In September the world lost a voice-acting giant with the passing of James Earl Jones. Jones' regal and booming voice perfectly portrayed both villains, like Star Wars' Darth Vader, and kings, such as The Lion King's Mufasa. Although Jones will undoubtedly be missed by fans, he may continue to provide those fans with more voice performances. Thanks to forward-thinking publicity rights agreements and the continued improvement of artificial intelligence and other technologies, Jones posthumously may go on lending his voice to numerous future works for many years to come.
In 2022, Jones was introduced to the Ukrainian start-up company, Respeecher, which was making breakthroughs in synthetic speech technology. Much like the GPT programs the world is increasingly using, Respeecher uses preexisting audio recordings to "train" an artificial intelligence program to replicate a certain person's voice. As Vanity Fair reported it, Jones was so impressed by the technology – and was interested in winding down his work – that he readily agreed to allow Respeecher to use archival voice recordings to recreate his voice for new performances.
Synthetic speech technology is being increasingly deployed. A 2023 FAQ on artificial intelligence from the Screen Actors Guild warns actors that a producer can refuse to hire an actor if the actor does not consent to the creation of a digital replica. A new subindustry is emerging wherein a voice actor no longer needs to go into the studio for each performance. Take TV commercials as an example. An actor can simply enter into an agreement allowing artificial intelligence to replicate their voice. But companies who replicate famous voices without permission can create a public relations nightmare, if not a legal one. OpenAI recently released a voice for its ChatGPT product, called Sky, and it reportedly sounded quite like the voice of actress Scarlett Johannson. But Johannson had not been consulted. The backlash prompted OpenAI to pull the voice altogether. Actors must be increasingly vigilant.
Contrary to what one might think AI-generated voice reproduction is not a copyright issue. A copyright only protects the expression of an idea. The sound of one's voice by itself is not an expression of an idea. It is a device used to express ideas. A song, however, can be copyrighted because it's an expression of an idea that uses someone's voice. So, copyright law does not operate against illegal voice mimicry. Nevertheless, people do have a "right to publicity" that comes into play for AI-generated voice products. The right of publicity is usually controlled by state law and is therefore slightly different depending on one's geographic location. Generally, it protects a person's right to the commercial use of their identity. Whether it's a person's name, image, or likeness – or even the distinct sound of their voice – those elements can be protected from misappropriation. And like other forms of intellectual property, the right of publicity can be the subject of license agreements, permitting others to profit off certain aspects of a person's identity.
Like anything else, publicity right license agreements are disputable, especially if they were entered decades before anyone conceived of voice replication technology. In 2016, Disney recreated the likeness of the late actor Peter Cushing, who died in 1994. With a little movie magic, Cushing reprised his role from 1977's Star Wars in 2016's Rogue One. The actor, who would have been 103 years old at the time of filming, looked like his 1977 self. Disney reportedly believed it had the rights to recreate Cushing based on the contract he signed in the 70's. But film producer Kevin Francis sued in the U.K., claiming that he entered into a different agreement with Cushing in 1993 that gave him the right to approve the use of Cushing's image. Francis recently defeated a motion to dismiss the lawsuit filed by Disney, allowing the case to proceed on the merits.
When one's livelihood depends on a distinctive part of their identity, they should consider working with an intellectual property attorney to review and secure who has rights to publicize that identity. That plan should include posthumous rights. Although artificial intelligence raises new questions with respect to rights of publicity after one's natural death, it's far from a new phenomenon. Just ask Michael Jackson and Elvis Presley, whose estates last year grossed $115 million and $100 million respectively, topping Forbes' list of The Highest-Paid Dead Celebrities of 2023.
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