copyright
Do movie studios need permission to use an AI-recreation of an actor&#39;s voice in their works?
<p>It is mentioned in <a href="https://scifi.stackexchange.com/questions/268046/is-james-earl-jones-the-actor-who-has-played-the-same-sci-fi-character-for-the-l">this question</a> that James Earl Jones, the voice of Darth Vader, has given permission to Disney to use an AI trained on his previous performances to recreate his voice for use in future Star Wars productions.</p>
<p>If Jones had explicitly disallowed this, or if he remained silent on the issue, could Disney (who I assume holds all rights to the character 'Darth Vader') proceed anyways?</p>

<p>Under <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&amp;sectionNum=3344" rel="noreferrer">Cal. Civ. 3344</a>,</p>
<blockquote>
<p>Any person who knowingly uses another’s name, <strong>voice</strong>, 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.</p>
</blockquote>
<p>So Disney can own the character but JEJ owns the right to his voice. <a href="https://rightofpublicityroadmap.com/state_page/california/" rel="noreferrer">Here</a> is a more general overview of California right-of-personality law.</p>

<p>Rights of personality and publicity are primarily controlled by state law, namely the state in which the allegedly infringed person is domiciled.  In JEJ's case this would be New York.  Until recently, New York actually had fairly poor coverage of these rights, especially post mortem.  Marilyn Monroe had made her official domicile in New York for tax purposes, but this meant her estate could not inherit her right of publicity upon her death. Her estate uses trademark protections to maintain control of her image in a similar fashion, instead.</p>
<p>I mentioned in comments on another answer the case <a href="https://openjurist.org/849/f2d/460" rel="nofollow noreferrer">Midler v. Ford Motor Company</a>. Midler was domiciled in California, so some of the (final) legal analysis was done based on California law, but the suit was in federal courts and ultimately relied on more general and federal principles at many points (what does the 1st amendment say? What does federal copyright law say?), so it is worth pointing out some of these things.  This will highlight the complex considerations that go into determining if the use of an impersonator, or trained AI, is an infringing act or not.</p>
<p>Midler had sung vocals on a song whose copyright was owned by another entity.  Ford wanted to use that song, to inspire nostalgia, in one of its commercials.  They were granted permission by the copyright holder to do so.  Midler, however, rejected the offer to sing for the commercial.  Ford instead hired one of her old backup singers, after an audition requirement to sing the song as much like Midler did as possible, and instructed her during recording to sing as much like Midler as possible.  Many people were evidently fooled into believing it was actually Midler. Neither her name nor picture were included anywhere in the commercials. Midler sued, and initially the defendants were granted summary judgment, under the holding that there was no legal principle protecting against the use of an impersonator.  The court also called them common thieves, for what it's worth, but they said there was no basis on which they could be held liable.</p>
<p>The above link is to the apellate court's decision.</p>
<p>As concerns 1st amendment issues, the starting point of all of their analysis, the court said:</p>
<blockquote>
<p>The purpose of the media's use of a person's identity is central. If the purpose is &quot;informative or cultural&quot; the use is immune; &quot;if it serves no such function but merely exploits the individual portrayed, immunity will not be granted.&quot; Felcher and Rubin, &quot;Privacy, Publicity and the Portrayal of Real People by the Media,&quot; 88 Yale L.J. 1577, 1596 (1979). Moreover, federal copyright law preempts much of the area. &quot;Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another's performance as exactly as possible.&quot; Notes of Committee on the Judiciary, 17 U.S.C.A. Sec. 114(b).</p>
</blockquote>
<p>They noted some similar cases.</p>
<p>Nancy Sinatra sued, seeking monetary damages, over a commercial that imitated her rendition of a song, claiming infringement through unfair competition, based on a California legal provision about creating a &quot;second meaning&quot;.  The courts held that to grant her damages would conflict with federal copyright law, and summary judgment against her was granted and affirmed on appeal.</p>
<p>But this is not the legal theory Midler advanced.  She was not seeking monetary damages, nor did she claim an infringement based on creating a second meaning.  The court says:</p>
<blockquote>
<p>Copyright protects &quot;original works of authorship fixed in any tangible medium of expression.&quot; 17 U.S.C. Sec. 102(a). A voice is not copyrightable. The sounds are not &quot;fixed.&quot; What is put forward as protectible here is more personal than any work of authorship.</p>
</blockquote>
