Guardians of Stardoms: Navigating the Complex Terrain of Personality Rights

Read the part 1 here: https://www.theippress.com/wp-admin/post.php?post=5816&action=edit

PART 2

The second part delves into the challenges AI presents to celebrities, artists, and lookalikes. It discusses the use of AI to clone and replicate personas, voices, and likenesses without consent, leading to issues of ownership and unauthorized commercial exploitation. The blog also explores the legal aspects of personality rights in India, where legislative recognition is still evolving. It discusses relevant sections of intellectual property rights laws and how they pertain to personality rights. The research highlights the need for a comprehensive legal framework for personality rights in India.

Traversing the legal angles  

The genesis of privacy rights stemming from the acknowledgment of individuality and shielding it against unwarranted intrusion can be traced back to European jurisprudence. The evolution of this sacrosanct Right found fertile ground in establishing a legal sanctuary safeguarding the individuals against physical encroachment upon their persona and property. With the advent of the printed press and the inexorable technology, the exigency for a fundamental right to be left undisturbed burgeoned, giving rise to the intertwined Right of publicity.  

In 1960, in a seminal treatise, William Lloyd Prosser expounded upon the doctrinal foundations laid by Justice Brandeis and Mr. Warren, thereby advancing the jurisprudential postulates for the recognition of the Right to Privacy. In his magnum opus, Professor categorically delineated four distinct classifications of privacy torts:  

  1. Intrusion upon the Plaintiff’s seclusion or solitude or encroachment into their private affairs; 
  2. Public disclosure of confidential and humiliating details concerning the plaintiff; 
  3. Dissemination of information that casts the Plaintiff in a false light in the public eye; and 
  4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. 

It is imperative to underscore that the first three categories are unequivocally deemed transgressions against the sacrosanct Right to privacy. In contrast, the fourth category constitutes a claim under the Right to publicity. [1] 

In 1907, the first Court to deliver a judgment on the Right to publicity as an integral facet of privacy emanated from the New Jersey Chancery Court. However, the term ‘Right of publicity’ had embryonic usage in the subsequent judgment of Healan Laboratories Inc. v. Topps Chewing Gum Inc.  

The IPR laws could be utilized as an indirect reference as there is no proper framework for the violation of such personality rights as: 

  • The Indian Copyright Act, 1957 

The Act does not specify or define ‘personalities’ or ‘celebrities.’ The Madras High Court, in the case of Shivaji Rao Gaikwad v. Varsha Productions [2](2015), held that while there is no definition of ‘personality rights’ under any legislation in India, Courts in India have recognized the same in various judgments. The Delhi High Court, in the matter of Titan Industries Ltd. v. Ramkumar Jewelers[3], provided a comprehensive definition of a celebrity as “a famous or well-known person, someone whom ‘many’ people discuss or recognize.” Moreover, the Court expounded that the Right to regulate the commercial use of human identity constitutes the Right to publicity.  

Nevertheless, The Act defines the term ‘performer’ under Section 2(qq)[4] as encompassing individuals who exhibit their artistic creations, including but not limited to actors, singers, vocalists, dancers, gymnasts, jugglers, conjurers, snake charmers, as well as those persons delivering a lecture. Hence, a celebrity or a famous person can be subsumed within the purview of a ‘performer’ and thus stand entitled to the commensurate rights accorded under the auspices of the Act. Furthermore, Section 38A of the Copyright Act [5]expounds upon the sacrosanct ‘performer’s right,’ stipulating 50 years, commencing from the calendar year after the performance was consummated. This provision carries profound significance, as it confers upon the performer a vital proprietary right, thereby proscribing any unauthorized endeavors involving the creation of sound or visual recordings of the performance, the reproduction thereof in any tangible form, or the dissemination of the performance via broadcast or public communication, without the explicit and unimpeachable consent of the performer.

  • Trademarks Act of 1999 

The Indian trademark law lacks explicit provisions for safeguarding persona-related rights, such as images and gestures. However, it is worth noting that Section 2(m) [6]of the law encompasses the term “names” within its definition of a “mark.” Consequently, some well-known Indian figures, such as Baba Ramdev and Kajol, have chosen to utilize trademark protection to prevent the unauthorized use of their names. 

