Category: Artificial Intelligence (AI)

Voice actors, tricked by LOVO into creating AI replicas, file suit.

LOVO, Inc.

A class-action suit was filed last week by voice actors Paul Lehrman and Linnea Sage against AI developer LOVO, Inc. According to the complaint, LOVO induced the actors to provide recorded material under false pretenses—material which was then used to produce synthetic replicas of their voices to become part of a catalog offered to paying customers. The complaint also alleges that LOVO defrauds its customers who believe they are using voices that have been legally obtained.

Both Lehrman and Sage were contacted via the freelance hub FIVVER and solicited for voice work. Both asked about the ultimate uses of the recordings—a standard question which affects the price an actor will charge—and both were lied to, according to the complaint. Lehrman was told that the recordings would be used exclusively for academic research, and Sage was told that hers would be used to produce “test scripts” for radio spots. In fact, both anonymized parties who contacted the actors were employees of LOVO—co-founder Tom Lee allegedly contacted Sage—and the sound recordings were used to train the company’s AI to create replicas of Lehrman and Sage’s voices.

Not only were the actors’ voices added to LOVO’s catalog, but the company also used the replicas for its own marketing and capital-raising purposes, renaming Lerman and Sage as “Kyle Snow” and “Sally Coleman” respectively. For instance, the complaint alleges that Sage’s voice was used in demonstrations to raise millions of dollars in venture capital, and Lehrman discovered LOVO promoting the narration attributes of “Kyle Snow” in its own article entitled “The 5 Best Male Voices for Text to Speech.”

The causes of action in the complaint include violations of New York’s right of publicity (ROP) law, deceptive practices, false advertising, violations of the Lanham Act, unjust enrichment, and fraud. Further, the complaint not only alleges harm to the actors but to LOVO’s customers who are misled into believing that the voices being used in their commercial projects have been licensed or otherwise obtained by permission. Plaintiffs seek millions in damages and legal fees.

Before saying anything else, speaking as a guy who is not very spiritual by nature, LOVO has engaged in the practice of soul stealing. Specifically, for Paul Lehrman to read a description of his performance attributes, having had that talent literally stolen and bottled for sale, is a chilling thought. “With his upbeat tone and slightly faster talking speed, Kyle Snow has the perfect voice for conveying enthusiasm and youthfulness,” the description begins. The prospects of AI replacement in the workforce are problematic enough, but imagine reading your own resume and discovering that it’s actually promoting an AI replica of you made without your permission.

The proceedings of this case may prove instructive to many parties with an interest in public policy related to artificial intelligence. The deceptions, if proven, should be damning to LOVO itself, but this case entails considerations that will be worth watching, even where AI development is conducted without lying to obtain training material. Specifically, many interests are looking at state ROP law as a basis for expanding related protections for all individuals. This complaint cites NYS civil rights law, which “imposes liability on a party for misappropriating an actor’s voice ‘for advertising purposes or for the purposes of trade without … written consent[.]’”

The use of a performer’s likeness for advertising purposes is central to many ROP laws in the states that have such statutes, but this case implies taking a more universal approach to proscribing the reproduction of anyone’s likeness for almost any purpose without permission. In fact, the sci-fi thriller quality of transferring not just the technical sound of a voice, but the personality of that voice, reaches beyond the concept of “likeness” as applied to date. It adds a new layer of meaning to the crime of “identity theft.”

Creative work is always a combination of natural talent and hard work to develop certain skills, but one need not be an actor, or any kind of artist, for the same principles to apply. If identity comprises thought, emotion, likeness, and movement, which of these attributes must be copied—and with what degree of precision—before “soul stealing” occurs? I don’t know the answer to that, but I will very curious to see what precedents are set by a case like this one.

Thoughts on the No AI FRAUD Act

The acronym stands for No Artificial Intelligence Fake Replicas and Unauthorized Duplication. Introduced as a discussion draft by Rep. Maria Salazar et al., the No AI FRAUD Act would create a novel form of intellectual property in direct response to the use of AI to “clone” a likeness. With parallels to right of publicity (ROP) law, combined with a copyright-like, transferable ownership of rights, the No FRAUD bill is sweeping as currently proposed, citing a range of conduct, from deepfakes to create and distribute nonconsensual intimate material, to cloning an actor or singer’s voice for commercial exploitation.

In short, the law would prohibit replication of anyone’s likeness without permission, and then, the purpose of the unlicensed replication would determine the nature of the harm and available remedies. Although the intent of this bill is well-founded in addressing certain harms to individuals like performing artists, the bill’s current scope, combining permission and intent, and seeking to remedy a broad range of potential harms, raises some difficulties.