<p>What they mean by the last bit is that Midler's claim is that defendants had infringed upon her very professional identity, by going out of their way to implicitly associate her with the product.</p>
<p>So the court moves on to another similar case, Lahr v. Adell Chemical Co.  Lahr did lots of commercial voice work, and Adell Chemical Co. used an impersonator of Lahr in one of their commercials.  The First Circuit ruled in Lahr's favor under the argument that Adell Chemical Co. had created unfair competition and saturated the market (people could just use his, presumably cheaper, impersonator instead of him).  But this was held not to apply to Midler's case, as Midler did not do commercials, and so an impersonator in commercials did not create any competition to her.</p>
<p>The court also held that California Civ. Code 3344, quoted in user6726's answer, was also of no avail to Midler.  This is because the defendants did not use Midler's &quot;name, voice, signature, photograph, or likeness&quot;, where likeness is legally interpreted as meaning their appearance alone, and so not their voice.  They used the impersonator's voice, who just so happened to sound very much like her.  The court also held that the law did not preclude Miller's cause of action, as the law states it is only expanding on common law protections, and so in particular does not deny that such protections exist and can be enforced. In particular such rights are held to be property rights, and their appropriation a tort in California.</p>
<p>So the court moves on to Motschenbacher v. R.J. Reynolds Tobacco Co.  In this case Reynolds used altered images of Motschenbacher in his race car.  A driver could be seen, but Motschenbacher himself was not clearly distinguishable as being said driver. It was simply established as fact that he was in fact the visible driver when the original image was taken.  While the image had been given some small alterations by Reynolds, most of the vehicle's appearance was left as-is, and many people evidently had no problems quickly identifying it as Motschenbacher's car, and implicitly assumed he was endorsing the product.  The courts ruled for Motschenbacher, holding that Reynolds had infringed upon his proprietary interest in his own identity.</p>
<p>This case is also distinguishable from Midler's, because Motschenbacher and his car were both used in the image, whereas nothing about Midler was used by Ford.  The court said:</p>
<blockquote>
<p>But, as Judge Koelsch expressed it in Motschenbacher, California will recognize an injury from &quot;an appropriation of the attributes of one's identity.&quot; Id. at 824. It was irrelevant that Motschenbacher could not be identified in the ad. The ad suggested that it was he. The ad did so by emphasizing signs or symbols associated with him. In the same way the defendants here used an imitation to convey the impression that Midler was singing for them.</p>
</blockquote>
<p>And this became the basis by which the apellate court reversed the original decision, and held &quot;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.&quot;  They cautioned:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>The cases of James Earl Jones as Darth Vader's voice would seem, to me, to afford similarly productive comparisons to these cases.  What's more, actually training an AI on his voice is unequivocally using <em>his</em> voice, rather than that of an impersonator, which may make this case closer to Lahr v. Adell Chemical Co. (it's direct competition in areas in which he performs services) and Motschenbacher (they're using his voice, not someone else's).  Motschenbacher's car may even be analogous to Darth Vader's well-known physical appearances; while James Earl Jones does not control copyright of that image (I'm not sure Motschenbacher owned his car, either; that's certainly not an uncommon state of affairs for modern drivers, at least), he is strongly associated with it, and using an imitator or AI reworking of his voice in conjunction with the image of Darth Vader would create a strong impression that James Earl Jones is in fact involved.  James Earl Jones also strikes me as being at least as famous and iconic for his voice (both as Darth Vader and otherwise) as Midler was in her singing, so that the court's caveat about what it doesn't cover would seem to suggest the analysis would fall the same way for him as it did for her.</p>
<p>The big caveat here being that, as far as I can tell, Midler's case and some of the analyzed cases were governed by California state law, whereas James Earl Jones would have any potential cases covered by New York state law.  While I believe they are similar at present, I do not know for certain what New York state law is on the matter.</p>
<p>But in any case, I think this demonstrates a clear potential for legal peril of using impersonators or trained AI's to replicate and replace his voice without consent.  Obtaining that consent will nicely head off any potential issues with James Earl Jones while he is still alive, and by his estate upon his passing.  Even if Disney's legal team felt they could win under New York state law and federal law, there's good reason for them to have not risked it.</p>
