A recent lawsuit filed against TikTok in the United States raises interesting issues concerning the rights of individuals providing voiceover services.
The Facts
The plaintiff is a Canadian voice-over actor and is well-known in the voice-over industry. In addition, because of the extent of her work, her voice is said to be well-known in the US and other countries, including Canada.
The plaintiff was hired by the Institute of Acoustics, a research organization of the Chinese government, in 2018 to perform voice work. The work consisted of reading thousands of English sentences which she was told would be used for translation purposes. The work is related to “text to speech” and artificial intelligence technology that resulted in the Institute’s acquisition of electronic data files of the plaintiff’s voice she recorded on her equipment. The Institute was not granted permission to transfer the data to any other person or entity for later use.
Bytedance, Inc. and Bytedance E- Commerce Inc. doing business as TikTok (the “Defendants”), provide social networking services and a social medium platform. The services are used to make short-form videos of one minute in length or less. There are various features available through the platform, including the ability of a user to add a computer-generated voice that will play when the user’s videos are uploaded. The videos, including any computer-generated voice, are available for consumption by the millions of TikTok users worldwide.
In November of 2020, the plaintiff discovered that her electronic voice files had been acquired by the Defendants, using her voice as the female computer-generated voice of TikTok. The plaintiff did not consent to such use of her voice.
The Action
The plaintiff instituted a civil action in the United States District Court for the Southern District of New York. The plaintiff alleges copyright infringement and breach of her right to publicity and the other claims relating to unfair competition.
Comments concerning the Canadian law relating to the claims follow.
The Copyright Act
Under the Canadian Copyright Act, the maker of a sound recording is entitled to a copyright in the recording consisting of the sole right to do the following about the recording or a substantial part of it: to publish it for the first time, to reproduce it in any material form and to rent it out and to authorize such acts. In addition, the sound recording maker’s copyright includes the right to make it available to the public by telecommunication and other rights relating to the transfer of ownership if the sound recording is in the form of a tangible object.
The maker of a sound recording is the person by whom the arrangements necessary for the first fixation of the sounds are undertaken. Thus, the maker is the first owner of the copyright in the sound recording. “Undertake” means to be responsible for, in a financial sense and generally. Usually, the maker will have made a financial contribution to produce the recording and not necessarily a creative or technical contribution.
It is clear from the definition of “sound recording” that the underlying work need not be the subject of copyright. However, the underlying work may be protected by copyright under the Act. In this case, only the copyright owner may make or authorize the making of a sound recording.
The plaintiff asserts that the stylization and artistic nature of the work contained in the voice files are sufficiently original to be protected by copyright. In addition, she asserts that since the voice files were recorded on her equipment, she is the owner of the copyright subsisting in the sound recordings. Therefore, since the Defendants have apparently reproduced the voice files, they have engaged in copyright infringement.
The Right of Publicity
In Canada, the right of publicity is protected through the tort of appropriation of personality. Usually, the tort is restricted to endorsement-type situations such as where there is an implication that a celebrity was endorsing a defendant’s business or products. However, the complete scope of this tort has yet to be fully defined by the courts.
In this case, the plaintiff alleges that the Defendants have conveyed the false and misleading representation to the public that the plaintiff endorses, sponsors or approves the Defendants’ services or is affiliated with the Defendants.
Comment
The Defendants ceased to use the plaintiff’s voice in response to her action. Therefore, how the lawsuit will be decided remains to be seen.
It seems odd that anyone would pay for voice-over services without having a written contract to set out a clear understanding of how the resulting voice files could be used and who would be the owner of the applicable copyrights.
If you have questions, don't hesitate to get in touch with me at mckeown@gsnh.com.
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These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
A version of this article originally appeared in the Lawyer’s Daily published by LexisNexis Canada Inc.