Permission vs. Intent

As discussed on this blog, Cyber Civil Rights Initiative (CCRI) leaders, Danielle Citron and Mary Anne Franks, have advocated a permission-based, rather than an intent-based cause of action for the nonconsensual distribution of intimate material, commonly referred to as “revenge porn.”[1] The CCRI has worked hard to demonstrate that merely distributing this material without permission is criminal, regardless of the intent to cause harm, and this makes sense in response to the nature of the conduct. But advancement in AI replication presents a unique challenge to the principle that permission is universally the signal event triggering liability.

No question that the guy who shares intimate material of an ex, a girl at school, a work colleague, etc. should be held accountable solely on the basis that he lacked permission, and this is valid whether the visual material is real (i.e., photographic) or synthetic (i.e., produced with an AI). First Amendment defenses for this type of conduct have reasonably failed when various parties challenged the constitutionality of several of the “revenge porn” laws, now in force in 48 states. The permission principle in harassment-based complaints should not be disturbed by the No FRAUD Act, and Congress should likely avoid any temptation to combine the intent of this bill with current or developing federal prohibitions for “revenge porn.”

But the use of AI to replicate a likeness cannot so broadly be proscribed for all purposes. As the Motion Picture Association notes in its response to the bill, “… any legislation must protect the ability of the MPA’s members and other creators to use digital replicas in contexts that are fully protected by the First Amendment.” Notwithstanding contractual conflicts that may arise in the future among performers and producers, the MPA is right to note that AI cloning for expressive purposes that constitute protected speech should not be swept into the scope of legislation like the No FRAUD Act.

The example I often use with friends and colleagues is the movie or TV series that casts a public figure (let’s call him Donald Trump) in a light he might not appreciate. Expressive portrayals—factual, dramatic, or sardonic—of public figures are paradigmatic forms of protected speech, and this principle should not be altered by vesting new IP rights in persons, premised solely on the use of AI models to achieve the same expressive results historically created with old-school “movie magic.” In other words, Trump should no more be empowered to enjoin the use of his AI likeness to comment upon his role in society than he would have been allowed to stop Saturday Night Live from producing the sketches featuring Alec Baldwin.

Vesting new “likeness IP” rights in all persons is a reasonable response to the potential harms—both financial and reputational—that may be caused to millions of creative professionals and ordinary citizens. But these goals must allow for expressive uses of AI replication, adhering to longstanding contours protecting the speech right and controlling limits like libel and defamation.

In another example, imagine a documentary about the events of January 6th that includes reenactments based on witness testimony describing the actions of the former president during the attack on the Capitol. The documentary producer’s legal responsibility to balance faithful reportage with reasonable expressive license should not be altered solely on the basis that the film may use generated AI likenesses of Trump, Meadows, Hutchinson, Ivanka, et al. rather than actors to produce the same scene.

With a documentary film, one can imagine a legal requirement to inform the viewer that what they are seeing is an AI-generated reenactment (rather than, say, someone’s cellphone recording), but no such requirement should apply to a non-documentary audiovisual work. In either case, misinformation is already thriving in a dangerously blurry space between fact and fiction and a decline in media literacy fostered by the ability of any individual to distribute any fragment of material without context on a public platform. In other words, the documentarian can do her job right, but she cannot stop every potential bad actor from taking a segment of that reenactment and publishing it in a manner that changes its context and feeds a false narrative. (Thank you to all those who celebrated “remix culture” as a rejection of copyright law.)

AI Generated Likeness and the Misinformation Problem

Regarding the documentary example, the preamble of the No FRAUD working draft cites the use of unauthorized likenesses for the purpose of disinforming the public about matters of a factual or newsworthy nature. And while this is indeed a problem that AI tools will be used to exacerbate, it is a challenge that should be addressed separately from the intent and sweep of the No FRAUD proposal. Congress must recognize that the capacity to cause widespread, societal harm through disinformation by means of AI likeness replication is too hazardous and too rampant to remedy on a case-by-case, civil-liability basis. And that’s even if the producer of the fake is operating within the reach of U.S. law rather than, say, China or Russia.

Further, there is a legal tension created by comparing and contrasting the entertainment satirist with the news provocateur who trades in misinformation, as we see in the claims of slander against Tucker Carlson of FOX News in 2020. Arguing that “no reasonable person” would truly believe everything Carlson says, Fox’s attorneys successfully defended the network against any cause of action, and while this may be a reasonable finding based on the facts presented, it is one of many examples in which the lines separating opinion, criticism, satire, and information have been blurred beyond relevance vis-à-vis public perception. Now add the ability to cheaply recreate anyone’s likeness with sophisticated AI, and how far can a “news” organization push the line under the same protections that apply to the satirical filmmaker or The Daily Show?

Of course, my references here to Trump and Carlson allude to a much bigger, underlying problem—namely that Congress is not going to effectively address the use of AI likeness for misinformation unless Members on both sides can agree to mutually define fact and fiction. Not to say that Dems never cling to narratives built on some rather shaky foundations, only that it’s hard to compete with the existential lies of whatever the hell the GOP has become in the thrall of Trumpism. That and no American political figure has ever proven to be so thin-skinned in response to criticism.

