Giving a Voice to Publicity Rights
Sara Galloway & Meghna Satheesh
With the emergence of generative AI in entertainment media, the right of publicity in relation to actors’ likeness is becoming increasingly prevalent. Modifying voices using generative AI (“genAI”) has become a serious concern amongst voice actors, and it is important to examine whether voices are a part of identity protected by public use law.
In December 2023, SAG AFTRA, after being on strike since July 2023, successfully struck a deal for regulating genAI in productions, outlining a requirement of explicit consent from the actors. However, this victory was quickly marred by companies starting to utilize genAI for modification of voice acting in video games. Just one example is seen in the ongoing lawsuit Lehrman v. Lovo, Inc., where voice actors Paul Lehrman and Linnea Sage (“Voice Actors”) raise right of publicity concerns against the company Lovo generating unauthorized AI voice clones in in lieu of them physically recording. The Voice Actors argue that the AI replicas are “exact clones” and are therefore “recognizable as likeness of the complaining individual” under the New York Civil Rights Act. Lovo argues that “a clone or AI-generated voice imitating or simulating the sound of a voice in a sound recording is not protected.” This case raises the question of how an individual’s voice relates to their identity, therefore invoking the right of publicity within the realm of intellectual property.
Examining the doctrine of publicity rights from the case White v. Samsung Electronics America, Inc., can help resolve this dispute. In the aforementioned case, Vanna White sued Samsung for running an advertisement without her consent portraying a robot in an outfit and position mirroring White’s style while hosting the game show Wheel of Fortune. The Court of Appeals held Samsung appropriated White’s identity under California law, thus infringing on her publicity rights. The court emphasized, "If the celebrity's identity is commercially exploited, there has been an invasion of his right whether or not his name or likeness has been used." The court reasoned identity, like name or likeness, could lead to the circumvention of publicity rights through clever strategies to evoke an image without using distinct characteristics. Identity is expansive, and the court prefers a broad interpretation. This would go against the purpose of the right, which is to protect against unauthorized exploitation and preserve commercial value identity.
Publicity rights outline the types of representations of celebrities that are prohibited without consent for economic gain. The Voice Actors rely on the New York Civil Rights Law, which protects an individual’s identity, including voices. Common law outlines publicity rights, listing the following elements that must be present to bring a claim of infringement: celebrity, identity, and commercial exploitation.
In the present case, the Voice Actors maintain Lovo is misappropriating their identities through unauthorized use of their voices. Neither party contests the celebrity status of the Voice Actors. They are well known and sought after for their distinctive voices and dynamic performances. However, the parties disagree on whether voice recordings can qualify as identity. The Voice Actors claim Lovo voice recordings are “exact clones” of their voices. Meanwhile, Lovo argues it uses voice recordings to create an AI generated product, which is distinguishable from actual voices. In this instance, the Voice Actors are correct in the characterization of identity as encompassing voice recordings. The court in White defined identity broadly, focusing on the existence of exploitation rather than the methodology. Identity extends to genAI clones of voices that accurately capture voice actors’ distinctive qualities. Finally, there has been commercial exploitation. Using genAI voice models, Lovo can circumvent voice actors while profiting from their labor. Conclusively, voice actors are celebrities, clones of their voice recordings are a part of their identity, and Lovo wants to commercially exploit them by eliminating future employment opportunities; thus, all elements of the public rights doctrine are satisfied.
Ultimately, the court should hold that Lovo infringed on the Voice Actors’ publicity rights by using their likeness to create genAI clones of their voices. According to Locke’s theory of labor, an individual has the right to their body and their labor. When it comes to voice acting, a person’s voice is the product of their labor, and they should be able to control how it is used. At the same time, the model used is owned by the company, and Lovo can argue that the generated clones are the fruits of their labor. However, when considering the personhood theory, the scales weigh against Lovo. A person's voice is inextricably linked to their identity. A voice may not take up physical space, but it is still tangible.
AI is an inevitable feature of modern-day technology, and for constantly evolving industries like video games and film, one must evolve alongside it. That being said, human input is still vital to artistic media. The most practical outcome for the Voice Actors is to design a rigid contract similar to the SAG AFTRA workers. Ideally, the agreement would ensure that they are not pushed out of their own profession and grant them autonomy over how their voices are trained using genAI.
Sara Galloway is a law student at American University Washington College of Law.
Meghna Satheesh is a law student at American University Washington College of Law.
Image: Cliff, RCAStudioB vocal booth.
