Description of the Article:
Several steps are required to remedy the gaps in India’s personality rights legislation. First and foremost, defining “celebrity” legally is crucial to determining who is granted personality rights. Secondly, to safeguard the business interests of the estates of deceased celebrities, special rules pertaining to posthumous personality rights had to be included. To ensure that people’s identities are shielded from illicit use, strict restrictions are required to control the application of AI in personality replication. India can fortify its system of intellectual property laws and offer complete protection for personality rights in the digital era by tackling these problems.
Introduction
Individuals, are granted the right to manage how their identity, including characteristics like voice, style, name, likeness, and image, is used for commercial purposes. This is known as personality rights. The International Trademark Association defines the right of publicity as follows: The right of publicity is an intellectual property right that protects against the misappropriation of a person’s name, likeness or other indicia of personal identity such as nickname, pseudonym, voice, signature, likeness, or photograph for commercial benefit and privacy are acknowledged as aspects of personality rights in India. This right forbids unauthorized meddling in the personal affairs of celebrities. However, India lacks a strong intellectual property law system, and the growing use of AI techniques in marketing and film undermines people’s right to privacy.
- Celebrity’s Definition:
There are major three lacunas in personality right Firstly the Definition/meaning of Celebrity/performer in India currently there is no legislation that defines the term celebrity but in this case of A celebrity is defined as a famous or well-known person. A ‘celebrity’ is merely a person who ‘many’ people talk about or know about[1]. although the term for a performer is defined As per Section 2(qq) of the Copyright Act, a performer is defined to include an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture, or any other person making a visual or acoustic live presentation. And another Section 2(q) of the Indian Copyright Act defines a “performance” as “‘performance’ in relation to the performer’s right. made live by one or more performers.”
Now, the scope of this section is very wide; it includes a large chunk of the population. There is no clear-cut demarcation between who should be considered a celebrity. If we go by this section’s definition, it includes a street performer, social media influencers, people who performed on stage, theatre artists, etc. If this is the case, anybody can claim their personality rights over anything. Questions concerning the limitation of personality rights and the rightful holders of such rights are brought up by the Indian Copyright Act’s definition of “performance.” It makes it harder to distinguish between people who are generally considered celebrities and others who might not meet this criterion. In the age of social media, where anyone can show off their talent, The broad scope of this definition of the performer can lead to a potential dispute and challenges in determining the extent of protection for performers. Individuals need to understand their rights and obligations under this section to avoid any ambiguity and confusion in the future.
In the traditional definition of a celebrity, an individual who may not fit in still has valuable rights to protect. By understanding the legal restrictions surrounding performance rights, individuals can better protect their creative work and prevent unauthorized use or exploitation. Performers can also avoid issues or disagreements in the profession by using this expertise.
- Posthumous personality rights:
Second discrepancy in the Posthumous personality rights per se sui-generis rights in India. Posthumous personality rights still evolving and relatively new.There is no provision in the Indian Copyright Act for Posthumous personality rights, but In Section 14 Trade Mark Act,1999 refers to the posthumous use of names and likeness. Any application for trademark registration that falsely suggests a connection with a living person or a person whose death took place within twenty years prior to the date of application must seek prior consent from such person or legal representatives of the deceased person.
Personality rights continue to be important even after death; nevertheless, post-mortem rights are not adequately covered by the existing framework, creating a sizable legal vacuum. When a celebrity’s name, image, or likeness is used for commercial gain or is harmed, it is very clear that the family or estate of the departed has no legal remedy.
the general rule was that death of either party extinguished any cause of action in tort by one against the other. This was expressed by the maxim of ‘actio personalis moritur cum persona’[2] which states that – a personal right of action dies with the person.
in MD, Makkal Tholai Thodarpu Kuzhumam Ltd. v. V. Muthulakshmi[3], that the right to privacy of an individual was not heritable, after his death, by his legal heirs. Clearly, a person’s reputation or privacy that they have built up over their lifetime disappears with death. The reputation one has built up over their lifetime is not transferable to their legal successors, unlike tangible or intangible property. After a person’s life, they lose whatever personality rights, reputation, or privacy that they may have enjoyed. Therefore, we are of the opinion that “posthumous right” is not an “alienable right”[4]
- AI and Deepfakes:
The creative industries have transformed, with music, art, and content production drastically transformed by the swift progress of generative artificial intelligence (AI). With relation to intellectual property rights in particular, this has brought up ethical and legal concerns. ‘Personality rights’ are the newest item on this list; their ownership, ethical licensing arrangements, and copyright infringement are all up for controversy
The growing popularity of generative AI (GAI) software has raised concerns about the creative expression of their persona. AI can create near-perfect replicas of a celebrity’s persona, substitute for an author’s persona, and create content that is difficult for consumers to differentiate from official appearances or endorsements.
Actor Anil Kapoor of India has requested that his name, voice, demeanor, signature, and other personal characteristics not be used by unapproved parties. The court decided that illicit users can create or mimic celebrity personas using contemporary technology capabilities, such as artificial intelligence. The defendants were prohibited by the court from using AK’s persona for merchandise, ringtones, or commercial endeavors. Additionally, they were forbidden from using these characteristics for financial benefit or commercial gain[5]. The domains http://www.Anilkapoor.com, http://www.anilkapoor.in, and http://www.anilkapoor.net were instructed to be blocked and suspended by domain registrars.