For the moment, my own view is that a bill like No FRAUD should be narrowly tailored to vest new “likeness IP” in persons to proscribe compelled speech and commercial exploitation that meets standards akin to unfair competition. Further, because such uses require a court to weigh the intent of likeness replication, this new right should not preempt or alter anti- “revenge porn” legislation, where lack of permission must remain the sole cause of action. While I see the potential of this bill to protect various artists and non-artists with novel rights against novel harms, difficulties like those addressed in this post must help define the contours of those new rights.

[1] “Revenge porn” is a problematic term because it implies intent to harm, which is anathema to the principle that lack of consent is the cause of action.

Image by: meyerandmeyer

“Fair Use” is Not a Great Business Plan

Lately, we’ve seen several headlines and comments from tech giants say that AI ventures simply cannot succeed if they are forced to contend with the copyrights in the billions of works they have scraped for the purpose of machine learning (ML). When these headlines are paired with the rampant assertions that ML is inherently fair use—a subject addressed in last Wednesday’s Senate Judiciary Committee (SJC) hearing on AI and journalism—one has to wonder about the business decisions being made before generative AI exploded last year.

In many posts on this blog, including at least a few written during “Fair Use Week,” I have repeated the caveat that “fair use” is not a magic phrase that makes infringement claims disappear. Usually, that advice is directed at small and independent users of works, suggesting they not listen to Big Tech and its network of academics and activists, who will not be on the hook for the small guy’s copyright infringement. I always assumed the big guys knew better, that they were merely chanting the “fair use” mantra as a rhetorical device in the blogosphere to promote the anti-copyright agenda. But maybe they don’t know better.

If I were an AI investor asking about potential liability, and the founders told me, “Don’t worry, what we’re doing is fair use,” my immediate response would be to ask whether there is sufficient funding for major litigation, to say nothing of predicting the outcome of that litigation. Because simply put, the party who conjures the term “fair use” has effectively assumed that a potential liability for copyright infringement exists. And if that assumption is a bad business decision, then that’s the founders’ problem, not a flaw in copyright law.

No matter what the critics say, or how hard certain academics try to alter its meaning, the courts are clear that fair use is an affirmative defense to a claim of copyright infringement, which means that building a business venture on an assumption of fair use is tantamount to assuming that lawsuits are coming. And if it’s a multi-billion-dollar venture that potentially infringes millions of works owned by major corporations, then the lawsuits are going to be big—perhaps even existential.

Do Not Expect Congress to Change Fair Use in Any Direction

Notably, as reported in Wired, Conde Nast CEO Roger Lynch stated at one point during questioning by the SJC last week, “If Congress could clarify that the use of our content, or other publisher content, for the training and output of AI models is not fair use, then the free market will take care of the rest,” to which Sen. Hawley replied that this seems reasonable. But I wonder about this exchange. While it is encouraging to find the senators more sympathetic with the news organizations than with the AI developers, I doubt (and would not even hope) that Congress is going to amend the law to explicitly state that ML is categorically never fair use.

Fair use comprises a history of judge-made law that was codified into statute as Section 107 of the 1976 revision of the U.S. Copyright Act. But the statute does not draw bright lines stating that X is always fair use and Y is never fair use, and for good reason. Because justice for all parties is best served by a court weighing the specific facts of a specific use of a specific work, or body of works. Hence, an attorney will tell you that fair use is a “fact intensive” consideration.

If Congress were to explicitly declare, for instance, that ML can never be fair use, this would be a significant departure from doctrine, and one that is preemptively unjust to the potential AI developer with a fact pattern that would favor a finding of fair use. As much as I find the major generative AI companies to be some combination of arrogant and/or useless, and as much as I scorn their generalizations to-date about fair use, it would be wrong to endorse legislative revision of the fair use doctrine as a sound response.

In fact, if the court were to find fair use for ML in New York Times v. Open AI (and I doubt it will), and Congress sought to remedy that outcome, it would still not make sense to amend Section 107. If anything, news organizations and other copyright owners would likely seek a new section of the Copyright Act tailored to the nature of the new form of harm, which Big Tech would then blindly oppose with every available resource. For instance, it is possible that the Times would not currently be suing Open AI if the tech industry had not opposed the Journalism Competition and Preservation Act (JCPA), which would have temporarily exempted news organizations from antitrust barriers to collective bargaining for licensing their content.

Regardless, no party should be asking Congress to “clarify fair use” in response to AI. If the AI founders and investors made a bad bet on an ultimate finding of fair use, that’s tough noogies for them. But neither should content creators want Congress to open that particular can of worms and disturb the fair use case law. Of course, where Congress should intervene is to address harms caused by AI where no law currently applies. On that subject, the next post discusses the recently proposed No AI FRAUD Act.

Phot source by areporter.