February 27, 2024

Saluti Law Medi

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Artificial Intelligence Law – Intellectual Property Protection for your voice? | Vondran Legal

This blog is written by Steve Vondran, Esq. IP & Technology lawyer handling copyright, California right of publicity, and false endorsement claims. You can find our website at VondranLegal.com

Introduction

With the advent of AI technology capable of replicating a person’s voice and utilizing it for commercial purposes, several key legal issues are likely to emerge under California’s right of publicity law. The right of publicity refers to an individual’s right to control and profit from their own name, image, likeness, or voice.

Determining the extent of a person’s control over their own voice will likely become a contentious legal matter given the rise of AI technology. In 2024, with a mere prompt and a push of a button, a creator can generate highly accurate voice replicas, potentially allowing companies to utilize a person’s voice without their explicit permission for example using a AI generated song in a video, or podcast, or using it as a voice-over for a commercial project. This sounds like fun new technology, until you realize that in states like California where a “right of publicity law” exists a persons VOICE can be a protectable asset that one can sue to protect others who wrongfully misuse their voice for commercial advertising purposes.

This blog will discuss a few new legal issues I see arising in our wonderful new digital age being fueled by the massive onset of Generative AI technology (which really just means you input prompts into an AI tool and it will generate art, text, images, music, etc.

Can you copyright your voice?

In the United States, it is important to note that while copyright law protects original works of authorship, including literary, musical, and dramatic works, it does not extend to the copyright of one’s voice itself. Copyright law protects “original works of authorship” however. So, if you SING A SONG, the song can be protected by copyright laws. If you create a podcast using your voice, the podcast can be protected from unlawful copying or distribution. These types of creative works SHOULD be copyrighted for full protection, and to provide you with a right to sue if someone is unlawfully copying your song, or podcast, for example. If you create a jingle that can be copyrighted.

Another example is that you might be able to copyright a speech, if it is written down into a tangible format (such as a written document, or in the form of a podcast episode). Copyright law requires “fixation” of the creative work. Speeches in tangible form may qualify as a “literary work” under the U.S. Copyright Laws:

Under 17 U.S.C. 101:

“Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.

According to the United States Copyright Compendium

“Most works are fixed by their very nature, such as an article printed on paper, a song recorded in a digital audio file, a sculpture rendered in bronze, a screenplay saved in a data file, or an audiovisual work captured on film. Nevertheless, some works of authorship may not satisfy the fixation requirement, such as an improvisational speech, sketch, dance, or other performance that is not recorded in a tangible medium of expression,”

These types of speeches generated by the human voice, cannot be copyrighted. AI generated voices, likewise, cannot currently be copyrighted.

Can you Trademark your voice?

Trademarks are used to identify goods or services (for example, you see a shoe with a SWOOSH on it, you know that is NIKE’S shoe), unless it is a counterfeit of course. So, can you trademark your voice if it clearly identifies your products or services? There are no examples I could find of merely trademarking one’s voice. However, where you have a voice that creates a recognizable slogan tied to a service (ex. boxing promotion), there is a chance to achieve trademark registration.

For example, famous boxing and wrestling announcer Michael Buffer registered several variations of his famous voice used in conjunction with his catchphrase: “Lets’ Get Ready to Rumble!” phrase.

Keep in mind, the trademark protects only the phrase, not his actual voice. Reportedly, he found that people were copying this all over the place so his IP attorneys told him to register the name, and so he did, reportedly earning HUNDREDS OF MILLIONS OF DOLLARS from exploiting his trademark, a truly incredible IP success story!

Right of Publicity Law in California can protect a Voice from misappropriation

Probably the best avenue to protect a person’s voice from wrongful use is through “Right of Publicity” laws, which vary state to state. California and New York (entertainment capitals of the world) have robust NIL (name, image and likeness laws). California has both a statutory right of publicity and a common law right. The statutory right is found at Cal Civil Code Section 3344 which notes:

(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

(b) As used in this section, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable.

(1) A person shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.

(2) If the photograph includes more than one person so identifiable, then the person or persons complaining of the use shall be represented as individuals rather than solely as members of a definable group represented in the photograph. A definable group includes, but is not limited to, the following examples: a crowd at any sporting event, a crowd in any street or public building, the audience at any theatrical or stage production, a glee club, or a baseball team.

