The Volokh Conspiracy
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Begun the Clone War Has, Here as to Cloning of Voice-Over Actors' Voices
From today's decision by Judge Paul Oetken in Lehrman v. Lovo, Inc. (S.D.N.Y.):
[Voice-over actors] Paul Lehrman and Linnea Sage bring this putative class action against .. Lovo, Inc. … alleging that Lovo used artificial intelligence … to synthesize and sell unauthorized "clones" of their voices….
Ultimately the Court concludes that, for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law…. [But] claims for misappropriation of a voice, like the ones here, may be properly asserted under Sections 50 and 51 of the New York Civil Rights Law [New York's right of publicity statute], which, unlike copyright and trademark law, are tailored to balance the unique interests at stake. Plaintiffs also adequately state claims under state consumer protection law and for ordinary breach of contract….
After hearing what appeared to be Lehrman's voice on Deadline Strike Talk, Plaintiffs sought to learn more about Lovo. Lehrman found that Lovo "had been marketing [the clone of his voice] as part of its subscription service under the stage name 'Kyle Snow,'" and that it was this "Kyle Snow" voice that he had heard on the podcast…. Sage discovered that Lovo had created a clone of her voice named "Sally Coleman" that was available to Lovo's subscribers. Lovo also marketed its product using "side-by-side" comparisons of Sage's original audio recordings … and the "cloned version of her voice." …
According to Plaintiffs, the Kyle Snow and Sally Coleman voices are not synthetic creations, composites, or amalgams, built from a multiplicity of input voices, but direct copies of their specific voices. In support, Plaintiffs point to public statements Lovo and its executives have made describing Lovo's software. In such statements, Lovo has claimed that its product "reproduce[s]" actors' voices in a way that is "practically indistinguishable from the 'real' voice….
The opinion is over 20,000 words long, so I won't try to summarize it here, but here's an excerpt from the right of publicity discussion:
While "[t]he statute does not define trade or advertising purposes," New York courts give those terms their ordinary meanings. "Advertising purposes has been defined as use in, or as part of, an advertisement or solicitation for patronage of a particular product or service, and trade purposes involves use which would draw trade to the firm." That said, the statute was drafted so as not to conflict with the First Amendment, and therefore does not reach newsworthy uses or matters of public interest.
Here, Plaintiffs adequately allege use in both advertising and trade, and Lovo does not raise a First Amendment, newsworthiness, or public interest defense. Whether or not the solicitation of investors itself counts as an "advertisement," the function of the "investor presentation, which was later posted publicly online, is plausibly understood as promoting Lovo's underlying product. The same goes for the use of Lehrman's voice in tutorials and promotional articles posted online.
Moreover, even if the voices were not used in formal advertisements or solicitations, they were clearly used for commercial purposes, and to draw trade to the firm. It is plausible to infer that, by illustrating the value of the product and helping show prospective customers how to use it, Lovo used its publicly posted tutorials to increase the appeal of its software, acquire subscribers, and retain subscribers it already had. Plaintiffs allege even that Lehrman's cloned voice was Lovo's default product and one of its self-described "best" voices….
