Those aren't mutually exclusive: https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co. Also, https://arstechnica.com/tech-policy/2024/05/sky-voice-actor-...:
> The timeline may not matter as much as OpenAI may think, though. In the 1990s, Tom Waits cited Midler's case when he won a $2.6 million lawsuit after Frito-Lay hired a Waits impersonator to perform a song that "echoed the rhyming word play" of a Waits song in a Doritos commercial. Waits won his suit even though Frito-Lay never attempted to hire the singer before casting the soundalike.
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> The only claim she has is that someone who sounds like her will add value to their product more than if the person didn't sound like her. At which point the question is: how much value?
That may be relevant when damages are calculated, but I don't think that's relevant to the question of if OpenAI can impersonate her or not.
I suppose in this case the claim has to be something like: "They hired someone who sounds like my impersonation of a character in a film called Her".