Joel: We’ve got two representative plaintiffs that purport to essentially represent a group of similarly situated people. And in this case, they talk about potentially hundreds, if not thousands of similarly situated actors. The first question I have is to what extent do these two actors, pursuant to their SAG agreement, have the right to sue in light of the claims?

In other words, they’re members of a union. They are represented by that union, and typically the union steps in for them to advocate their professional position. This is a claim that, as I read it, gives, would at least give rise to the question, do these two individuals, by virtue of being SAG Actor members, do they have a right to sue in their individual capacity?

Mark: In today’s court filing. We look at two actors, two voice actors. Who have sued Lovo for misappropriation and misuse of their voices. It’s fascinating in that the actors actually didn’t know it had happened until they heard themselves on a podcast.

Joel, we had to bring you in for this one because there’s so much at play here that’s a legalese that Shannon and I couldn’t make heads or tails out of it. What we’re talking about is , two voice actors have sued Lovo for using their voice, although they were paid for it. So I want to lay the foundation there.

Joel, what’s your impression of the suit as you were looking at it?

Joel: I think the suit may have merit, I, I think there is certainly a claim, of course, that I read the complaint in conjunction with the New York Times article, that also expands on the careers of these young actors.

I think there are some problems with the complaint, however. when we as lawyers have to funnel it through or filter it through rather.

I think there are claims here. I’m just not confident that they’ve been properly pled in this case.

Mark: Okay.

Joel: And if you want, we can go through the complaint and pick apart the causes of action.

Mark: I think that would be good. And then, Shannon and I can just man on the street respond to what you got to say. So pull up the first one. What do you got?

Joel: So sure. it’s a class action, right?

We begin from that premise, which is we’ve got two representative plaintiffs that purport to essentially represent a group of similarly situated people. and in this case, they talk about potentially hundreds, if not thousands of similarly situated actors. The first question I have is to what extent do these two actors, pursuant to their SAG agreement, have the right to sue in light of the claims?

In other words, they’re members of a union. They are represented by that union, and typically the union steps in for them to advocate their professional position. This is a claim that, as I read it, gives, would at least give rise to the question, do these two individuals, by virtue of being SAG Actor members, do they have a right to sue in their individual capacity?

And is the plaintiff the proper plaintiff here? Because as I was reading this, I thought to myself, why is the union, why is SAG not suing? or joining them in this lawsuit. I don’t know the answer to that, nor do I know whether or not these two individuals have an independent right to sue, independent of the union, but as we’ve seen before, and I think like cases, we saw, for example,

At the end of 2023, there was a number of authors, if you remember, were members of the Authors Guild. The Guild filed suit, not just the individual actors and there’s a technical reason for that, which is that I think the actors, by virtue of, again, I’m repeating myself, being union members, necessarily have to bring in the union.

I wouldn’t be surprised, and again, this case is just in its infancy. We’re not going to see any action on this until very likely towards the end of the year, if that. whether or not, there’s a necessary party here in the union that hasn’t been joined. So that’s question number one.

Mark: Yeah, I did catch on that. But from a layman’s point of view, I said, why are two people filing a class action suit? That’s what kind of stuck out for me. And maybe they can, maybe they can’t. But I didn’t know legally. What is the process for me and Shannon to go and say we’re going to file on behalf of all podcasters?

Joel: that’s just it. And you’ve got to, listen, class actions necessarily are an uphill battle, okay? They are difficult because you have to, under the federal rules, and this was brought pursuant to that, under Rule 23, there’s four elements you have to meet to properly assert a class action. I don’t want to get too legal, but it begins with things like numerosity, typicality, adequacy of the representation, ascertainability, and what we call commonality.

There’s four or five of these elements. And what you have to show there’s a group that’s aggrieved, okay? But the grievance is exactly the same for each individual across the entire class. So there’s not these individual claims like Sally told me, and as a consequence, if Sally didn’t communicate to all the class members, here what they’re saying is the commonality of claims,is essentially by virtue of Lovo, and I guess using Fiverr and other third parties, to essentially recruit the image and likeness I mean specifically voice in this case.

and then do things with it that was contrary to the representations being made, and that’s where the fraud claims come into play.

Shannon: This one for me was, it’s very technical and very legal specific.

What I found very interesting about it is that it starts to branch into whether or not you can protect the assets that are going to be fed into AI. from my perspective, that says what does a contract look like from a legal perspective for somebody to give away their rights to their voice?

