinda scary territory for me as a conventional voice-over actor, it is an inevitable step toward the wave of the future," she told The Post.