(3) A person or persons shall be considered to be represented as members of a definable group if they are represented in the photograph solely as a result of being present at the time the photograph was taken and have not been singled out as individuals in any manner.

(c) Where a photograph or likeness of an employee of the person using the photograph or likeness appearing in the advertisement or other publication prepared by or in behalf of the user is only incidental, and not essential, to the purpose of the publication in which it appears, there shall arise a rebuttable presumption affecting the burden of producing evidence that the failure to obtain the consent of the employee was not a knowing use of the employee’s photograph or likeness.

(d) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).

(e) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).

(f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person’s name, voice, signature, photograph, or likeness as prohibited by this section.

(g) The remedies provided for in this section are cumulative and shall be in addition to any others provided for by law.

The landmark case in this area is the Bette Midler case. The court in this case applied California’s “common law” right of publicity which is treated as a tort. In denying a motion for summary judgment by the Defendant, the Court held:

Why did the defendants ask Midler to sing if her voice was not of value to them? Why did they studiously acquire the services of a sound-alike and instruct her to imitate Midler if Midler’s voice was not of value to them? What they sought was an attribute of Midler’s identity. Its value was what the market would have paid for Midler to have sung the commercial in person.

A voice is more distinctive and more personal than the automobile accouterments protected in Motschenbacher. A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. We are all aware that a friend is at once known by a few words on the phone. At a philosophical level it has been observed that with the sound of a voice, “the other stands before me.” D. Ihde, Listening and Voice 77 (1976). A fortiori, these observations hold true of singing, especially singing by a singer of renown. The singer manifests herself in the song. To impersonate her voice is to pirate her identity. See W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser Keeton on Torts 852 (5th ed. 1984).

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.

See Midler v. Ford Motor Co., 849 F.2d 460, 463-64 (9th Cir. 1988)

RESOURCE: Approximately 25 states have a right of publicity statute.

False Designation of Origin as a means to protect a distinctive voice

Another key case in this area is the Tom Waits case. Defendants Frito-Lay, Inc., and Tracy-Locke, Inc., appeal a jury verdict and award of $2.6 million in compensatory damages, punitive damages, and attorney’s fees, in favor of singer Tom Waits. Waits sued the snack food manufacturer and its advertising agency for voice misappropriation and false endorsement following the broadcast of a radio commercial for SalsaRio Doritos which featured a vocal performance imitating Waits’ raspy singing voice. On appeal, the defendants mount attacks on nearly all aspects of the judgment. See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1096 (9th Cir. 1992)

A. False Endorsement

At the time of the broadcast of the Doritos commercial, section 43(a) provided in pertinent part:

Any person who shall affix, apply, or annex, or use in connection with any goods or services . . . a false designation of origin, or any false designation or representation . . . shall be liable to a civil action . . . by any person who believes that he is or is likely to be damaged by the use of any such false designation or representation.

15 U.S.C. § 1125 note (Amendments) (1988). Courts in other jurisdictions have interpreted this language as authorizing claims for false endorsement. E.g., Better Business Bureau v. Medical Directors, Inc., 681 F.2d 397 (5th Cir. 1982); Jackson v. MPI Home Video, 694 F. Supp. 483 (N.D.Ill. 1988); Wildlife Internationale, Inc. v. Clements, 591 F. Supp. 1542 (S.D.Oh. 1984); Geisel v. Poynter Prods., Inc., 283 F. Supp. 261, 267 (S.D.N.Y. 1968).

Moreover, courts have recognized false endorsement claims brought by plaintiffs, including celebrities, for the unauthorized imitation of their distinctive attributes, where those attributes amount to an unregistered commercial “trademark.” See Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir. 1979) (recognizing claim under § 43(a) because uniform worn by star of X-rated movie was confusingly similar to plaintiffs’ trademark uniforms, falsely creating impression that plaintiffs “sponsored or otherwise approved the use” of the uniform); Allen v. Men’s World Outlet, Inc., 679 F. Supp. 360, 368 (S.D.N.Y. 1988) (celebrity states a claim under § 43(a) by showing that advertisement featuring photograph of a look-alike falsely represented that advertised products were associated with him); Allen v. National Video, Inc., 610 F. Supp. 612, 625-26 (S.D.N.Y. 1985) (recognizing celebrity’s false endorsement claim under § 43(a) because celebrity has commercial investment in name and face tantamount to interests of a trademark holder in distinctive mark); see also Lahr v. Adell Chemical Co., 300 F.2d 256, 258 (1st Cir. 1962) (imitation of unique voice actionable as common law unfair competition); cf. Sinatra v. Goodyear Tire Rubber Co., 435 F.2d 711, 716 (9th Cir. 1970) (rejecting common law unfair competition claim because plaintiff’s voice not sufficiently unique to be protectable), cert. denied, 402 U.S. 906, 91 S.Ct. 1376, 28 L.Ed.2d 646 (1971).