There are words their, maybe their books, maybe whatever it is that’s going to get trained. And so for me, what my biggest questions were for Joel was, I’m really curious about where Lova went wrong. I’m also very curious about why did this end up in a lawsuit versus, these voice actors understanding what they needed to do.

So there’s a bunch of things I have as questions about. why did we get here? And what things can you learn from in terms of what happened? especially, we’re all a bunch of folks that are, speaking and doing things on podcasts. So that sounded like, what do we need to understand about Lovo’s business?

What do we need to understand about why they’re getting sued? So we have a little bit more understanding as a community.

Mark: There’s a difference between somebody taking your voice and repurposing it for something and somebody being paid to use their voice and it being repurposed.

Joel: I agree with you, but I don’t want you to get, to the extent that you are, I don’t want you to get too hung up on the, they were paid, because they were paid under false pretenses.

Mark: You really think so? Honestly, you think so?

Joel: I have to treat the allegations as true, as pled.

the allegation here is that they, both of them asked, I think, at least the gentleman did, sufficient questions in terms of how his voice was going to be used and was told, I think, on no less than two or three separate instances that it was for academic research purposes only, it was not for commercial purposes, and there seems to be a clear violation of that, which is baked right into the complaint.

Shannon: And that’s where I saw the connection that I was making, which is. Alright, if they were being, given money for their voice for one intent, and this is actually a separate intent, then doesn’t that mean that it actually has some applicability to Or is the equivalent of basically just taking somebody’s stuff off the internet and starting to feed that into their AI?

Joel: and I think so, and I think the fraud claims, I think there’s something to that. I just, I don’t love necessarily the way that they’re pled, but I think there’s something there.

Shannon: Yeah.

Joel: again, the gentleman in particular appears to have asked, Six ways from Sunday.

Confirm for me, please, how my voice is going to be used, recognizing, of course, that this was precisely the kind of thing he wanted to avoid.

Mark: The same thing happened with Scarlett Johansson this week. Because you knew that I was using her voice alike on my phone when I’m talking to ChatGPT, so that

Joel: It’s not the same thing at all.

Mark: Okay, all right.

Joel: Actually, I disagree with you entirely because apparently if you read the, and I have only read snippets from the internet, but to hear Scarlett Johansson’s side of the story, she was asked by Sam Altman, Can I use your voice? She says, no, you cannot.

Mark: And he goes and finds somebody that sounds like her and uses her.

He did not use her voice.

Joel: Okay, admittedly, I didn’t know that. I thought that he had nevertheless obtained through presumably, publicly available information, i. e. her performances.

Mark: No, let me give you some, a little background, personal background on that, because I think it’s fascinating. And Shannon, you’re already laughing here, but when I am laughing

Shannon: because I think it has something to do with likeness.

Mark: Yeah, when I first heard the new voices coming out with ChatGTP, at the beginning of the year, I chose the Scarlett Johansson’s voice, which was called Sky. And I did a complete drill down to say, Are you Scarlett Johansson’s voice? And it said, No, I am not. And I said, How were you created? And it said, My algorithms are generated from my team.

We didn’t use Scarlett Johansson’s voice. it was saying that. Now we’re getting a different side of the story, where we’re hearing, now six months later, we actually used a voice actress to regenerate that voice, because it’s so similar. And it’s a common voice type. Now, granted, I’m hijacking the conversation here from the voice actors, but, Poor voice actors.

It’s the same thing in a way, how are we going to protect, let’s use voice as the tipping point, but anything that’s personal regarding us, how are we going to protect our voice? Shannon?

Shannon: That’s why this one is so exciting to me because it’s finally a case where I can wrap my head around it and say, all right.

these are people who basically had a contract, but it didn’t really cover the use case, which is super neat from that perspective. And more importantly, it’s the first, possibility I see of the primitive part being fed into AI and actually being discussed in a way where I think it’s going to create a strange precedent.

That if they don’t rule in the favor of the voice actors that we’re gonna see all of a sudden, anybody’s voice could be used, that just seems like a slippery slope, so I’m really curious about this one.

Joel: so a couple of things just as background for our listenership here in New York, there are two statutes and the complaint gets this right as a concept, at least there are two statutes, section 50 and 51 of the New York civil rights law that provides by statute, you cannot use someone’s name and likeness.

