District court denies in part and grants in part AI startup's motion to dismiss claims by voice actors involving creation and use of AI-generated voice clones, allowing breach of contract and right of publicity claims to proceed but dismissing federal trademark claims and most copyright claims.
Plaintiffs Paul Lehrman and Linnea Sage, both professional voice
actors, brought a putative class action against Lovo Inc., an
artificial intelligence (AI) voice-over software company, alleging
that Lovo unlawfully used their voices to create and sell
AI-generated voice clones.
In 2019 and 2020, Lehrman and Sage were hired through online
platform Fiverr by individuals later revealed to be Lovo employees.
They were told their recordings would be used solely for internal
and academic research. Instead, Lovo used the recordings to train
its AI voice generator, "Genny," and created voice clones
marketed under the names "Kyle Snow" and "Sally
Coleman." These clones were sold to Lovo's customers for
commercial use, including in podcasts and advertisements.
Plaintiffs filed suit asserting federal copyright and trademark
claims, statutory state law consumer protection and right of
publicity claims, and state common law claims for breach of
contract, among others, based on allegations that these voice
clones were virtually indistinguishable from their real voices and
were used without proper authorization or compensation.
Lovo moved to dismiss the complaint. The court denied in part and
granted in part Lovo's motion to dismiss, allowing state law
claims of breach of contract, New York's consumer protection
law and New York's right of publicity statute to proceed, while
dismissing federal trademark claims and most of the federal
copyright claims as well as the state common law claims other than
breach of contract.
Breach of Contract
The court allowed the breach of contract claims to proceed,
finding that plaintiffs plausibly alleged that they entered into
binding agreements with Lovo's agents via Fiverr, which
included offers to buy plaintiffs' voice recordings,
plaintiffs' acceptance of those offers conditioned on explicit
limitations on how the recordings could be used, and the delivery
of—and payment for—the voice recordings.
The court rejected Lovo's argument that the contracts violated
the Statute of Frauds. The court determined that the online
messages between plaintiffs and the Lovo employees included
material terms of the contract, including the transfer of voice
recordings for money subject to limitations on use. These online
messages—coupled with Fiverr's Terms of Service that
plausibly supplemented material terms—satisfied the Statute
of Frauds. The court also declined to invalidate the contracts
based on the fact that the full legal names of the Lovo employees
did not appear in the online messages.
Lanham Act Claims
Plaintiffs brought two claims under the Lanham Act: false
association (Section 43(a)(1)(A)) and false advertising (Section
43(a)(1)(B)). The court dismissed both.
As to false association, the key question involved whether a voice
is a "mark" entitled to protection. The court held it was
not. While courts have recognized that one's likeness or
persona—including voice—can function as a trademark,
the court distinguished between using a voice as the product itself
versus using a voice as a brand to identify the source or origin of
the product. Here, plaintiffs' voices were used as the product
itself—i.e., the content in the sound recordings—and
were not used to identify the source of the sound recordings. The
court emphasized that trademark law is not intended to protect the
product itself and that allowing those claims would improperly
extend trademark protection into the realm of copyright and
publicity rights.
The court likewise dismissed the false advertising claim.
Plaintiffs first argued that Lovo falsely marketed their voices
under the names Kyle Snow and Sally Coleman. However, the court
recognized that Lovo was not selling the actual voices but rather
was truthfully marketing these voices as clones of real actors'
voices. Plaintiffs additionally argued that Lovo falsely claimed to
have full commercial rights to their voices, but the court found
that these statements did not concern the "nature,
characteristics, or qualities" of a product as required under
the Lanham Act. Instead, they were misrepresentations about
licensing status, which are not actionable under the statute.
Copyright Infringement
The court then addressed four types of copyright claims, with
mixed results.
The court allowed Sage's claim relating to Lovo's use of
her actual voice recording in investor presentations and in videos
on Lovo's YouTube channel. The court found that this use
exceeded the scope of the license in Fiverr's Terms of Service
and constituted direct infringement.
On plaintiffs' claims based on Lovo's use of their voice to
train its AI model Genny, the court found that plaintiffs failed to
explain how Lovo's AI training process infringed their
copyrights. Noting that with more detail, those claims might be
viable, the court dismissed the claims but granted plaintiffs leave
to amend.
As to plaintiffs' copyright claim based on the output of the AI
model—i.e., the voice clones—the court held that
copyright law does not protect against imitation or simulation of a
voice, only against direct copying of a fixed recording. Since the
AI-generated voices were completely new recordings that
mimicked—but did not reproduce—the originals, they fell
outside the scope of copyright protection, and the court dismissed
them.
Last, the court dismissed the contributory copyright infringement
claims, finding that plaintiffs failed to allege that any third
party reproduced the original sound recordings that plaintiffs
owned.
New York Civil Rights Law (Sections 50 and 51)
The court upheld plaintiffs' claims under New York's
right of publicity statute, Civil Rights Law (Sections 50 and 51),
which prohibits the unauthorized commercial use of a person's
name, portrait, picture or voice. Lovo's main argument on its
motion to dismiss was that Section 50's recent amendment
protecting digital replicas of deceased persons meant that living
persons were excluded from the statute's scope. The court
disagreed, however, recognizing that living persons had already
been covered under the law before the amendment took effect. The
court also noted that the statute's purpose is to protect
one's identity—whether the person is deceased or
living—and that a voice clone is a recognizable
representation of a person's identity.
The court then found that plaintiffs adequately alleged that the
voice clones were recognizable as plaintiffs'; that the voice
clones were used in New York by Lovo's customers; and that the
voice clones were used for commercial purposes—for example,
to "increase the appeal of [Lovo's] software, acquire
subscribers, and retain subscribers it already had."
New York General Business Law (Sections 349 and 350)
The court also allowed plaintiffs' statutory consumer
protection claims under New York General Business Law (Sections 349
and 350). The court found that Lovo's actions amounted to a
materially misleading practice directed at the public at large that
harmed both consumers and plaintiffs as competitors.
Regarding harm to consumers, the court concluded that Lovo's
customers "received a product that was worth less than Lovo
promised," acknowledging plaintiff's allegation that Lovo
misled its customers by claiming to offer full commercial rights to
the voice clones without legal restrictions, despite the fact that
such use violated New York's right of publicity statute.
Regarding harm to plaintiffs, the court found that they plausibly
alleged diverted customers and lost sales, and it noted that
plaintiffs did not need to be Lovo's customers themselves to
have standing to bring these claims.
Common Law Claims
Finally, the court dismissed plaintiffs' claims for fraud, unjust enrichment, conversion and unfair competition. The fraud claim was dismissed as duplicative of the contract claims, since Lovo's promise to limit the use of the voice recordings "directly relate[s] to a specific provision in the contract." The unjust enrichment and conversion claims were preempted by New York's right of publicity statute. Finally, the unfair competition claim was dismissed for the same reasons the Lanham Act false association claim was dismissed.
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