Tom Hanks warned his followers on Instagram about an AI-generated version of him[6] used in an advertisement. With AI technology becoming increasingly mature, Hollywood actors are concerned that the use of AI in generating unapproved likenesses strikes at the root of their career and earnings. The concern around AI-generated deep-fakes has led world leaders, policymakers, and law enforcement to echo the dangers of the technology and sound the alarm that the space must be regulated. In the similar instances “Sky,” the Chat GPT voice assistant from Open AI[7], has caused criticism due to her voice striking similarities to Scarlett Johansson’s from the movie “Her.” OpenAI, a legal idea that gives people autonomy of their image or voice, was accused by Johansson of making money off of her voice. OpenAI said it was coincidence that they couldn’t replicate Johansson’s voice. Clear boundaries and openness in AI development are essential, as demonstrated by the Johansson-OpenAI case, which concerns speech data management by AI businesses.
Who owns the rights to the works created by GAI? GAI systems are trained on scores of prior works, raising questions about ownership and authorship. Most IP offices are currently refusing protection to AI-generated works, though the artist may have argued that the system was part of the creative process.
To tackle this issue The ELVIS Act[8], inspired by the Elvis Presley estate’s fight for control over his image, amends the Tennessee Personal Rights Protection Act to include “voice” as a protected aspect of likeness. It establishes civil and criminal penalties for unauthorized use of an artist’s voice and includes exemptions for fair use under copyright law. The Act sets a precedent for other states and the federal government to regulate AI use in relation to artistic expression. However, its effectiveness depends on enforcement and determining unauthorized use.
Conclusion:
The relationship between AI and personality rights is complicated because posthumous rights are not taken into consideration and celebrity eligibility is not clearly outlined in India’s legal framework. With celebrities like Anil Kapoor and Tom Hanks having problems with unapproved use of their likenesses, the emergence of AI and deepfake technologies threatens both business interests and privacy. Inspired by the image rights of Elvis Presley, the ELVIS Act establishes a standard for controlling the use of AI and safeguarding the rights of artists. A balanced strategy that strikes a balance between legal protections for people’s identities and creative expressions and technical innovation is necessary to address the convergence of personality rights and AI. In a developing digital landscape, protecting the interests of celebrities and artists requires effective regulation, enforcement measures, and a commitment to maintaining privacy and intellectual property rights.
Author : Shashank Soni, a Student at Christ University, Delhi NCR, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD
Other references:
Indulia, B. and Ridhi, k (2023) Beyond the grave: Exploring the legality of posthumous publicity rights, SCC Times. Available at: https://www.scconline.com/blog/post/2023/10/24/beyond-the-grave-exploring-the-legality-of-posthumous-publicity-rights/#fn46 (Accessed: 22 May 2024).
N, M. (2024) ‘Need for a Comprehensive Indian Law Regulating Personality Rights’, INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES, 7(2). doi:https://doij.org/10.10000/IJLMH.117006.
Ahmad, T. and Ranjan Swain, S. (2010) ‘Celebrity Rights: Protection under IP Laws’, Journal of Intellectual Property Rights, 16, pp. 7–11. Available at: https://docs.manupatra.in/newsline/articles/Upload/78DD5FE8-5C07-4075-934D-6917CD6BE868.pdf (Accessed: 2024).
Praeek, A. and Majumdar, A. (2006) ‘Protection of celebrity rights- The Problems and The Solutions’, Journal of Intellectual Property Rights, pp. 415–423. Available at: https://nopr.niscpr.res.in/bitstream/123456789/3605/1/JIPR%2011(6)%20415-423.pdf (Accessed: 22 May 2024).
[1] Titan Industries Ltd. v. Ramkumar Jewellers,2012 SCC OnLine Del 2382
[3] Makkal Tholai Thodarpu Kuzhumam Ltd. v. V. Muthulakshmi, (2007) 6 Mad LJ 1152
[4] Deepa Jayakumar v. A.L. Vijay, 2021 SCC OnLine Mad 2642
[5] Anil Kapoor vs. Simply Life India and Ors, CS(COMM) 652/2023
[6] Guardian, staff (2023) Tom Hanks says Ai version of him used in dental plan ad without his consent, The Guardian. Available at: https://www.theguardian.com/film/2023/oct/02/tom-hanks-dental-ad-ai-version-fake (Accessed: 23 May 2024).
[7] Dey, S. (2024) Scarlett Johansson vs openai: ‘her’ actor slams firm after Ai System’s voice resembles her own, Moneycontrol. Available at: https://www.moneycontrol.com/news/trends/current-affairs/scarlett-johansson-vs-openai-her-actor-slams-firm-after-ai-systems-voice-resembles-her-own-12728466.html (Accessed: 24 May 2024).
[8] Gupta, A. and Neipris, R. (2024) AI protection in Elvis Act Signals Dire Push for Federal Action, Bloomberg Law. Available at: https://news.bloomberglaw.com/us-law-week/ai-protection-in-elvis-act-signals-dire-push-for-federal-action (Accessed: 24 May 2024).