And that includes voice, their picture, their portrait. I think by extension it may include their signature, any indicia of individuality for commercial purposes without consent. And what we have here, based on the facts as pled, I think satisfies that. I haven’t looked at these two statutes, 50 and 51, they differ a little bit.

but there is no common law right. In New York, as there are in other states, including, I believe, California. So the rights that we’re talking about here necessarily grow from the legislature, right? They’re statutory rights. And, oh, by the way, yours truly is in the process of actually, on behalf of a client whose image was used unlawfully by his former employer, is in the middle of something right now that hopefully with any luck is going to, perhaps expand into a little bit of litigation.

And I think it’s going to be really interesting. so that’s the first thing I just wanted to respond to that because I think it’s important to talk about, at least brought under New York law, what the baseline is.

Shannon: I was also going to just say, the other thing that’s got me thinking about this is a startup, Lovo is a startup.

And they’re in their like seed funding. So they’re not really a deep pocket. So I’m just curious about like, why this? Why this suit? Like, what do they anticipate getting out of it? Is it really just to get their assets back? there’s a bunch of questions I have about what this really, the intention of it is.

Because I’m not going to like, sue this company and make a bunch of money off of it. So the question in my mind is what’s there, for them to go after? and why would you bring a suit like this? And there’s a bunch of things in there, deceptive practices, and a whole bunch of really interesting things.

Joel: You bring a suit like this because if you’re one of the voice actors, you want to vindicate your rights. if this is, if this goes unchallenged, then they’re voice actors primarily, right? they’re not movie stars. the voice is their bread and butter. And if that voice can be, if that tool can necessarily be appropriated at a whim, these folks are in, are in trouble.

Mark: Let me take it a step further, Joel, to see where you go with this. I actually wrote down the names James Earl Jones and Morgan Freeman. Great. Very, yeah, very recognizable voices.

Joel: so let’s talk about that, because I have something to

Mark: say. I want to combine those two voices into one voice. Does either of the parties have a case?

And you can take that one or not, depending on where you were going with it.

Joel: That’s not where I was going with it at all. Ignore

Mark: me. Ignore me. go. You want to create a

Joel: mashup of those two very distinctive voices. And then ask yourself, would either one or both have a claim?

Mark: it’s not just that, because what we’re going to find is they’re going to take mashups of, say, the top 25 male actors and mesh all those voices together to get a universal voice.

And they’re going to do the same with a female voice. Does anybody have protection if that happens?

Joel: Are we assuming that the language model is the one delivering the output, right?

Mark: Yes. So you’re going to feed it the data of 25 voices and say, give me an average algorithm of these 25 voices.

Joel: And in as much That’s a great question, Mark.

I don’t profess standing on one foot to know the answer.

Mark: stand on two feet then.

Joel: I don’t know where I got that from. I’m standing on one foot. It’s a, it’s an old Sage, whatever. are you suggesting, I’m just asking, are you suggesting that in the two voice Morgan Freeman, James Earl Jones mashup, that the output of that still retains elements from each individual actor?,

Mark: I think it would because there’s not enough diversity to actually mash up a lot of stuff. I use those two because they’re just recognizable names. they’re so

Joel: recognizable, right? And I have something else to say about that. That’s a really interesting question.

Mark: and the answer to your question is absolutely yes.

If you only use two voice actors and mesh those together, there would definitely be recognizable patterns and sounds from each of those people. But as you get more and more people into that pool, individuals become less and less recognizable.

Joel: and of course, what’s the limitation on voice only? Like, when you brought up, for example, you said, they’re going to do it for men, they’re going to do it for women with 25.

I’m now extrapolating from that and thinking of imagery, right? And I’m taking, Hollywood’s best looking male stars. The Brad Pitts, the Mark Harmons in his heyday. what’s his name? Tom Cruise. You mash all of these men up, and women too, to create this idealistic version.

of a male leading man,

Mark: right? Absolutely. Yes. Yeah.

Joel: does any one of them then have, a claim? And I think, I don’t think this is the starting point, but I think one of the inquiries to be made is, Is there a commercial purpose for which the mashup is being used?

Mark: Absolutely, yes. As there is

Joel: under your scenario?

Then I’m inclined, I’m sure there are enough creative plaintiff’s attorneys, and I might even include myself on a good day, that would be inclined to make an argument That post mashup, that any individual actor whose, you know, whose speech, cadence, likeness, including imagery, visual, has been used would have a claim.

Mark: What if it’s not recognizable? I want to dig into this because it’s the crux of the problem here. When we’re doing, large language models, or large artwork models, if something is not identifiable to the original source, how can you prove How can Morgan Freeman prove that his voice was used in the final output?

