With recent advancements in artificial intelligence, AI voice cloning is on the rise. It has become all too easy to impersonate a celebrity using an audio sample for the AI to learn the voice. Once that’s done, the AI-generated voice can say what you want it to say or sing whatever song you have it sing. This recently occurred when the voices of singers Drake and The Weeknd were used in an AI-generated video featuring a song called “Heart on My Sleeve” uploaded on TikTok. AI voice cloning is also a concern for radio celebrities whose voices might be used to endorse products or promote concerts. What can a person do to protect their own voice?
Under U.S. copyright law, voices cannot be protected. This is because voices are not “fixed” and copyright protection is only available for “original works of authorship fixed in any tangible medium of expression.”[1] Trademark law also does not protect voices, although sounds that identify goods or services can be registered as trademarks. One example is the “NBC chimes” registered in the Trademark Office (No. 0916522) for television broadcasting services. Celebrities that have well-known catchphrases can also try to register these as trademarks. For example, Michael Buffer registered several variations of his famous “Lets’ Get Ready to Rumble!” phrase (e.g., No. 2594218). Even so, this only protects the phrase, not the voice saying other things.
One useful right that can be applied is a state law based right of publicity. The right of publicity (recognized in many states, including New York and California)[2] is an economic right, specifically the right to control the commercial value of personal identifying traits, including a person’s name, likeness, signature, and voice. The idea of property in one’s own body was discussed by Margaret Jane Radin, a respected law professor at the University of Michigan Law School and known for her scholarly work on the basis and limits of property rights, who stated, “If it makes sense to say that one owns one’s own body, then, on the embodiment theory of personhood, the body is quintessentially personal property because it is literally constitutive of one’s personhood.”[3] Everyone enjoys this right to identity or “personhood,” but for a celebrity, the right of publicity may be an extremely valuable property right.
In a pivotal case on the right of publicity, acclaimed singer Bette Midler brought suit against Ford Motor Co. for the unauthorized use of her voice in a television commercial for automobiles.[4] In Midler v Ford, Bette Midler specifically refused an offer to use her voice in a Ford commercial, so they hired another singer to mimic Midler’s voice in an edited version of Midler’s song, “Do You Want to Dance”. The Court of Appeals for the Ninth Circuit explained that a person’s voice is “one of the most palpable ways identity is manifested” and held that in a claim for the appropriation of a person’s voice, to recover under California law the voice plaintiff must prove three elements: (1) a voice; (2) that is distinctive; and (3) that is widely known.[5] The case was remanded to the district court for trial, where the jury found in favor of Midler, and she was awarded $400,000 in damages for the market rate of her performance had she done the commercial.
Midler is important because it set valuable precedent for plaintiffs that the right of publicity may be infringed by appropriation of a voice. Additionally, the copyright preemption defense that proved to be fatal in previous sing-alike cases[6] was no longer an issue because the court determined that Midler’s rights were in her persona and not in her song (the advertiser had a license to use the song), thus the state publicity right claim did not clash with federal copyright law.
Another option is to treat voice misuse as misappropriation and false endorsement under the Lanham Act.[7] In Waits v. Frito Lay, Inc.,[8] Tom Waits, a well-known singer and songwriter, sued Frito Lay for voice misappropriation and false endorsement under the Lanham Act for airing a radio commercial with a sing-alike performance of a tune based on Waits’ song “Step Right Up.” Waits had always been outspoken about not doing commercials that detract from artistic integrity. Further, the advertising agency had approached Waits to do a commercial for a different product and they admitted that he was quick to decline the offer. The court held that to recover, Waits had to satisfy the deliberate voice misappropriation elements listed in the Midler case, which the court in Waits identified as the “Midler tort.” The court found that Frito Lay unlawfully appropriated Waits’ distinctive raspy voice and affirmed the jury award of $2,375,000 ($2 million in punitive damages for voice misappropriation and $375,000 in compensatory damages), and attorney fees under the Lanham Act.[9] This was the first time that punitive damages were awarded to a singer whose image was tarnished by a celebrity sound-alike.
These rights are not unfettered. Instead, a person’s rights of publicity are balanced against the First Amendment which protects the right to comment on or parody a person’s image. As a result, a celebrity does not have the right to control his voice or image by censoring offensive imitations. Think of Gilda Radner’s hilarious but unflattering impression of Barbara Waters’ voice and persona on SNL or Tina Fey’s 2008 parody of Sarah Palin on SNL (revived in 2018), nailing Palin’s look and distinctive accent, a blend of Alaska and Minnesota.
There is no precedent for AI voice cloning but based on the right of publicity cases applied to traditional celebrity impersonation, the use of a synthesized voice may violate the celebrity’s right of publicity by appropriation of likeness, name, and voice. As with conventional imitations, the circumstances and purposes of the use matter. For example, using the celebrity’s voice may be treated as a false endorsement where the AI-generated voice is used to endorse a product. There may be other intellectual property violations too, for example, copyright infringement if, for example, a singer’s song lyrics are copied or trademark infringement where a celebrity’s name or catchphrase is registered as a trademark.
If you believe your intellectual property rights have been violated, whether they are rights in your likeness and voice or other rights, such as trademark, copyright, or patent, the attorneys at Gottlieb, Rackman & Reisman, P.C. are here to help.
[1] 17 U.S.C. § 102(a)
[2] Currently, 25 states have some form of right of publicity statute. https://rightofpublicitystatues.com.
[3] Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 966 (1982).
[4] Midler v Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
[5] Id. at 463.
[6]See Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711, 716 (9th Cir. 1970).
[7] 15 U.S.C. § 1125(a) (1988).
[8] 978 F.2d 1093 (9th Cir. 1992).
[9] 15 U.S.C. § 1117 (1988).