Section 14[7] of the Trade Mark Acts encompasses provisions that pertain to the utilization of the name or likeness of a living individual or a deceased person. The statutory framework enshrined within Section 14 serves as a regulatory mechanism, firmly curtailing assertions or representations that could deceitfully insinuate an affiliation with any living person or an individual whose demise occurred within the preceding two decades from the date of the application for the contested trademark. 

In a separate judicial pronouncement emanating from the distinguished Madras High Court in the case of Makkal Tholai Thodarpu Kuzhumam Ltd. v. Mrs. V. Muthulakshmi[8], the Hon’ble Court delved into a comprehensive examination of the Right to privacy and connected subjects, particularly in the context of the notorious bandit Veerappan, who met his demise at the hands of law enforcement agents in the year 2004. Notwithstanding, the Court diligently safeguarded the legal interests of the decedent’s next of kin. The Court’s ruling emphatically conveyed that the revision petitioner remains proscribed from broadcasting any information pertaining to the plaintiff’s private life while transmitting a television series. The Court’s mandate further clarified that the content of the television series must exclusively rely upon publicly accessible records and information. 

Challenges AI poses to celebrities, artists and lookalikes 

AI has ushered in a new era introducing a novel dimension to the myriad challenges faced by the individuals seeking to safeguard their personality rights. With the advent of deepfakes, generative AI, and other technologies it has made it easier to clone and replicate celebrities’ personas, voices, and likenesses without their consent, leading to issues of ownership and unauthorized commercial exploitation. These challenges are not limited to the entertainment industry, as AI-generated content can affect individuals from various domains. 

Last year, A Bruce Willis impersonator assists in defusing a bomb in a commercial that Russian telecommunications provider MegaFon produced. Elon Musk recently appeared in what appeared to be a promotional film for real estate investment venture reAlpha Tech Corp. And just last month, talking doppelgangers of actors Tom Cruise and Leonardo DiCaprio appeared in a promotional video for the machine-learning company Paperspace Co. None of these stars ever spent a single second filming these ads. Mr. Musk, Mr. Cruise, and Mr. DiCaprio never even committed to support the companies in question. 

There is no industry that artificial intelligence (AI) hasn’t affected. This time, the entertainment sector is being affected, and not always in a positive way. Deep-fake films, 3D-generated lifelike models, and AI-generated voices are interacting with real actors and raising ownership issues. How is AI affecting the entertainment industry, and will it replace actors? 

  • ‘Disturbing’ Technology 

Artificial intelligence is being utilized to digitally clone living performers or bring deceased actors back to life using sophisticated 3D body scans. 

For instance, artificial intelligence was employed to reproduce the late star Robin Williams’ voice. In another instance, Amarjit Singh, a software programmer based in the US, shared AI-generated tunes from the late Sidhu Moosewala and KK last year.  

  • Issues of ownership 

When AI is used to “copy” a live performer, ownership issues become more evident. The Delhi High Court in the case of Anil Kapoor v. Simply Life India & Others[9], ordered 16 organizations to stop violating Anil Kapoor’s personality rights in September. The entities were accused of using artificial intelligence (AI) to inappropriately profit by using Kapoor’s name, voice, likeness, or other aspects of his persona. 

Amitabh Bachchan experienced a similar problem when lottery operators and mobile app developers utilized his voice and image to gain monetary benefits.  

  • Exploitation of Personality 

The deployment of deepfakes and generative AI, artificial intelligence has precipitated an alarming acceleration in the exploitation of celebrity personas for financial gain and fraud. In order to make money for the developers, deep fakes are employed to portray performers as the opposite sex. These videos receive millions of views, which is advantageous for their creators. Additionally, this technology is used to fabricate explicit content featuring well- known figures, further exacerbating the ethical and legal quandaries surrounding AI’s impact on the rights of public personalities.  