Joel: I, it,scientifically, I guess you could put it through an 8 track and isolate, you know what I mean? there, there are, No, sorry,

Mark: not gonna, no. No,

Joel: you’re not, okay, so if you’re telling me there’s no way to isolate his voice, but his claim is, Oh, but my voice is being used, and he can’t prove it, then he’s got no claim.

All right? he’s a plaintiff. He bears the burden. I do want to harp on something, though, that you’ve identified, but I want to focus in on this because I think it’s really interesting. You said, you referred to Morgan Friedman as a source, right? by implication, we’re talking about the voice of James Earl Jones, being a source indicator.

That’s what a trademark is. That’s exactly what a trademark is. A trademark is a source indicator. So when I say Coca Cola, you invariably think of a red background, you think of some swirly white lettering, right? When I say Tide, you think of a bullseye, etc., etc. etc. one of the problems with this complaint is that it alleges unfair competition under 1125, which is a 15 U.

S. C. 1125, which is a trademark statute. These two individuals, notwithstanding the fact that they’ve had their voices appropriated, and I think it’s wrong, and I think there’s other claims, I don’t think their voices are recognizable indicators of source. In other words, their voices aren’t trademarks. And because their voices aren’t trademarks, I would argue those claims will likely fall away.

that’s within the hodgepodge of claims being brought. The other thing that I think is wrong with this complaint, and I haven’t looked at this in some years, but I know that they plead claims under both New York General Obligations Law 349 and 350. At least one of those, and I don’t think it’s both, but one of them, and I can’t remember, I can never remember which one, requires the harm that is purportedly being done to affect public health.

ok, public health or a larger public interest, there’s gotta be some harm to the public. that, and again, the case is talking about this, I think it’s a public health issue. One of these claims would necessarily fall away because the harm that we’re talking about is not one like contaminated water or something like that.

That’s just not the kind of deceptive practice that the statute acknowledges. so one of those claims, whichever one again applies to public health, I think should fall away. and some of the fraud claims, I think, again, I get it as a concept. I think it’s probably, maybe with a little bit of tweaking, that’s enough.

But, fraud is tough to prove, Fraud is tough to prove because you’ve got to prove reliance and things like that, but I think they’ve got enough as pled. the idea being that these two actors relied upon the representations that were being made, namely that their voices would not be used for a commercial purpose, but rather academic or a non commercial purpose.

And they were lied to, and I think there is at least a fraud in, they don’t phrase it like this, but there would be a fraud in the inducement, which is a separate claim, separate and apart from garden variety fraud.

Mark: Shannon, before I jump in and throw another grenade in a different direction, where are you now?

I was

Shannon: going to say, we ended up in Morgan Freeman, so far away from the case.

Joel: Oh, and my point only is, and I don’t know if I said this explicitly, but let me just put a cherry on top. they’re not, their voice, their, meaning the plaintiffs in this case, are not trademarks. I would argue, however, though, that the voice of Morgan Freeman and the voice of James Earl Jones are by contrast, are, such that a, that an ordinary consumer would recognize those voices.

And those voices And that’s a

Shannon: good point. But I think, and Mark, you get into some mashing stuff, and I think that’s away from the case. to me, what’s really fascinating about this case is, for the ordinary person who’s trying to make a living, who’s basically selling their voice as voiceover work, to see a company start to try to harvest that, really, I think is not right way.

It just feels icky, right? So the fact that we’re seeing the case was, like, very interesting. There’s a whole lot in here that’s technical, like I said, coming back around. I’m very curious, and this goes back to Joel, what should we be looking at in terms of contracting? if you’re selling your voice, your book, your words, your things nowadays, what do you have to do to protect yourself if you’re doing that?

And then, on the counter side, if you’re buying, what do you have to make sure of not to end up in this situation?

Mark: that’s an interesting one too, Joel, because I want you to cover that. Is there was a researcher at MIT that actually used the Lovo Voices. How could they have protected themselves from being part of this suit to say, this is the guy that actually did it?

Because is Lovo, by making these voices publicly available, implicitly stating that it’s okay to use these?

Joel: No, because apparently, and again, guys, it’s a facts test, right? apparently the claim is that deep embedded on one of the many hundreds of pages on this website is that, hey, by the way, you can’t use this.

It’s for entertainment purposes only, right? Oh,

Mark: that’s bullshit.

