Updated: Oct 5
The rapid advancement of generative artificial intelligence (AI) has opened a new realm of possibilities in the creative industry, reshaping how music, art, and other forms of content are produced. In the last year, the world has witnessed the most remarkable, borderline alarming, use of generative AI to replicate our favourite stars to perfection – in form and voice. However, this surge in AI creativity has not been without controversy, bringing to the forefront intricate legal and ethical dilemmas mostly centred around intellectual property rights. In the midst of hotly debated discussions on ownership, ethical licensing models and copyright infringement, the latest addition to that list has been ‘personality rights’.
Personality rights or celebrity rights is an individual’s legal entitlement to control the commercial use of their name, likeness, voice, and other distinctive attributes that define this individual’s talent, stardom or celebrity status. While laws surrounding personality rights vary by jurisdiction, they generally safeguard an individual’s image, reputation, and personal brand from unauthorized commercial exploitation.
Though personality rights are not explicitly recognized in India as a distinct category of intellectual property under statutory law like copyright or trademark, certain aspects of an individual’s persona, particularly their name, image, voice and likeness are protected, broadly under intellectual property and tort laws.
In what can be considered a major recent development, with reference to personality rights, copyright and the right to privacy in the context of AI, the Delhi High Court has issued injunctions against the defendants in Anil Kapoor v. Simply Life India & Others, preventing them from using the name, likeness and image of Mr. Anil Kapoor and even ordering for the suspension of certain domain names that were not authorised by the actor. This is perhaps also one of the first cases that categorically refers to the use of generative AI in the entertainment industry. The other equally high-profile observation on the monetisation of personality rights in the Indian context is yet another order by the Delhi High Court in Amitabh Bachchan v. Rajat Negi & Others which essentially stated that no third party can benefit monetarily from the use of a celebrity’s image, in this instance Mr. Amitabh Bachchan, without appropriate authorisation. However, neither of these cases have any clarity on the statute under which this protection would be granted under.
In this article, we attempt at exploring the nexus between Indian intellectual property law, the right to privacy and the intrinsic connection with personality rights, given the meteoric rise of generative AI and the tectonic shifts it has brought about in content creation.
Exploring Legal Angles
In India, “performers” are entitled to a certain set of rights under the Copyright Act, 1957, including moral rights and the right to performance royalties, apart from an exclusive right over their performance and how it can be used. These rights are typically licensed or assigned to a production studio or record label. In the context of using AI to create performances by recreating the likeness of an individual – for commercial use or otherwise, there might be room to argue that it could be infringing the aforesaid rights, unless those rights have been appropriately licensed for such use.
It is crucial to add here that, currently, industry practices in India, across disciplines, mandate that performers assign all rights in their performances to the commissioning entity in perpetuity and across all media / formats – giving the latter complete ownership and control over these performances. This would technically permit the commissioning entity, i.e. the production houses, the record labels, to exploit the performances to create new content – including through the use of generative AI. For example, if Ms. X has recorded an album with a music label, assigning her vocal performances in the album to the said label as per industry practice, the label can use generative AI to create new material using the voice and likeness of Ms. X and even distribute the same without further compensating Ms. X. Adding to the fairly long list of woes in this regard, today, the market has been inundated with tools that use generative AI to replicate the voices of popular singers, including artists who are no longer alive like Elvis Presley, Kishore Kumar and John Lennon. The use of such tools to create new material could be potentially infringing or even violating moral rights of these singers, in addition to any ethical concerns. However, there has been an increase in awareness, specifically in the film industry, with performing artists i.e. actors, being particular about the extent to which their name or likeness can be used and even setting restrictions for such use in their contracts.
The other legal angle to unauthorised use of personality rights through generative AI is the concept of ‘passing off’. Indian courts have recognized the tort of “passing off”, to prevent the unauthorized use of a person’s name, image, or likeness to deceive the public into believing a false association with that individual. Courts have also recognized the broader principle of “unjust enrichment” which could apply to instances where an individual’s personality attributes are exploited for commercial gain without proper authorization – a principle also captured under the guidelines issued by the Advertising Standards Council of India (ASCI) and applicable to the advertising & marketing industry.
One of the major points of contention in the ongoing strike in Hollywood by two of the most powerful guilds representing talent, the Writers Guild of America (WGA) and the Screen Actors Guild–American Federation of Television and Radio Artists (SAG-AFTRA), is the use of AI in generating scripts and replicating performances in the absence of a performing artist – voice or acting. Understandably, this has massive revenue implications for the striking parties who were in any case negotiating better wages for their services. The studios can very well choose to reduce the dependence on real-life talent and rely on generative AI to fill in, unless there are restrictions on the extent to which AI can be used to replicate services, including performances.
On a widely different note and perhaps in the vein of “if you cannot beat them, join them”, there is the example of the artist, Grimes, who ventured into uncharted territories by embracing generative AI in her artistic process. In a viral pilot program, she permitted other artists to transform their own voice samples to sound like hers, through a software called Elf.Tech. Elf.Tech produces music using a generative AI music operating system developed by CreateSafe (an online platform for artist management), which trained the AI with Grimes’ voice. These “transformed” voice samples could then be used by the artists in their original songs, provided that Grimes approved of the collaboration, was credited as the performing artist and given 50% of the royalties. While this synergy between human creativity and AI innovation presents remarkable opportunities for artistic evolution, it simultaneously raises intricate questions about authorship and ownership.
The intersection of generative AI and personality rights presents a compelling tableau of innovation, challenges, and opportunities within the creative industry. As technology, including generative AI, continues to evolve, the application of personality rights becomes more complex, raising questions about how these rights apply to AI-generated content and collaborations. Striking a balance between protecting these rights and promoting technological innovation remains an ongoing challenge in the field of intellectual property law. As we chart a course toward an ideal scenario, it is imperative to forge a legal landscape that acknowledges the evolving nature of artificial intelligence while safeguarding individual rights.