Lehrman v. Lovo Inc.

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. 

Summary prepared by David Grossman and Alex Loh