Joel: listen, I think they would maybe have a duty to make that more, front and center. But my other understanding is that, Third parties, like you and I could go on here and buy access to the voices.

I think what makes this case so interesting is the insidious manner in which Lovo is alleged to have acquired the voices. That’s what I think is so key. and then the other thing is that, they seem to thumb their nose at the suggestion. That an individual, has, a right to their voice, and specifically I’m talking about that photo in the complaint, where you have Barack Yo-Mama.

And O’coon O’Brien and all those goops on real celebrities. And what they’re doing is they’re obviously the, I didn’t click on it. I don’t think you, I don’t think actually you could from the complaint, but the idea of being that if I click on Cocoon O’Brien, I’m going to get a Conan O’Brien like voice, but I’m not advertising it as Conan O’Brien.

Therefore I’m okay. Not withstanding the fact that the avatar they use looks exactly like Conan O’Brien if he was, animated. it’s, there’s a, I think the company has some splaining to do, as we like to say.

Shannon: Yeah, definitely that. it’s like I said, it’s icky.

This one’s icky.

Joel: Yeah, I think, and I think, you know, I don’t know if they didn’t go through legal or if legal was asleep at the wheel or whatever, but, there’s some issues here. Now, I, again, I don’t know if it, at the end of the day, whether or not this is a real bona fide class action.

only time will tell and that’ll be a proof issue.

Mark: It’s good to make good talking points though, because it finally brings to the forefront, as Shannon said at the beginning, where are we headed with protecting our personal identity? That’s the bottom line here.

Joel: And this is really, and this is different though.

And let’s harken back to something we’ve talked about before. We, almost every episode, we bring up the Sarah Silverman case, right? We do. Which was, what was the claim there? The joke is in the style of Sarah Silverman, right? In the style, right? Here, we’re talking about something that’s much closer to the individual than just a stylistic issue.

It’s their voice. It’s their voice. And again, we go back to the George Carlin case that we talked about some weeks ago. That case settled, but invariably it settled to some extent in favor of the plaintiff, because why? Because the synthetic,monologue that had been generated in the language model was using his face and his, and something approximating his voice.

in the delivery of that monologue. So I think we, I think it’s a continuum. And we have, at one end we have the actual voice, the imagery of the artist. On the other, we have something more approaching the Sarah Silverman, which is in the style of.

Shannon: one of the things that’s interesting about this, I think that style versus actual on the voice is very interesting to me.

That also brings up though, it’s your actual words when we’re actually dealing with things where somebody’s doing because Their copyrighted material, in terms of the written words, is actually making its way into these training capabilities. So, like I said, for me, this one was the most interesting because now I’m starting to see that, baseline component part of voice and words, potentially, and maybe your image, all of these different things.

I do think there needs to be protection around that. And the fact that we could maybe leverage name image like this is a really interesting concept about. how that plays in. But I think that’s the second question I had was, okay, so now that we’ve gotten there, what does somebody have to do to protect themselves during contracting?

And then what does the company need to think about in terms of contracting where this lawsuit isn’t going to take place again?

Joel: I think it’s a negotiation like everything else. I think, and you have to, it’s going to come down to good drafting and it’s going to come down to a meeting of the minds.

And, listen, there’s nothing out there. That would have made these two named plaintiffs, the surrendering of their rights improper, they could have contracted away those rights. You can, as a private, you can contract away all of your rights, including your constitutional rights, in, in most cases.

so there’s nothing wrong with that. I, again, I keep harping on it because I think it’s so critical to these facts. The question is what is the reference being made to you?

Shannon: Yeah, but let me dig in. I think what you’re saying is they can contract it away. Let me ask this question. If the contract had a royalty associated with it, Would we be sitting here still?

Joel: maybe, but the claims would be different. It would be they breached the agreement because presumably they aren’t paying the royalty that they agreed to pay me.

Mark: it is picking on the fact

Shannon: that what if it was royalties

If you use my stuff, forget about just my voice, if you use my stuff,

Mark: Using that as an example, yeah.

Shannon: Yeah, if you look at, actually, what was really interesting, I just went to the Canva Create conference yesterday, and they pledged, I think, 200 million dollars to their community, for, them to be able to train their AI on some of the assets and things there.

And to me that, that looks like, again, somewhat of a royalty, if you will. You

Mark: know, Joel, where all this leads is it seems to me you personally are sitting pretty right now with this industry, with your knowledge and what you do for a living. That you’ve got a good five years ahead of you right now.

Joel: From your lips to God’s ears, my friend.