Greene v. Google LLC

District court grants plaintiff’s motion to remand his voice misappropriation suit to California state court, holding that his state-law claims target “output” of Google’s AI product (an alleged imitation of his voice) rather than “input” (copying of his copyrighted recordings) and are not preempted by Copyright Act because voice is not copyrightable subject matter

Plaintiff David Greene, a well-known radio and podcast personality who hosted and moderated several NPR programs reaching millions of listeners, filed suit against Google LLC and Alphabet Inc. in California state court, asserting four state-law causes of action related to Google’s NotebookLM, an AI podcasting product released in July 2023 that allows customers to upload a folder of content and generate an AI-narrated podcast. Greene, who has no business relationship with Google or NotebookLM, alleges that he learned from journalists and users that Google was using his voice. Specifically, Greene alleges that the default male AI host of NotebookLM, known as “Charlie,” “exhibits the same sound, tone, cadence, and mannerisms” as Greene. Greene’s complaint, filed in California state court, alleges that Google used his voice without authorization and used “those stolen copies” to develop, train and refine NotebookLM. Greene further alleges that regardless of the exact technical means, Google deliberately made Charlie sound substantially similar to Greene such that ordinary listeners would reasonably believe the voice was his.

Greene asserted four state-law causes of action: (1) statutory right of publicity under California Civil Code Section 3344, based on Google’s use of his voice and likeness for commercial benefit; (2) unfair competition under California Business and Professions Code Section 17200, based on Google’s failure to disclose that Charlie’s voice was engineered to imitate Greene’s voice; (3) common-law right of publicity, based on Google’s exploitation of a core attribute of his identity (his distinctive voice); and (4) unjust enrichment/quasi-contract, based on Google’s exploitation of the commercial value of his distinctive voice and persona. Google removed the case to federal court, arguing that Greene’s claims are preempted by the Copyright Act because they are premised on Google’s copying of Greene’s sound recordings. Google also moved to dismiss, arguing that absent preemption, Greene failed to state a claim. Greene moved to remand, arguing that his claims fall outside the scope of copyright because they concern use of his voice, not copying.

The court first acknowledged the legal standard for removal under 28 U.S.C. Section 1441(a), noting both that the Ninth Circuit strictly construes the statute against removal and that there is a “strong presumption” against removal, placing the burden on the defendant and resolving ambiguity in favor of remand. The court then applied the Ninth Circuit’s two-part copyright preemption test, which asks (1) whether the subject matter of the state-law claim falls within the subject matter of the Copyright Act and (2) whether the rights asserted under state law are equivalent to the exclusive rights under 17 U.S.C. Section 106. Both elements must be satisfied for preemption to apply.

On the subject-matter analysis, the court acknowledged that the basis of a claim need not itself be copyrightable to fall within the subject matter of the Copyright Act, but emphasized that the “crucial difference” is whether the basis of the misappropriation claim is the copyrightable subject matter itself. The court relied on Midler v. Ford Motor Co., in which the Ninth Circuit held that a distinctive voice is “more personal than any work of authorship” and thus not copyrightable, such that mere imitation of a recorded performance is not copyright infringement. The court found that Greene’s claims are fundamentally about NotebookLM’s outputs—misappropriation of his voice, likeness and identity—not its inputs, and that each of his four claims is premised on misappropriation of voice or identity rather than on any reproduction of a specific fixed recording.

The court distinguished Greene’s case from others in which the misappropriation claims were wholly based on reproduction or distribution of a fixed, copyrighted recording. Unlike those cases, Greene’s claims rest on Charlie’s voice being “substantially similar” to Greene’s actual voice generally, not on reproduction of any specific fixed recording. The court noted that because a voice, unlike a particular vocal performance, is not “fixed,” a medium cannot contain the “entirety” of it. The court also rejected Google’s argument that Midler does not apply, because that case involved a human “sound alike” performer rather than AI, concluding that Midler’s holding is grounded in voice imitation generally and is not limited to human imitators. The court observed that “Greene’s voice misappropriation claims are just like those in Midler, but with AI rather than a voice actor."

The court also applied the well-pleaded complaint rule, noting that a plaintiff is “free to selectively plead claims to avoid federal court jurisdiction.” Greene’s claims center on voice misappropriation, with any alleged copying merely a means for carrying out that misappropriation. Because Google did not meet its burden of showing that Greene’s claims fall within the first element of the copyright preemption test, the court did not reach the second element. In granting the motion to remand, the court did not reach Google’s pending motion to dismiss.

Summary prepared by Safia Gray Hussain and Chloe Gordils