(Paul Lehrman, et al. v. LOVO Inc., No. 24-3770, S.D. N.Y.)
(Plaintiffs’ opposition available. Document #46-250205-014B.)
The plaintiffs’ filed their opposition on Jan. 10.
Voice actors Paul Lehrman and Linnea Sage filed a class action in the U.S. District Court for the Southern District of New York alleging violation of various state privacy laws and the Lanham Act, 15 U.S.C. § 1125(a). In the suit, the plaintiffs note the recent publicity surrounding deepfakes and other images and videos fabricated by artificial intelligence. “This case is about something even more basic but no less sinister: it is about a tech company that has illegally cloned actors’ voices and sold them to unsuspecting customers.”
LOVO Inc. created millions of voice-overs without permission or compensation, the plaintiffs allege. The plaintiffs claim that they were duped into providing their voice for training LOVO’s AI and that the company continues to use their illegal voice clones. Further, on its website LOVO touts its ability to clone celebrity voices.
Time
An amended complaint filed Sept. 25 includes John Doe plaintiffs who subscribed to LOVO thinking they were gaining legal access to rights to use AI voices. In the amended complaint, the plaintiffs allege violation of New York Civil Rights Law Section 50 and 51, N.Y. Civ. R. L. §50, 51, violations of New York General Business Law Section 349, N.Y. GBL § 349, violations of New York False Advertising Act Section 350, N.Y. GBL § 350, violations of Section 43 of the Lanham Act, 15 U.S.C. § 1125(a), unjust enrichment, conversion on behalf of Lehrman, Sage and the voice actor class, fraud, breach and breach of contract on behalf of Lehrman and Sage, copyright infringement on behalf of Lehrman and Sage and unfair competition.
LOVO moved to dismiss on Nov. 25, arguing that to the extent that the plaintiffs are using John Doe for a hypothetical plaintiff that does not exist, the claims fail.
Further, the New York civil rights claims are all outside of the one-year statute of limitations, LOVO says. Neither Lehrman nor Sage even alleges that their voice recordings were used in an illegal manner, let alone alleging when any violation occurred that would fall within the statute of limitations, LOVO says.
New York law also requires that the alleged advertising be used within the state, LOVO says. But where the plaintiffs point to usage of allegedly illegal voice clones, they don’t allege any such usage in New York, LOVO says.
In addition, the claims must fail because the allegations involving Lehrman and Sage don’t involve consumers but instead appear to relate to contracts, LOVO says.
Lanham And Fraud
The Lanham Act and false affiliation claim should be dismissed because there is no such claim under the act, LOVO says. Even the Lanham Act claim by itself cannot survive because there is no allegedly materially false statement, LOVO argues.
And the conversion claim requires the property that is an identifiable thing, LOVO argues. Allegations that LOVO clones the plaintiffs’ voices do not rise to this level as one cannot convert a voice, LOVO says.
Finally, as to the fraud claim, LOVO argues that there is no evidence that any cloned voice of the plaintiff was used in public minus one incident or that the plaintiffs were not informed that their voice recordings could be used to train AI. These “threadbare” allegations fail to establish either a fraud or breach of contract claim, the company says.
Statute Of Limitations
In opposition, the plaintiffs argue that Sections 50 and 51 of the Civil Rights Law prohibit the use of someone’s voice without written consent. And while those sections are governed by a one-year statute of limitations, LOVO is incorrect that the time to bring suit has therefore run out. While more than a year has passed since the first publication of the offending AI voice, republication extends the deadline. LOVO allegedly removed the clones of Lehrman’s voice, but they remain available, including to new customers through October 2023, the plaintiffs say.
“LOVO’s argument that these were not really violations because the publications were not of Plaintiffs’ ‘actual audio recordings’ is ludicrous,” the plaintiffs say. The cloned voices are essentially identical and are protected, the plaintiffs say. “For that same reason, Defendant’s argument that its conduct is protected because LOVO assigned the Plaintiffs’ cloned voices to the Kyle Snow and Sally Coleman pseudonyms is just silly,” the plaintiffs say.
The court should reject LOVO’s argument that its voice clones don’t constitute a use of the voices, the plaintiffs say. LOVO itself touts how indistinguishably close its clones are to the original voices. The statute in question would be of little use if slight changes to the voice could render the entire law inapplicable, the plaintiffs say.
As to marketing and trade, LOVO uses the cloned voices in both, the plaintiffs say. LOVO relies on the cloned voices in advertising to sell subscriptions. Nothing suggests that LOVO excluded the New York marketplace from its global online advertising efforts. The plaintiffs say LOVO’s actions in reaching out to plaintiffs to obtain recordings of their voices was a violation of New York law. The plaintiffs say they are not large corporations but individual practitioners. LOVO knew what it hoped to do with the recordings it contracted to receive but was deceptive in how it went about obtaining them. That deception continued to the consumers, who believed that they were paying for legal and legitimately obtained and compensated sources, the plaintiffs say.
The plaintiffs say that LOVO posting likenesses of their voices under pseudonyms and without consent violated the Lanham Act.
Marks
Voices constitute a valid mark for Lanham Act purposes, the plaintiffs say. In addition, it is not just plausible that consumers will be confused, as the Lanham Act requires, but likely that such confusion will occur. LOVO’s offering of these voices under fake names constitutes falsity and has harmed the plaintiffs, who are clearly competitors in the voice marketplace. While LOVO says it is not possible to identify either named plaintiff’s voice in the AI, this is “a bizarre and false argument” since the plaintiffs became aware of the illegal action by recognition of the voices, they argue.
The unjust enrichment claim is pleaded in the alternative and can survive, the plaintiffs say. And the conversion claim survives, as LOVO cloned voices to which Lehrman and Sage undoubtedly have an ownership right and interest.
“Defendant engaged in conversion, very simply, by cloning Plaintiffs’ voices and repackaging and reselling them as Kyle Snow and Sally Coleman. Defendant converted the money that Plaintiffs otherwise would have earned from their voices. Exactly how much money Defendant earned from Plaintiffs’ voices is known only to Defendant at this stage. But it is an identifiable, specific amount,” the plaintiffs contend. The plaintiffs reject the argument that they don’t own Snow’s or Coleman’s voice. The plaintiffs say that they own their voices and that LOVO copied those voices for their own use.
LOVO’s arguments about the fraud claim are a distraction, and the presence of a contract does not change anything, the plaintiffs argue.
As to the copyright claims, LOVO used Sage’s voice at an investor presentation during conference, the plaintiffs say. Sage owned that voice, and LOVO used a copy without permission. The copyright claim survives, the plaintiffs say.
Counsel
The voice actors are represented by Steve Cohen and Anna Menkova of Pollock Cohen LLP in New York.
LOVO is represented by Michael S. Lazaroff of Rimon PC in New York, David E. Case of the firm’s Menlo Park, Calif., office and William W. Bergesch of its Jericho, N.Y., office.
(Additional documents available: LOVO’s motion to dismiss. Document #46-250205-013M. First amended complaint. Document #46-250205-012C.)