The persuasiveness of this case law as to the cognizability of Waits’ Lanham Act claim is reinforced by the 1988 Lanham Act amendments. See Trademark Law Revision Act of 1988, Pub.L. 100-667, § 132, 102 Stat. 3935, 3946. The legislative history states that the amendments to section 43(a) codify previous judicial interpretation given this provision. S.Rep. No. 515, 100th Cong., 2d Sess., at 40, reprinted in 1988 U.S.C.C.A.N. 5577, 5603.

Although these amendments did not take effect until November 1989, approximately a year after the broadcast of the defendants’ Doritos commercial, as a codification of prior case law and in the absence of controlling precedent to the contrary, they properly inform our interpretation of the previous version of section 43(a). Specifically, we read the amended language to codify case law interpreting section 43(a) to encompass false endorsement claims. Section 43(a) now expressly prohibits, inter alia, the use of any symbol or device which is likely to deceive consumers as to the association, sponsorship, or approval of goods or services by another person.

Moreover, the legislative history of the 1988 amendments also makes clear that in retaining the statute’s original terms “symbol or device” in the definition of “trademark,”

Congress approved the broad judicial interpretation of these terms to include distinctive sounds and physical appearance. See S.Rep. No. 101-515 at 44, 1988 U.S.C.C.A.N. at 5607.

In light of persuasive judicial authority and the subsequent congressional approval of that authority, we conclude that false endorsement claims, including those premised on the unauthorized imitation of an entertainer’s distinctive voice, are cognizable under section 43(a).

The challenge with AI-generated VOICE deepfakes

AI voice cloning is on the rise given all of the new AI applications coming out that allows you to sing like a certain celebrity for example, or generate a sound clip to use in one of your videos.

This area of law lacks legal precedent, but the application of right of publicity cases to traditional celebrity impersonation cases suggests that the use of a synthesized (fake sound-alike) voice could potentially infringe upon the celebrity’s right of publicity through the appropriation of their voice or likeness. A case in point might be the use of an AI-generated celebrity voice to endorse a product, which could be considered a misleading endorsement and a false designation of origin under the Federal Lanham Act. Additional infringements of intellectual property may occur, such as copyright infringement, involving the unauthorized copy of a singer’s song lyrics or trademark infringement involving the registration of a celebrity’s stage name or business slogan as a trademark.

As the foregoing points show, there are ways to protect individuals and companies from using your voice for commercial purposes without your consent or permission.

The challenge with AI-generated VOICE deepfakes

AI voice cloning is on the rise given all of the new AI applications coming out that allows you to sing like a certain celebrity for example or generate a sound clip to use in one of your videos.

This area of law lacks legal precedent, but the application of right of publicity cases to traditional celebrity impersonation cases suggests that the use of a synthesized (fake sound-alike) voice could potentially infringe upon the celebrity’s right of publicity through the appropriation of their voice or likeness. A case in point might be the use of an AI-generated celebrity voice to endorse a product, which could be considered a misleading endorsement and a false designation of origin under the Federal Lanham Act. Additional infringements of intellectual property may occur, such as copyright infringement, involving the unauthorized copy of a singer’s song lyrics or trademark infringement involving the registration of a celebrity’s stage name or business slogan as a trademark.

As the foregoing points show, there are ways to protect individuals and companies from using your voice for commercial purposes without your consent or permission.

The emergence of AI technology capable of replicating and utilizing a person’s voice for commercial purposes under California’s right of publicity law brings forth legal issues related to voice control, consent, licensing, false endorsements, fair compensation, and jurisdictional enforcement. As such, these legal concerns pose profound challenges that will require careful consideration and potential legislative updates to protect individuals’ rights in the digital age.