Who Owns Voice And Image Artificial Intelligence Rights?

With the advent of the ability of artificial intelligence (“AI”) to alter an individual’s voice and image (whether in deepfakes or expressly fictional works), it is critical to determine who – if anyone – owns the right to do so, particularly when the voice or image is clearly identified with a fictional character from an existing film. This issue is highlighted by the recent license by James Earl Jones (the voice of Darth Vader) of his voice to an AI company. While articles state that the license of his voice was for use by Disney (the owner of the Star Wars franchise), the transaction raises the following questions: (a) could anyone use his voice without permission and (b) could James Earl Jones have licensed his voice to third parties for use in other films, particularly if used in the distinctive manner of Darth Vader?

This article will refer to the individual whose voice or image is at issue as the “Individual,” the licensee of AI rights as the “AI Licensee,” the new AI work incorporating the voice or image as the “AI Work,” and any prior work that the voice or image is taken from, or resembles elements of, as the “Prior Work.”

The right to a voice or image can generally be divided into two categories: (a) the right of publicity (under various guises, including right of privacy, trademark, deepfake laws, or unfair competition) and (b) copyright, to the extent voice or image for the AI Work is taken from, or resembles elements of, a Prior Work.

Let’s first deal with the right of publicity. For simplicity, this article does not discuss whether or not a particular court has the authority to hear a case (jurisdiction over the defendant), but just the choice of law that a court that does have such jurisdiction will apply. Critically, the majority of courts in the U.S. apply the law of the domicile of the Individual (or their domicile at the time of death), by treating the right of publicity as personal property (the “Domicile Rule”). For example, if the Individual is (or was at the time of death) domiciled in a jurisdiction that does not recognize the right of publicity, then anyone can exploit an AI Work using their voice or image in a jurisdiction that follows the Domicile Rule. However, some courts in the U.S. (and most courts outside the U.S.) apply the law of the jurisdiction where the AI Work is exploited (the “Exploitation Rule”), such as by targeting customers in the jurisdiction, while a passive website that is merely open to the public without pay will not trigger the laws of that jurisdiction. In either case, the location of the domicile or headquarters of the AI Licensee is irrelevant.

Once it is established what laws apply, the next question is whether those laws enforce the right of publicity. While most U.S. states recognize this right during the life of the Individual, some states limit protection to celebrities, some limit it to advertising, and many don’t recognize it all after the death of the Individual. In addition, many foreign countries don’t recognize the right at all (or it is impossible to enforce it as a practical matter).

If the relevant law does protect the right of publicity, the final question will be whether the Individual’s voice or image is recognizable in the AI Work, since a claim is only valid if that is the case. For example, the voice of James Earl Jones is instantly recognizable, even if most people don’t know him by name, and that will almost certainly remain the case in any AI Work that uses his voice.

It is reported that James Earl Jones lives in New York, a state that protects the right of publicity against a commercial use and permits that right to be inherited. Thus, the AI Licensee of his voice should have enforceable rights to use his voice even after his death, both in states that follow the Domicile Rule and in states that follow the Exploitation Rule, but not in jurisdictions that do not follow either rule (e.g., many countries outside the U.S.). In addition, New York (as well as California) do not provide protection after death of the Individual for an AI Work that is for entertainment, such as a movie, so anyone could use James Earl Jones voice in another movie without permission after his death in a jurisdiction that follows the Domicile Rule.

If the Individual has consented to the AI Work (or their consent is not required under the analysis above), the next issue to be considered is copyright, which is a two-fold inquiry: (a) whether the voice or image was taken from some Prior Work and (b) whether the AI Work resembles elements of a Prior Work.

If the voice or image of the Individual is initially copied from a Prior Work in order to be altered by AI, that copying alone is technically copyright infringement (even if the resulting AI Work does not resemble any elements of the Prior Work), although most courts would apply the fair use defense to permit the initial copying.

A separate issue is whether the AI Work resembles elements of a Prior Work, regardless of the source of the voice or image. For example, what if an AI Work is created by an AI Licensee other than Disney using the distinctive voice of James Earl Jones to create a new villain named Dark Hater that has the same voice as Darth Vader? While an Individual’s voice is generally not protected by copyright, if an AI Work uses a voice or image that the public associates with a particular fictitious character (live or animated) from a Prior Work, the owner of the Prior Work may have a valid claim for copyright infringement of that character, although a claim based solely on imitating the voice of a fictitious character is untested.

So murky waters indeed, and as always, the law will be forced to catch up with technology. This will be a fun one to watch.