The recent judgment of Delhi High Court in Anil Kapoor vs. Simply Life India and Ors. is a major development in the area of personality rights, as it grants protection to actor Anil Kapoor’s individual persona, and personal attributes, against misuse, specifically through Artificial Intelligence (AI) tools used for creating deepfakes. The order is a first of its kind in India, and is another step forward in paving the way for a more robust regime targeting misuse of a celebrity’s attributes.
In Mr. Kapoor’s case, the Delhi High Court granted an ex-parte, omnibus injunction that effectively restrained 16 entities, and the world at large, from utilizing Mr.Kapoor’s name, likeness, image, and employing technological tools such as AI, face morphing, and GIFs for financial gain or commercial purposes. The court’s decision underscores the importance of safeguarding personality rights in the digital era and establishes a precedent for preventing unauthorized exploitation of celebrities’ identities.
It was in fact unauthorized usage which prompted Mr.Kapoor to approach the High Court and seek protection in the first place. Anand & Naik represented Mr.Kapoor in the matter and has led the way in securing crucial orders for protection of personality rights. One being last year, when the firm knocked the doors of the court on behalf of Mr. Amitabh Bachchan to seek protection of his personality rights, which was duly granted. The case of Amitabh Bachchan v. Rajat Nagi and Ors. was another remarkable development in the area of personality rights in India. The court granted an ad interim in rem (i.e. against the world) injunction against the unauthorized use of his personality and personal attributes such as his voice, name, images, likeness for commercial use. This was the first blanket John Doe order granted in India for the protection of personality rights.
The orders passed in Mr. Bachchan’s case and Mr. Kapoor’s case will go a long way in setting a precedent against unauthorized commercial exploitation of an individual’s persona.
Generative AI has recently been in the news on account of the SAG – AFTRA strike in the United States, where one of the primary issues is focused on the potential impact of AI in filmmaking. Concerns regarding usage of AI by studios to scan actors’ faces to generate digital performances are paramount. However, this is not limited to just Hollywood; AI generated voices, deepfake videos and 3D generated “life-like” figures have raised concerns in the entertainment industry at a global level. Actors are demanding some regulation on usage of AI in the entertainment industry – if kept unregulated, it could dramatically undermine the roles and livelihood of actors and celebrities alike, who could possibly be rendered entirely redundant.
The possibilities of AI application across the entire entertainment industry are boundless.
In May 2023, a track was released featuring the voices of Canadian rapper Drake and The Weeknd, which went viral on social media. The song utilized AI to replicate their voices and was even submitted to the Grammy’s.
ITVX’s Deep Fake Neighbour Wars, is a show that is focused on showing deepfakes of celebs in bizarre settings. One of the clips from the show depicts rapper Nicki Minaj and actor Tom Holland as a distraught couple, recounting a home invasion by Mark Zuckerberg.
Social media platforms are brimming with content using Deepfake AI tech – many creators in fact exclusively create content using this technology.
In the right context with due permission and authority, AI can open up a wide range of possibilities for celebrities. Applicability of AI tools for branding and brand creation will significantly ease the burden on celebrities, and help them market their image without actually having to go to the trouble of filming a spot or going to a photoshoot. Some recent examples in this regard are – Lionel Messi’s permission to Pepsico to use a deepfake version in their ad, and Paul McCartney’s final Beatles song which used John Lennon’s vocals from an old demo track to complete the song 40 years after his death.
On the flip side, there is also so much potential for miscreants to unlawfully utilize AI tech to gain mileage at the cost of the celebrity, without their permission.
Several other public figures have also successfully initiated action before courts for unlawful use of their image, likeness or other personality attributes, including Rajnikanth, Daler Mehndi, Barkha Dutt, Gautam Gambhir, amongst others.
What are ‘Personality Rights’?
Personality rights used in the context of a celebrity or public figure, primarily includes their privacy and publicity rights. The former right is the right to be left alone and the latter is the right to commercially control the use of own’s image and likeness. In India, there is no statute governing or recognizing personality rights. These rights have been protected under the broader spectrum of Intellectual Property Rights, fundamental rights guaranteed under Article 19 and 21 of the Constitution of India and the Common law rights. The Advertising Standards Council of India (ASCI) in its Code of Self-Regulation has also recognized the likelihood of misappropriation and exploitation of well-known personalities in advertisements.
It is imperative for celebrities to have control over the usage and commercialization of their persona in the form of their voice, signature, likeness, appearance, silhouette, images, gestures, expressions, mannerisms, distinctive characters and other facets of their personality.
There can be no doubt that free speech about a well-known person is protected in the form of write-ups, parody, satires, criticism etc., which is genuine. However, when the same results in jeopardising the individual’s personality and elements associated with the individual, it is illegal.
In the case of Michael Jordan v. Qiaodan Sports Company and Bairen Trading Company, the Shanghai Second Intermediate Court affirmed the popularity of basketball star Michael Jordan and aimed to protect the personality rights and related property rights of overseas celebrities. The court held that Qiaodan Sports, by knowingly using the name “Jordan” for trademark registration without authorization and registering related trademarks, including Michael Jordan’s former jersey number “23” and his sons’ names, had the intention to cause confusion among the public, constituting an infringement of Michael Jordan’s name right. As a remedy, the court ordered Qiaodan Sports to publicly apologize, cease using certain trademarks, and compensate Michael Jordan for mental injury and legal expenses, recognizing the importance of protecting celebrity name rights in China.
However, even after obtaining such orders, celebrities have to remain vigilant. Earlier this month, a fake doctored video of Mr. Bachchan on ‘Kaun Banega Crorepati’ was making the rounds on social media – this video showed Mr. Bachchan asking a contestant the question, which of the following Chief Ministers is called a “Ghoshna Machine”? The answer apparently being Mr. Shivraj Singh Chouhan as per the video. Legal action had to be initiated to takedown all the infringing content.
The breadth of the internet and the ease of access to unregulated AI tools makes it hard to effectively control one’s image and its rampant misuse. However, obtaining a John Doe order has far reaching consequences – making it a much simpler for a celebrity to exercise control over illegal use of their image.