Conversely, generative AI creates material using a celebrity’s likeness, voice, and photos without their explicit consent. Subsequently, this content is disseminated online, generating revenue through millions of views and interactions. Notably, the line between legitimate use and infringement becomes increasingly blurred in this context. 

A famous instance of moment marketing in the recent past that went wrong led Baseline Ventures, the official representative of Olympian P.V. Sindhu, to file a lawsuit against nearly 20 corporations. This came about after sponsors congratulated her on her historic bronze medal win at the 2020 Summer Olympics in Tokyo on their social media channels. The congratulatory messages were considered to have violated P.V. Sindhu’s rights by utilizing her name and images in a way that could unfairly benefit a commercial entity by creating a false association between the brand and the athlete. It’s important to note that Celebrity Rights can be transferred or licensed, which is the basis on which Baseline Ventures could legally represent P.V. Sindhu in this matter. Additionally, celebrities have the ability to endorse products and partner with brands, allowing the brand to leverage their reputation and personality as the prominent “ambassador” for the brand.  

Conclusion

In conclusion, the terrain of personality rights, particularly in the age of AI, is an intricate and evolving landscape that poses multifaceted challenges to artists, celebrities, and lookalikes. In India, the recognition of personality rights must still be legislatively well-defined. However, it finds its roots in various facets of Intellectual Property Rights, especially regarding the rights of performers, celebrities, or famous personalities. Generative AI, a subset of artificial intelligence, poses a significant threat to human talent, particularly in the entertainment industry. Governments and industry associations can develop and enforce regulations that govern AI-generated content. Ethical guidelines for using AI in creative fields can help ensure responsible and fair practices. These guidelines can address issues such as attribution, consent, and transparency in creating and using AI-generated content. Training programs and educational initiatives can help creative professionals acquire skills that complement AI technologies. Raising public awareness about AI’s role in creative industries and its potential consequences can lead to informed consumer choices.  

In navigating this complex terrain, legal systems worldwide must adapt and evolve to protect the rights and interests of individuals, particularly in the face of advancing AI technologies. The balance between artistic expression, technological innovation, and individual rights must be carefully maintained to ensure a fair and equitable future for all stakeholders in entertainment and beyond. Ongoing research and innovation in AI and creative technologies can lead to the development of tools that empower human artists and creators rather than replace them altogether. 


[1] Samarth Krishan Luthra & Vasundhara Bakhru, Publicity Rights and the Right to privacy in India, 3, NLSIUR 125 (2019)

[2] Shivaji Rao Gaikwad v. Varsha Productions, 2015 (62) PTC 351 (Madras)

[3] Titan Industries Ltd. v. Ramkumar Jewelers, 2012 (50) PTC 486 (Del)

[4] The Copyright (Amendment) Act, 1992, No. 13, Acts of Parliament, 1992 (India)

[5] Ibid

[6] The Trade Marks Act, 1999, No. 47, Acts of Parliament, 1999 (India)

[7] Ibid

[8] Makkal Tholai Thodarpu Kuzhumam Ltd. v. Mrs. V. Muthulakshmi, (2007) 6 MLJ 1152

[9] Anil Kapoor v. Simply Life India & Others, 2023 LiveLaw (Del) 857

Shreya Gupta

Author

Shreya Gupta is 3rd year student pursuing BA. LLB. (H.) from NLU, Sonepat. In her pursuit of diverse knowledge, she has a keen interest in various laws such as IPR, IBC, Dispute Resolution, etc. Her passion for the law extends to her involvement in writing, research and attending various seminars. 

Anant Gupta

Author

Anant Gupta is a 3rd year B.A. LL.B. (Hons.) student at DNLU, Jabalpur His interest areas align with Intellectual Property Law, Corporate Law and Dispute resolution. Alongside his legal interests, he is also a keen learner, an avid reader and an experienced writer.

About Shreya Gupta 3 Articles
Shreya Gupta is 3rd year student pursuing BA. LLB. (H.) from NLU, Sonepat. In her pursuit of diverse knowledge, she has a keen interest in various laws such as IPR, IBC, Dispute Resolution, etc. Her passion for the law extends to her involvement in writing, research and attending various seminars.

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