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 1. Asia IP
 2. Section
 3. IP Analysts


FROM FAME TO FRAME: HOW CAN PERSONALITY RIGHTS BE SECURED AGAINST AI MISUSE?

30 October 2024





In the age of artificial intelligence, where digital simulations can replicate
human likenesses with startling accuracy, protecting personality rights has
become very crucial. As AI-powered technologies enable the cloning of faces,
voices, and unique characteristics with simple processes, celebrities are
vulnerable to unauthorized use and misrepresentation of their identity.
Uncertainties about adequate protections may lead people to face potential
exploitation and loss of control over their personal attributes, which can
impact their privacy, reputation, and economic interests. Strengthening
personality rights is essential to safeguard individuals against unauthorized AI
recreations and to ensure that personal identity remains under the individual’s
rightful control in this digital era. 

The concept of personality or celebrity is often context-specific, resonating
uniquely within certain groups or cultural circles. Statutes worldwide try to
protect celebrity rights by safeguarding elements intrinsically tied to their
persona, such as names, likenesses, and distinctive traits. One of the leading
legal frameworks regulating using a person’s identity in AI-generated content is
the right to publicity. While some jurisdictions have laws protecting the right
of publicity, most rely on common law. Even though the right of publicity offers
some protection against unauthorized AI-generated content, the definition of a
person's “persona” in this context is still unclear. Courts may also need to
look into the question of “transformative use” with a different lens when AI can
accurately replicate an individual's identity. 

With the advent of powerful generative AI tools, utilization of identities of
celebrities may generally happen in four ways: 

 1. Images, videos and sound recordings of real individuals may be used as
    training data.  

 2. People’s names and other identifiable details can serve as prompts. 

 3. Generative AI outputs may include, replicate or evoke individuals’ names,
    likenesses, voices or performances; and  

 4. People’s identities or performances may be leveraged to promote or market AI
    platforms. 

Considering defences such as newsworthiness and public interest along with the
interpretation of text and data mining exemptions applicable for AI training may
create a hurdle for celebrities in effectively controlling the unauthorized use
of their personality rights in the AI development realm. In addition, defining
“persona” and “transformative use” in AI, where technology can flawlessly mimic
an individual’s identity, may blur the lines between permissible inspiration and
infringing output replication.  

Another hurdle is balancing personality rights with copyright law, as AI often
utilizes copyrighted works. In contrast, copyright law allows for derivative
works, potentially leading to conflicts in the grey area. Further, considering
moral rights associated with a celebrity will add complexity to such questions.
In addition, concepts of free speech exceptions when the question on AI and the
rights of celebrities is considered is yet to be tested in detail before a court
of law. 

The potential of AI to disrupt the movie industry became evident during the 2023
SAG-AFTRA strike. This highlighted severe concerns around the unauthorized use
of personality attributes, which poses ethical and commercial challenges. Though
recent deals between advertisers and celebrities offer a temporary solution,
such contractual arrangements may only sometimes effectively address the broader
underlying issues. This highlights the need for more robust, long-term
frameworks to govern AI’s role in creative industries.  

Even though jurisprudence on this subject is nascent, Indian courts have
considered such questions and provided protection against the misappropriation
of personality rights with the help of AI. In Vishnu Manchu v Arebumdum & Ors.,
the Delhi High Court took serious note of the fact that AI is enabling illegal
and unauthorized users to use, produce or imitate a celebrity’s persona. The
court stated that it could not turn a blind eye to such misuse and restricted
the same.  

In Arijit Singh v. Codible Ventures LLP and Ors., the plaintiff, a famous Indian
singer, sued defendants who were using AI to clone his voice and create content
that mimicked his singing style. The Bombay High Court determined that offering
AI voice conversion tools to the public without the plaintiff's consent violated
his personality rights. The court observed that these tools enabled the
unauthorized use and manipulation of the singer’s voice, allowing others to
profit from his popularity and potentially harm his career. The court also noted
the risk of these tools being misused for illegal purposes and issued an
injunction preventing the defendants from infringing on the plaintiff’s
rights.  

