The Ariel Problem: I Lost My Voice And I Want It Back

Some may recall thenews of May 2024that actress Scarlett Johansson was embroiled in a legal dispute with OpenAI because the company released a voice for its ChatGPT assistant, "Sky," which sounded strangely similar to her own. Ms. Johansson had previously declined an offer to voice the AI, and this alleged mimicry was done without her permission. OpenAI has since removed the "Sky" voice and paused its release, while the issues remain in dispute.

Actors in the "Distinctive Voice Club" include Patrick Stewart, James Earl Jones, Morgan Freeman, and Phil Hartman—you know these voices when you hear them. Personality rights, inclusive of rights to the reproduction of one's own distinctive voice, are protected in Ontario and can survive beyond the lifetime of the original holder.

Further questions arise, however, as to the duration of the survivability of such rights, as well as the threshold level of "celebrity" sufficient to make out a claim. In other words, do your personality rights survive indefinitely and is your own personality sufficiently distinctive to be protected?

Interestingly, Ms. Johansson's is not the first high-profile case involving mimicry of a celebrity's voice. Bette Midler and Tom Waits, in particular, are no strangers to such alleged infringements.

Midler v Ford Motor Co.,849 F.2d 460 (9th Cir 1988)

In 1988,Bette Midler successfully sued the Ford Motor Company, for imitating the "voice of a celebrated chanteuse" for commercial gain and without her consent. The Court found as follows:

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"We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only 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 and have committed a tort in California. Midler has made a showing, sufficient to defeat summary judgment, that the defendants here for their own profit in selling their product did appropriate part of her identity."

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The Court was careful to limit the scope of its judgment, both geographically and circumstantially. However, this case highlights the reasonableness of Ms. Johansson's allegations, especially in California.

Waits v Frito-Lay, Inc., No 90-55981 (9th Cir 1992)

Similarly to Bette Midler, and only a few years later,Tom Waits brought his own successful claim, this time as against Frito-Lay, Inc. Unsurprisingly, theMidlercase was cited in theWaitscase and was favourably adopted.

In rendering judgment, Circuit Judge Boochever also took the opportunity to adopt a fan's description of Waits' voice: "like how you'd sound if you drank a quart of bourbon, smoked a pack of cigarettes and swallowed a pack of razor blades. . . . Late at night. After not sleeping for three days." In this vein, Waits' voice was found to be sufficiently distinctive and widely known.

Critically, many witnesses cited a belief that it was Tom Waits himself singing in the impugned commercial. As such, the Court had no trouble finding there was sufficient evidence "to support the jury's finding that consumers were likely to be misled by the commercial into believing that Waits endorsed SalsaRio Doritos."

TheWaitscase further bolsters Ms. Johansson's own claim, subject to the added nuance of the digital age.

Misappropriation of Personality

The cases cited above concern what are known as "personality rights", or sometimes "rights of publicity." The infringement of such rights, through the use of one's name, likeness, or voice, generally without permission, falls under the tort of "misappropriation of personality."

WhileBritish Columbia,Manitoba,Newfoundland and Labrador, andSaskatchewaneach have statutory frameworks for the protection of such rights, and theCivil Code of Quebecsimilarly addresses them, Ontario strictly relies on the common law to address claims of misappropriation of personality.

The tort in question was first recognized in the Canadian common law by a trio of cases:Krouse v Chrysler Canada Ltd. et al, [1974] 1 OR (2d) 225 (ON CA),Athans v Canadian Adventure Camps Ltd. et al, [1977] 17 OR (2d) 425 (ON SC), andJoseph v Daniels, [1986] 4 BCLR (2d) 239 (BC SC).

More recently, in Ontario, the tort was afforded extensive analysis in the case ofGould Estate v Stoddart Publishing Co., [1996] 30 OR (3d) 520 (ON SC). Here, a distinction was drawn at common law between the right of privacy – a personal tort concerning one's dignity and peace of mind – and the right of publicity, which "protects the commercial value of a person's celebrity status," being "akin to copyright or patent." Moreover, Justice Lederman found in his judgment that the right of publicity can be left to one's heirs pursuant tosection 2of theSuccession Law Reform Act, RSO 1990, c S-26.

InHategan v Farber, 2021 ONSC 874, the elements of the tort are helpfully summarized, as follows:

1. use of another's personality;
2. without consent;
3. for commercial gain.

The concept of celebrity, as suggested inGould Estate, should be understood as being relevant to the first element above. This concept is reinforced by Justice Diamond at paragraph 343 ofKonstan v Berkovits, 2023 ONSC 497 (CanLII): "[...] the tort ofmisappropriation of personalityis restricted to situations where a defendant wrongfully uses a plaintiff's 'celebrity status' in the advertising or promotion of the defendant's business, service or product."

Key Takeaways

Whether Ms. Johansson's case imparts any lessons for our own jurisprudence remains to be seen, but digital mimicry of the personality of another undoubtedly adds another layer to the analysis: can data be manipulated to fall short of crossing the infringement line?

Meanwhile,Denmark has been much heraldedfor its own proactive approach in legislating around the issue of deepfakes.Arielwould be proud.

This blog merely serves as an overview of the topic. Those with personality rights to consider as part of their estate plan or an existing estate administration should engage the services of a skilled estate lawyer, to ensure their interests are properly considered and preserved.

Also, see my earlier blog,"Ongoing Income Streams After Death: How to Address Royalties in Estate Planning and Administration."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.