In Jaikishan Kakubhai Saraf v. Peppy Store, the Delhi High Court issued an
interim injunction against defendants who used AI to create a chatbot that
imitated a well-known Bollywood actor. The court found the AI chatbot unlawful
because it was designed to mimic the actor's distinctive personality traits. In
Anil Kapoor v. Simply Life India & Ors., another renowned Bollywood actor sued
defendants who utilized AI to create deepfakes, including pornographic content.
Some defendants used a generative AI tool to depict the plaintiff cartoonishly,
while others used his image and persona to sell merchandise. The Delhi High
Court recognized that creating deepfakes without authorization violated the
plaintiff's personality rights, causing reputational damage and loss of
endorsement opportunities. The court acknowledged the importance of free speech
but highlighted that it should not infringe upon an individual's rights,
including livelihood, privacy, and dignity. 

Further, Amitabh Bachchan v. Rajat Nagi, the famous actor filed a lawsuit
against individuals using his name, image, and voice in a lottery scam. The
Delhi High Court issued a comprehensive order protecting the plaintiff’s
personality rights, effectively prohibiting any use of his traits in AI systems,
including deepfakes, without his permission. Such an order has assisted the
plaintiff in acting at a further point against the circulation of his
deepfakes. 

Similarly, Chinese courts have also found that using a person’s voice in an AI
text-to-speech application without authorization violates personality rights. 

A multi-pronged approach is crucial to safeguarding personality rights in the
age of AI. This includes implementing robust data privacy laws, establishing
clear ethical guidelines for AI use, and enacting legislation that protects
personality rights, including adequate control over commercial use. The legal
framework surrounding AI technologies needs to evolve to keep pace with
advancements and ensure AI’s responsible and ethical use while protecting
individual rights.  



--------------------------------------------------------------------------------


ABOUT THE AUTHOR


VAISHALI R. MITTAL



Vaishali R. Mittal is a litigation partner and strategist at Anand and Anand.
Mittal has been engaged as a lead in many firsts and also some of India’s most
ground-breaking IP matters, including a case protecting personality rights of
Bollywood actor Anil Kapoor against any misuse including by use of generative AI
and dark patterns (Anil Kapoor v. Simply Life); India’s first judgment on
product-by-process patent claims (Vifor International v. MSN Labs & Ors);
India’s first pro tem security order (Nokia v. Oppo); the Aaradhya Bachchan fake
news matter; India’s first anti-anti suit injunction; India’s first final
judgment on standard essential patents; and an order directing an implementer to
deposit pro tem security in favour of an owner of standard essential patent(s),
before determination of infringement, validity etc. (InterDigital v. Oppo
(2022-24); Nokia v. Oppo (2022)). Mittal has been consistently recognized as a
leader in intellectual property by some of the most prestigious bench-marking
tables.  




ALVIN ANTONY



Alvin Antony is an associate at Anand and Anand working in the digital tech and
law domain. He is an active part of the team working on policy decisions and
governance frameworks in relation to new-age technologies, such as artificial
intelligence, besides assisting with extensive research prior to providing
startups and industrial bodies with definite frameworks to handle new age tech.
He was involved in various projects where the firm supported the creation of
frameworks on AI, including the Developer's Playbook for Responsible AI in
India, released by NASSCOM.

Antony brings with him experience in handling trademark litigation focused on
fashion, pharmaceuticals, and domain names, besides being involved in
trademark prosecution and oppositions. He has authored several articles on IP
rights, AI and frontier technology in different national and international
publications. He frequently speaks on IP and AI at various platforms and
provides support to capacity building on the subject. Alongside professional
engagements, Antony has been actively involved in technology and IP literacy,
spreading awareness among diverse audiences.

A graduate of National Law University, Jodhpur, Antony also holds a PG Diploma
in Cyber Law from the National Academy of Legal Studies & Research University,
Hyderabad. Antony is also a certified ISO 42001:2023 (AI Management Systems)
standard auditor.




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 * Rahul Chaudhry & Partners
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 * ZeusIP


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